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UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section13 or 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of earliest event reported): August 28, 2012 U.S. CONCRETE, INC. (Exact name of registrant as specified in its charter) Delaware
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Exhibit 10.5
UNDER OPTIUM CORPORATION
Pursuant to the Optium Corporation 2006 Stock Option and Incentive Plan as
amended through the date hereof (the “Plan”), Optium Corporation (the “Company”)
hereby grants to the Optionee named in the applicable Grant Notice an option
share, of the Company (the “Stock”) specified in the Grant Notice at the Option
Exercise Price per Share specified in the applicable Grant Notice subject to the
BELOW, AND SUBJECT TO THE DISCRETION OF THE COMMITTEE (AS DEFINED IN SECTION 2
OPTION SHALL BE EXERCISABLE WITH RESPECT TO THE NUMBER OF OPTION SHARES
INDICATED AS VESTED OPTION SHARES ON THE DATES AS SET FORTH ON THE APPLICABLE
GRANT NOTICE. ONCE EXERCISABLE, THIS STOCK OPTION SHALL CONTINUE TO BE
EXERCISABLE AT ANY TIME OR TIMES PRIOR TO THE CLOSE OF BUSINESS ON THE
EXPIRATION DATE SET FORTH IN THE APPLICABLE GRANT NOTICE, SUBJECT TO THE
PROVISIONS HEREOF AND OF THE PLAN.
OPTION, THE OPTIONEE MAY GIVE WRITTEN NOTICE TO THE COMMITTEE OF HIS OR HER
PURCHASED.
instrument acceptable to the Committee; (ii) through the delivery (or
otherwise satisfy any holding periods as may be required by the Committee;
other agreements as the Committee shall prescribe as a condition of such payment
also exercise pursuant to a paperless method if the Company establishes, for
itself or using the services of a third party, an automated
system, such as a system using an internet website or interactive voice
response. Payment instruments will be received subject to collection.
attested to.
TRANSFER AGENT UPON COMPLIANCE TO THE SATISFACTION OF THE COMMITTEE WITH ALL
THE COMMITTEE AS TO SUCH COMPLIANCE SHALL BE FINAL AND BINDING ON THE OPTIONEE.
THE TERMS HEREOF, THE COMPANY OR THE TRANSFER AGENT SHALL HAVE TRANSFERRED THE
SHARES TO THE OPTIONEE, AND THE OPTIONEE’S NAME SHALL HAVE BEEN ENTERED AS THE
SHALL HAVE FULL VOTING, DIVIDEND AND OTHER OWNERSHIP RIGHTS WITH RESPECT TO SUCH
SHARES OF STOCK.
HEREOF.
(A) TERMINATION BY REASON OF DEATH. IF THE OPTIONEE CEASES TO BE A
DIRECTOR BY REASON OF THE OPTIONEE’S DEATH, ANY PORTION OF THIS STOCK OPTION
OUTSTANDING ON SUCH DATE MAY BE EXERCISED BY HIS OR HER LEGAL REPRESENTATIVE OR
LEGATEE FOR A PERIOD OF 12 MONTHS FROM THE DATE OF DEATH OR UNTIL THE EXPIRATION
(B) OTHER TERMINATION. IF THE OPTIONEE CEASES TO BE A DIRECTOR FOR
ANY REASON OTHER THAN THE OPTIONEE’S DEATH, ANY PORTION OF THIS STOCK OPTION
OUTSTANDING ON SUCH DATE MAY BE EXERCISED FOR A PERIOD OF NINETY DAYS FROM THE
DATE OF TERMINATION OR UNTIL THE EXPIRATION DATE, IF EARLIER.
2
LEGATEE.
6. NO OBLIGATION TO CONTINUE AS A DIRECTOR. NEITHER THE PLAN NOR
THIS STOCK OPTION CONFERS UPON THE OPTIONEE ANY RIGHTS WITH RESPECT TO
CONTINUANCE AS A DIRECTOR.
7. NOTICES. NOTICES HEREUNDER SHALL BE MAILED OR DELIVERED TO THE
WRITING.
8. AMENDMENT. PURSUANT TO SECTION 16 OF THE PLAN, THE COMMITTEE MAY
AT ANY TIME AMEND OR CANCEL ANY OUTSTANDING PORTION OF THIS STOCK OPTION, BUT NO
SUCH ACTION MAY BE TAKEN THAT ADVERSELY AFFECTS THE OPTIONEE’S RIGHTS UNDER THIS
3
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Exhibit 10.2 ENGLISH TRANSLATION OF FORM OF PROMISSORY NOTE - EXECUTED DOCUMENT IS IN SPANISH Promissory Note Parras Cone de México, S.A. de C.V. (hereinafter the “Client”), by means of this promissory note, promises to pay unconditionally to Banco Nacional de México, S.A. Integrante del Grupo Financiero Banamex (hereinafter “Banamex”) the amount of US$3´600,000.00 dollars, no later than the 13:00 hours (New York City time), by bank deposit to the account number 10991186 that Banamex holds with Citibank N.A. in the branch office located in 399 Park Avenue, New York, New York, United States of America. The abovementioned amount will be paid in several amortizations pursuant the following dates and amounts: Number Expiration Date Amount 1 May 22, 2014 2 June 22, 2014 3 July 22, 2014 4 August 22, 2014 5 September 22, 2014 6 October 22, 2014 7 November 22, 2014 8 December 22, 2014 9 January 22, 2015 10 February 22, 2015 11 March 22, 2015 12 April 22, 2015 13 May 22, 2015 14 June 22, 2015 15 July 22, 2015 16 August 22, 2015 17 September 22, 2015 18 October 22, 2015 19 November 22, 2015 20 December 22, 2015 21 January 22, 2016 22 February 22, 2016 23 March 22, 2016 24 April 22, 2016 25 May 22, 2016 26 June 22, 2016 27 July 22, 2016 28 August 22, 2016 29 September 22, 2016 30 October 22, 2016 31 November 22, 2016 32 December 22, 2016 33 January 22, 2017 34 February 22, 2017 35 March 22, 2017 36 April 22, 2017 37 May 22, 2017 38 June 22, 2017 39 July 22, 2017 40 August 22, 2017 41 September 22, 2017 42 October 22, 2017 43 November 22, 2017 44 December 22, 2017 45 January 22, 2018 46 February 22, 2018 47 March 22, 2018 48 April 22, 2018 49 May 22, 2018 50 June 22, 2018 51 July 22, 2018 52 August 22, 2018 53 September 22, 2018 54 October 22, 2018 55 November 22, 2018 56 December 22, 2018 57 January 22, 2019 58 February 22, 2019 59 March 22, 2019 60 April 22, 2019 61 May 22, 2019 62 June 22, 2019 63 July 22, 2019 64 August 22, 2019 65 September 22, 2019 66 October 22, 2019 The Client binds itself to pay, as of this date and until the expiration date of this promissory note, the ordinary interests at the annual rate that results from adding 4.00 points to the Libor Rate. 2 The ordinary interests will be paid the last day of the corresponding interest period, on the understanding that: (i) the first interest period beginning on the execution date of this promissory note and ending on the numerical corresponding day of the next month; and (ii) the subsequent interest periods will begin the following day to the last day of the immediately preceding interest period and ending on the numerically corresponding day of the next month. The payments indicated herein must be made precisely on the corresponding due dates in the terms of this promissory note, or on the next Business Day (in Mexico and New York), without any additional cost, if the due date falls on a day that is not a Business Day in Mexico and New York. When, during the calendar month, a payment due cannot be made on the same numerical date as the established date, such payment must be made on the last Business Day in Mexico and New York of the corresponding month. In case of default on the timely and entire payment of the amounts owed to BANAMEX pursuant to this promissory note, the unpaid amount (except for ordinary interest) will only accrue default interest as of the date following the date due and until the day such amount is fully paid. All the amounts that Client must pay BANAMEX under this promissory note will be paid without any deductions or retentions and paid free of any taxes. The Client will pay all Taxes and expenses related to these to ensure that BANAMEX obtains whole amounts; except for the amounts that BANAMEX will be bound to pay as Income Tax. The Client will reimburse BANAMEX immediately for any amount that BANAMEX disburses for taxes on the amounts owed by the Client pursuant to this agreement and any other expense derived from any claim related, except for the amounts that BANAMEX will be bound to pay as Income Tax. For the resolution of any dispute arising herefrom, the parties submit to the jurisdiction of the courts of the Federal District, Mexico or the courts of the place in which this promissory note is signed, at the option of the plaintiff, specifically waiving to any other jurisdiction they may be entitled to for any reason. The Client waives to any filing or notice regarding the incompliance or payment or any other notice regarding of this promissory note. This Promissory Note is executed pursuant certain Credit Agreement with Mortgage Guaranty on Industrial Unit for the amount of US$7´500,000.00 dollars, entered by and between Banamex and the Client on April 15, 2014. The defined terms contained herein will have the meaning established in the Credit Agreement. The Client’s and Guarantor’s addresses, for purposes of this promissory note, will be the same as the ones mentioned in the Credit Agreement. 3 The parties mutually acknowledge each other personality and sign in Cuernavaca, Morelos, on April 22, 2014, giving a copy of this promissory note to the Client: The Client Represented by José Manuel González Lagunas Guarantor Burlington Morelos S.A. de C.V. Represented by José Manuel González Lagunas Guarantor Burlignton Yecapixtla, S.A. de C.V. Represented by José Manuel González Lagunas Guarantor Servicios Burlmex, S.A. de C.V. Represented by José Manuel González Lagunas Guarantor Manufacturas Parras Cone, S.A. de C.V. Represented by José Manuel González Lagunas Guarantor Casimires Burlmex, S.A. de C.V. Represented by José Manuel González Lagunas Guarantor Conen Denim Yecapixtla, S.A. de C.V. Represented by José Manuel González Lagunas 4
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Exhibit 10.25
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2006 EQUITY INCENTIVE PLAN
As amended and restated effective October 7, 2007
ARTICLE 1.
GENERAL PURPOSE OF PLAN; DEFINITIONS.
1.1 Purpose. The purposes of this 2006 Equity Incentive Plan are (a) to enable
the Company, and the Company’s subsidiaries and affiliates, to attract and
retain highly qualified personnel who will contribute to the success of the
Company, including the Company’s subsidiaries and certain affiliates, and (b) to
provide incentives to participants in this 2006 Equity Incentive Plan that are
linked directly to increases in stockholder value which will therefore inure to
1.2 Definitions. For purposes of this Plan, except as otherwise defined in this
Plan, capitalized terms shall have the meanings assigned to them in this Section
1.2.
administering the Plan in accordance with Section 2 of the Plan.
“Affiliate” means any entity or person that directly, or indirectly through one
the power to cause the direction of the management and policies of the entity,
“Applicable Law” means the requirements relating to the administration of stock
“Associated Award” shall have the meaning assigned to the term in Section 8.2.
“Award” means any award granted under the Plan.
“Cause” means (i) the commission of any act by the Participant of a theft,
embezzlement or fraud involving the Company or any Parent, Subsidiary or
Affiliate of the Company or otherwise, (ii) the Participant’s unauthorized use,
limitation, the Participant’s improper use or disclosure of confidential or
proprietary information), (iii) Participant’s breach of fiduciary duty to the
Company or any Parent, Subsidiary or Affiliate of the Company, or (iv) any
intentional act by the Participant which has a material detrimental effect on
the Company or an Affiliate’s reputation or business. An Award Agreement or any
employment agreement with an Eligible Recipient may further define the term
“Cause” with respect to any Award granted under the Plan to such Eligible
Recipient.
“Change in Control” shall be deemed to occur when any of the following events
first occurs:
(a) the sale, lease conveyance or other disposition of all or substantially all
(b) any person who is not currently a stockholder of the Company (or does not
currently have the right to acquire pursuant to any agreement, or upon exercise
of conversion rights, warrants, options or otherwise, securities of the Company)
(c) members of the Incumbent Board ceasing to constitute a majority of the Board
(d) any merger, consolidation or other transaction of the Company with or into
any other corporation, entity or person other than a transaction in which the
securities remaining outstanding or by their being converted into the voting
such transaction.
“Committee” means the compensation committee of the Board or any other committee
which the Board may appoint to administer the Plan. To the extent necessary and
desirable, the Committee shall be composed entirely of individuals who meet the
qualifications referred to in Section 162(m) of the Code, Rule 16b-3 under the
Exchange Act and the applicable rules of Nasdaq, any stock exchange or automated
quotation system on which the Common Stock is primarily quoted or listed. If at
any time or to any extent the Committee shall not administer the Plan, then the
Board.
“Common Stock” means the common stock, with a par value $0.001 per share as of
the date of adoption of the Plan by the Board, of the Company.
“Company” means Winner Medical Group Inc., a Nevada corporation, or any
successor corporation.
“Control” shall have the meaning assigned to the term in the definition of
Affiliate in this Section 1.2.
“Disability” means the inability of a Participant to perform substantially his
or her duties and responsibilities to the Company or to any Parent, Subsidiary
or Affiliate by reason of a physical or mental disability or infirmity for a
continuous period of six months, as determined by the Administrator. The date of
such Disability shall be the last day of such six-month period or the date on
which the Participant submits such medical evidence, satisfactory to the
Company, that the Participant has a physical or mental disability or infirmity
that will likely prevent the Participant from performing the Participant’s work
duties for a continuous period of six months or longer, as the case may be. An
Award Agreement or any employment agreement with an Eligible Recipient may
further define the term “Disability” with respect to any Award granted under the
Plan to such Eligible Recipient.
“Eligible Recipient” means an officer, director, employee, consultant or advisor
of the Company or of any Parent, Subsidiary or Affiliate. For purposes of the
Plan, the term “employee” shall include all those individuals whose service with
or for the Company and/or any Parent, Subsidiary or Affiliate of the Company, is
within the definition of “employee” in the “Rule as to the Use of Form S-8”
contained in the General Instructions for the registration statement on Form S-8
“Employee Director” means any director of the Company who is also an employee of
the Company or of any Parent, Subsidiary or Affiliate.
“Exercise Price” means the per share price at which a holder of an Award may
purchase the Shares issuable upon exercise of such Award.
a share of Common Stock as determined by the Administrator in good faith through
reasonable application of a reasonable valuation method; provided, however, that
Fair Market Value shall mean (i) if the Common Stock is listed or admitted to
trade on a national securities exchange, the closing price of the Common Stock,
as published in The Wall Street Journal, of the principal national securities
exchange on which the Common Stock is so listed or admitted to trade, on such
closing price of the Common Stock as quoted on the next preceding date on which
admitted to trade on a national securities exchange but is listed and quoted on
Nasdaq, the last sale price for the Common Stock on such date as reported by
Nasdaq, or, if there is no reported trading of the Common Stock on such date,
then the last sale price for the Common Stock on the next preceding date on
which there was trading in the Common Stock; (iii) if the Common Stock is not
listed or admitted to trade on a national securities exchange and is not listed
and quoted on Nasdaq, the last sale price, or, if a last sale price is not
quoted, the mean between the closing bid and asked prices for the Common Stock
on such date, in either case, as furnished by NASD; (iv) if the Common Stock is
not listed or admitted to trade on a national securities exchange, not listed
and quoted on Nasdaq and the last sale price and closing bid and asked prices
are not furnished by the NASD, the last sale price, or, if a last sale price is
not quoted, the mean between the closing bid and asked prices for the Common
Stock on such date, in either case, as furnished by the Pink Sheets, or similar
organization; (v) if the stock is not listed or admitted to trade on a national
securities exchange, not listed and quoted on Nasdaq and if the last sale price
and bid and asked prices for the Common Stock are not furnished by the NASD,
Pink Sheets or a similar organization, the value established in good faith by
the Administrator in good faith through reasonable application of a reasonable
valuation method; and (vi) in the case of a Limited Stock Appreciation Right,
the Fair Market Value of a share of Common Stock shall be the “Change in Control
Price” (as defined in the Award Agreement evidencing such Limited Stock
Appreciation Right) of a share of Common Stock as of the date of exercise.
Notwithstanding the foregoing, Fair Market Value must in all instances be
“Family Member” means, with respect to any Participant, any of the following:
(a) such Participant’s child, stepchild, grandchild, parent, stepparent,
including any such person with such relationship to the Participant by adoption;
(b) any person (other than a tenant or employee) sharing such Participant’s
household;
(c) a trust in which the persons identified in clauses (a) and (b) above have
more than fifty percent of the beneficial interest;
(d) a foundation in which the persons identified in clauses (a) and (b) above or
the Participant control the management of assets; or
(e) any other entity in which the persons identified in clauses (a) and (b)
above or the Participant own more than fifty percent of the voting interest.
“Incumbent Board” means (i) all individuals serving on the Board on the date of
the initial adoption of the Plan by the Board of Directors, to the extent that
they continue to serve as members of the Board, and (ii) all individuals who
become members of the Board after the date of the initial adoption of this Plan
by the Board of Directors, if such individuals’ election or nomination for
election as directors was approved by a vote of at least a majority of the Board
prior to such election, to the extent they continue to serve as members of the
Board.
“Limited Stock Appreciation Right” means a Stock Appreciation Right that can be
exercised only in the event of a “Change in Control” (as defined in the Award
Agreement evidencing such Limited Stock Appreciation Right).
“Maximum Value” shall have the meaning assigned to the term in Section 8.2.
of the Company or of any Parent, Subsidiary or Affiliate.
Option, including, but not limited to, any Option that provides (as of the time
such Option is granted) that it will not be treated as an Incentive Stock
Option.
“Option” means an option to purchase Shares granted pursuant to Article 5 of the
Plan.
(other than the Company) owns stock possessing 50% or more of the combined
chain.
“Participant” means any Eligible Recipient selected by the Administrator,
pursuant to the Administrator’s authority hereunder, to receive grants of
Options, Stock Appreciation Rights, Limited Stock Appreciation Rights, awards of
Restricted Stock, Performance Shares, other types of awards, or any combination
of the foregoing, or any person (including any estate) to whom an Award has been
assigned or transferred as permitted hereunder.
“Performance Goal” means the goals determined by the Administrator, in its
discretion, to be applicable to a Participant with respect to an Award. As
may provide for a targeted level or levels of achievement which may be based on
such measure or measures of performance, which may include, but need not be
limited to, performance of the Participant, the Company, one or more Subsidiary,
Parent or Affiliate of the Company, or one or more divisions or units thereof,
or any combination of the foregoing. The Performance Goals may differ from
measured in absolute terms or relative to industry or other indices, or a
combination thereof. Such Performance Goals shall be based on one or more of the
following criteria: (i) earnings; (ii) earnings per share; (iii) earnings
growth; (iv) return on assets; (v) return on equity; (vi) revenue; (vii)
profits; (viii) profit growth; (ix) profit-related return ratios; (x) cost
management; (xi) dividend payout ratios; (xii) market share; (xiii) economic
value added; (xiv) cash flow; (xv) total shareholder return; (xvi) book value;
(xvii) stock price return; (xviii) price earnings ratio; and (xix) operating
income. The Administrator shall have the authority to make equitable adjustments
affecting the Company, or any Parent, Subsidiary or Affiliate of the Company, or
the financial statements of the Company, or any Parent, Subsidiary or Affiliate
of the Company, in response to changes in Applicable Law, or to account for
business or related to a change in accounting principles; provided, however,
that (i) to the extent required for compliance with the exclusion from the
limitation on deductibility of compensation under Section 162(m) of the Code, no
adjustment shall be made that would result in an increase in the compensation of
any Participant whose compensation is subject to the limitation on deductibility
under Section 162(m) of the Code for the applicable year; and (ii) any
adjustment either shall not cause Section 409A of the Code to apply to an Award
for which such section is not intended to apply or shall not cause an Award
which is subject to Section 409A to fail to comply with Section 409A of the
Code. The Administrator also may adjust the Performance Goals and measurements
applicable to Awards and thereby reduce the amount to be received by any
Participant pursuant to such Awards if and to the extent that the Administrator
deems it appropriate.
“Performance Grant” shall have the meaning assigned to the term in Section 8.1.
“Performance Grant Actual Value” shall have the meaning assigned to the term in
Section 8.1.
“Performance Grant Award Period” shall have the meaning assigned to the term in
Section 8.3.
“Performance Shares” means Shares that are subject to restrictions based upon
the attainment of specified performance objectives granted pursuant to Article
8.
“Permitted Transfer” means, as authorized by the Plan and the Administrator,
with respect to an interest in a Non-Qualified Stock Option, any transfer
effected by the Participant during the Participant’s lifetime of an interest in
such Non-Qualified Stock Option but only such transfers which are by gift or
pursuant to domestic relations orders. A permitted transfer does not include any
transfer for value and neither transfers under a domestic relations order in
settlement of marital property rights or to an entity in which more than 50% of
the voting interests are owned by Family Members or the Participant in exchange
for an interest in that entity are deemed transfers for value.
“Pink Sheets” means Pink Sheets, LLC.
“Plan” means this 2006 Equity Incentive Plan, as amended from time to time.
“Related Employment” means the employment or performance of services by an
individual for an employer that is neither the Company, any Parent, Subsidiary
nor Affiliate, provided that (i) such employment or performance of services is
undertaken by the individual at the request of the Company or any Parent,
Subsidiary or Affiliate, (ii) immediately prior to undertaking such employment
or performance of services, the individual was employed by or performing
services for the Company or any Parent, Subsidiary or Affiliate or was engaged
in Related Employment, and (iii) such employment or performance of services is
in the best interests of the Company and is recognized by the Administrator, as
Related Employment. The death or Disability of an individual during a period of
Related Employment shall be treated, for purposes of this Plan, as if the death
or onset of Disability had occurred while the individual was employed by or
performing services for the Company or a Parent, Subsidiary or Affiliate.
“Restricted Stock” means Shares subject to certain restrictions granted pursuant
to Article 7.
“Restriction Period” means the period of time Restricted Stock or any other
Award remains subject to restrictions imposed on the Award. Such restrictions
may be based on continuous service, the achievement of Performance Goals, the
occurrence of other events as determined by the Administrator, or a combination
thereof.
“Rule 16b-3” shall have the meaning assigned to the term in Section 2.1.
time to time.
“Shares” means shares of Common Stock reserved for issuance under or issued
pursuant to the Plan, as adjusted pursuant to Article 4, and any successor
security.
Article 6 to receive an amount equal to the excess, if any, of (i) the Fair
surrendered, of the Shares covered by such right or such portion thereof, over
(ii) the aggregate exercise price of such right or such portion thereof as
established by the Administrator at the time of the grant of such Award (or such
other exercise price thereafter established by the Administrator with the
consent of the Participant granted such Award where required by the Plan).
“Stock Bonus” means an Award granted pursuant to Article 9.
than the last corporation) in the unbroken chain owns stock possessing 50% or
“Ten Percent Stockholder” shall have the meaning assigned to the term in Section
5.4.
Participant, that such Participant has for any reason ceased to provide services
advisor to the Company or any Parent, Subsidiary or Affiliate of the Company. A
approved by the Administrator, provided, that such leave is for a period of not
more than three months, unless reemployment or reinstatement upon the expiration
of such leave is provided by contract or statute. In the case of any Participant
on an approved leave of absence, the Administrator may make such provisions
respecting suspension of vesting of any Award previously granted to such
Participant while such Participant is on leave from the Company or any Parent,
Subsidiary or Affiliate of the Company as the Administrator may deem
appropriate, except that in no event may an Option be exercised after the
expiration of the term set forth in the Award Agreement with respect to such
Option. The Administrator will have sole discretion to determine (i) the effect
upon an Award of any change in the Participant’s status from an employee to a
consultant, director, consultant or advisor and (ii) whether a Participant has
ceased to provide services and the applicable Termination Date.
“Termination Date” means the effective date of Termination, as determined by the
Administrator.
ARTICLE 2.
ADMINISTRATION.
2.1 Administration in Accordance with the Code and Exchange Act. The Plan shall
be administered in accordance with the requirements of Section 162(m) of the
Code (but only to the extent necessary and desirable to maintain qualification
of Awards under the Plan under Section 162(m) of the Code) and, to the extent
applicable, Rule 16b-3 under the Exchange Act (“Rule 16b-3”) or the rules of the
Nasdaq, any stock exchange or automated quotation system on which the Common
Stock is primarily quoted or listed, by the Board or, at the Board’s sole
discretion, by the Committee, which shall be appointed by the Board, and which
2.2 Other Administration. The Board or a Committee may delegate to an
2.3 Administrator’s Powers. Subject to the general purposes, terms and
conditions of this Plan, the Administrator will have full power to implement and
carry out this Plan. The Administrator will have the authority to:
agreement or document executed pursuant to this Plan (including sub-plans and
Plan addenda);
(including rules and regulations relating to sub-plans and Plan addenda) or any
Award;
(d) determine the form. terms and conditions, not inconsistent with the terms of
the Plan, of Awards. Such terms and conditions include, but are not limited to,
granted or thereafter;
(h) determine the vesting, exercisability and payment of Awards, including any
vesting and/or exercisability acceleration;
the Plan, any Award or any Award Agreement;
(j) make any adjustments necessary or desirable as a result of the granting of
an Award to an Eligible Recipient located outside the United States;
(l) to modify or amend each Award, including, but not limited to, the
Section may not impair any outstanding Award unless agreed to in writing by the
Participant;
(m) to authorize conversion or substitution under the Plan of any or all stock
acquisition or other transaction. The Conversion Awards may be Nonstatutory
with respect to the conversion of stock appreciation rights in the acquired
entity, the Conversion Awards shall be Nonstatutory Stock Options. Unless
otherwise determined by the Administrator at the time of conversion or
Awards generally granted by the Company under the Plan; and
(n) make all other determinations necessary or advisable for the administration
of the Plan.
2.4 Administrator’s Discretion Final. Any determination made by the
Administrator with respect to any Award will be made in the Administrator’s sole
will be final and binding on the Company and on all persons having an interest
in any Award under the Plan.
2.5 Administrator’s Method of Acting; Liability. The Administrator may act only
by a majority of its members then in office, except that the members thereof may
execute and deliver documents or to take any other ministerial action on behalf
of the Committee with respect to Awards made or to be made to Eligible
Recipients. No member of the Administrator and no officer of the Company shall
any other member of the Administrator or by any officer of the Company in
ARTICLE 3.
PARTICIPATION.
3.1 Affiliates. If a Parent, Subsidiary or Affiliate of the Company wishes to
Board, the board of directors or other governing body of the Parent, Subsidiary
or Affiliate, as the case may be, shall adopt a resolution in form and substance
satisfactory to the Administrator authorizing participation by the Parent,
Subsidiary or Affiliate in the Plan. A Parent, Subsidiary or Affiliate
participating in the Plan may cease to be a participating company at any time by
action of the Board or by action of the board of directors or other governing
body of such Parent, Subsidiary or Affiliate, which latter action shall be
of a certified copy of a resolution of the Parent, Subsidiary or Affiliate’s
board of directors or other governing body taking such action. If the
participation in the Plan of a Parent, Subsidiary or Affiliate shall terminate,
such termination shall not relieve the Parent, Subsidiary or Affiliate of any
obligations theretofore incurred by the Parent, Subsidiary or Affiliate, except
as may be approved by the Administrator.
3.2 Participants. Incentive Stock Options may only be granted to employees
within the meaning of Section 422 of the Code and the regulations thereunder
(including officers and directors who are also employees) of the Company, or any
employees, officers, directors, consultants, independent contractors and
advisors of the Company or any Parent, Subsidiary or Affiliate of the Company;
provided, that such consultants, contractors and advisors render bona fide
services to the Company or such Parent, Subsidiary or Affiliate of the Company
transaction. An Eligible Recipient may be granted more than one Award under the
Plan.
ARTICLE 4.
AWARDS UNDER THE PLAN.
4.1 Types of Awards. Awards under the Plan may include, but need not be limited
to, one or more of the following types, either alone or in any combination
thereof:
(a) Options;
(b) Stock Appreciation Rights;
(d) Performance Grants;
(e) Stock Bonuses; and
(f) any other type of Award deemed by the Committee to be consistent with the
purposes of the Plan (including, but not limited to, Awards of, or options or
similar rights granted with respect to, unbundled stock units or components
thereof, and Awards to be made to participants who are foreign nationals or are
employed or performing services outside the United States).
The Administrator may only award or grant those Awards that either comply with
4.2 Number of Shares Available Under the Plan. Subject to Section 4.4, the total
Plan will be 5,000,000. To the extent that any Award payable in Shares is
forfeited, canceled, returned to the Company for failure to satisfy vesting
terminates without payment being made thereunder, the Shares covered by such
Award will no longer be charged against the foregoing 5,000,000 Share maximum
limitation and may again be made subject to Award(s) under the Plan.
treasury shares.
The number of Shares which are transferred to the Company by a Participant to
pay the exercise or purchase price of an Award will be subtracted from the
number of Shares issued with respect to such Award for the purpose of counting
Shares used under the Plan. Shares withheld to pay withholding taxes in
connection with the exercise or repayment of an Award will be counted as used
under the Plan. In addition, shares covered by an Award which is settled in cash
will not be counted as used under the Plan.
4.3 Reservation of Shares. At all times, the Company shall reserve and keep
requirements of all outstanding Options granted under the Plan and all other
outstanding but unexercised Awards granted under the Plan.
4.4 Adjustment in Number of Shares Available Under the Plan. In the event that
the number of outstanding shares of Common Stock is changed by a stock dividend,
without consideration, then (a) the number of Shares reserved for issuance under
the Plan, (b) the number of Shares that may be granted pursuant to the Plan, and
(c) the Exercise Prices of and number of Shares subject to outstanding Options
and other Awards, will be proportionately adjusted, subject to any required
applicable securities laws; provided, however, that, upon occurrence of such an
event, fractions of a Share will not be issued upon exercise of an Award but
will, upon such exercise, either be replaced by a cash payment equal to the Fair
Market Value of such fraction of a Share on the effective date of such an event
Administrator. Notwithstanding the foregoing, (i) with respect to Incentive
Stock Options, any such adjustment pursuant to this Section 4.4 shall be made in
a manner so as to not constitute a “modification” within the meaning of Section
424(h) of the Code and the regulations thereunder; and (ii) any adjustment
either shall not cause Section 409A of the Code to apply to an Award for which
such section is not intended to apply or shall not cause an Award which is
subject to Section 409A to fail to comply with Section 409A of the Code.
4.5 Rights with Respect to Common Shares and Other Securities.
(a) Unless otherwise determined by the Administrator, a Participant to whom an
Award of Restricted Stock has been made (and any person succeeding to such
Participant’s rights with respect to such Award pursuant to the Plan) shall
have, after issuance of a certificate or copy thereof for the number of Shares
so awarded and prior to the expiration of the Restriction Period or the earlier
repurchase of such Shares as provided in the Plan or Award Agreement with
respect to such Award of Restricted Stock, ownership of such Shares, including
the right to vote the same and to receive dividends or other distributions made
or paid with respect to such Shares (provided that such Shares, and any new,
additional or different shares, or other securities or property of the Company,
or other forms of consideration which the Participant may be entitled to receive
with respect to such Shares as a result of a stock split, stock dividend or any
other change in the corporate or capital structure of the Company, shall be
subject to the restrictions of the Plan as determined by the Administrator),
pursuant to the Plan. Notwithstanding the foregoing, unless otherwise determined
by the Administrator, a Participant with whom an Award Agreement is made to
issue Shares in the future shall have no rights as a stockholder with respect to
Shares related to such Award Agreement until a stock certificate evidencing such
Shares is issued to such Participant.
(b) Unless otherwise determined by the Administrator, a Participant to whom a
grant of Stock Options, Stock Appreciation Rights, Performance Grants or any
other Award is made (and any person succeeding to such Participant’s rights
pursuant to the Plan) shall have no rights as a stockholder with respect to any
Shares or other instrument of ownership, if any, is issued to such Participant.
Except as provided in Section 4.4, no adjustment shall be made for dividends,
4.6 Limits on Awards Under the Plan.
(a) Subject to adjustment as provided in Section 4.4, not more than an aggregate
of 5,000,000 Shares may be issued under the Plan as Incentive Stock Options.
(b) Subject to adjustment as provided in Section 4.4, the maximum number of
shares of Common Stock with respect to which Options, Stock Appreciation Rights,
or Limited Rights, or a combination thereof, may be granted during any calendar
year to any individual Participant shall be 1,500,000, and the maximum number of
Shares with respect to which Restricted Stock may be granted during any calendar
year to any individual Participant shall be 1,500,000. These limitations shall
(c) Subject to adjustment as provided in Section 4.4, the maximum number of
shares of Common Stock with respect to which Performance Grants may be granted
during any calendar year to any individual Participant shall be 1,500,000. This
limit shall be applied and construed consistently with Section 162(m) of the
Code.
(d) The maximum dollar value of Performance Grants that may be awarded during
any calendar year to any individual Participant shall be equal to the value of
1,500,000 shares determined as of the first business day of the year of grant.
This limit shall be applied and construed consistently with Section 162(m) of
the Code.
ARTICLE 5.
STOCK OPTIONS.
5.1 Grant; Determination of Type of Option. The Administrator may grant one or
more Options to an Eligible Recipient and will determine (a) whether each such
Option will be an Incentive Stock Option or a Non-Qualified Stock Option, (b)
the number of Shares subject to each such Option, (c) the Exercise Price of each
such Option, (d) the period during which each such Option may be exercised, and
(e) all other terms and conditions of each such Option, subject to the terms and
conditions of this Article 5. The Administrator may grant an Option either alone
or in conjunction with Stock Appreciation Rights, Performance Grants or other
Awards, either at the time of grant or by amendment thereafter.
5.2 Form of Option Award Agreement. Each Option granted under the Plan will be
Incentive Stock Option or a Non-Qualified Stock Option, and will be in such form
and contain such provisions (which need not be the same for each Participant or
Option) as the Administrator may from time to time approve, and which will
Administrator makes the determination to grant such Option, unless otherwise
5.4 Exercise Period. Each Option shall be exercisable within the times or upon
the occurrence of one or more events determined by the Administrator and set
forth in the Award Agreement governing such Option; provided, however, that no
Option will be exercisable after the expiration of ten years from the date the
Option is granted; and provided, further, however, that no Incentive Stock
Option granted to a person who directly or by attribution owns more than 10% of
Parent or Subsidiary of the Company (each, a “Ten Percent Stockholder”) will be
Stock Option is granted. The Administrator also may provide for an Option to
in such number of Shares or percentage of Shares as the Administrator
determines. Unless otherwise determined by the Administrator, an Option shall be
exercisable as follows:
(a) up to 25% of the number of Shares subject to such Option commencing on the
first anniversary of the date of grant of such Option;
(b) up to an additional 25% of the number of Shares subject to such Option
commencing on the second anniversary of the date of grant of such Option;
(c) up to an additional 25% of the number of Shares subject to such Option
commencing on the third anniversary of the date of grant of such Option; and
(d) up to an additional 25% of the number of Shares subject to such Option
commencing on the fourth anniversary of the date of grant of such Option.
5.5 Exercise Price. The Exercise Price of an Option will be determined by the
Administrator when the Option is granted and may be not less than 100% of the
per share Fair Market Value of the Shares subject to such Option on the date of
grant of such Option; provided, however, that the Exercise Price of any
Incentive Stock Option granted to a Ten Percent Stockholder will not be less
than 110% of the per share Fair Market Value of such Shares on the date of such
grant. Payment for the Shares purchased shall be made in accordance with Article
5.6 Method of Exercise. An Option may be exercised only by delivery to the
Company of an irrevocable written exercise notice (a) identifying the Option
being exercised, (b) stating the number of Shares being purchased, (c) providing
any other matters required by the Award Agreement with respect to such Option,
and (d) containing such representations and agreements regarding Participant’s
required or desirable by the Company to comply with Applicable Law. Such
exercise notice shall be accompanied by payment in full of the Exercise Price
for the number of Shares being purchased in accordance with Article 10 and the
executed Award Agreement with respect to such Option.
5.7 Termination. Unless otherwise provided in an Award Agreement, exercise of
Options shall be subject to the following:
then the Participant may exercise each of such Participant’s Options (i) only to
the extent that such Options would have been exercisable on the Termination Date
and (ii) no later than three months after the Termination Date, but in any
event, no later than the original expiration date of such Option;
other than for Cause or because of Participant’s Disability), then each of such
Participant’s Options (i) may be exercised only to the extent that such Option
would have been exercisable by Participant on the Termination Date and (ii) must
be exercised by Participant (or Participant’s legal representative or authorized
assignee) no later than twelve months after the Termination Date, but in any
event no later than the original expiration date of such Option.
(c) Notwithstanding the provisions in paragraphs 5.7(a) and 5.7(b), if a
estate nor such other person who may then hold an Option shall be entitled to
exercise such Option whatsoever, whether or not, after the Termination Date, the
Participant may receive payment from the Company or any Parent, Subsidiary or
Affiliate of the Company for vacation pay, for services rendered prior to the
Termination Date, for services rendered for the day on which Termination occurs,
for salary in lieu of notice, for severance or for any other benefits; provided,
however, in making such a determination, the Administrator shall give the
Participant an opportunity to present to the Administrator evidence on
Participant’s behalf that the provisions of this paragraph 5.7(c) should not
apply and, in the alternative, paragraph 5.7(a) or 5.7(b) shall apply; provided,
further, however, that, for the purpose of this paragraph 5.7(c), Termination
shall be deemed to occur on the date when the Company dispatches notice or
advice to the Participant that such Participant is Terminated.
5.8 Limitations on Exercise. The Administrator may specify a reasonable minimum
number of Shares that may be purchased on any exercise of an Option, provided,
for the full number of Shares for which the Option is then exercisable.
5.9 Limitations on Incentive Stock Options. The aggregate Fair Market Value (as
determined as of the date of grant) of Shares with respect to which an Incentive
Stock Option are exercisable for the first time by a Participant during any
calendar year (under the Plan or under any other incentive stock option plan of
the Company, and any Parent, Subsidiary and Affiliate of the Company) will not
exceed $100,000. This $100,000 limitation shall be applied by taking Options
into account in the order in which granted. An Incentive Stock Option shall be
deemed to be a Non-Qualified Stock Option to the extent that the foregoing
$100,000 limitation is exceeded. In the event that the Code or the regulations
promulgated thereunder are amended after the effective date of the Plan to
subject to Incentive Stock Options, such different limit will be automatically
5.10 Modification, Extension or Renewal. The Administrator may modify, extend or
renew any outstanding Option and authorize the grant of one or more new Options
in substitution therefor; provided that (i) any such action may not, without the
any Option previously granted; and (ii) the Administrator shall consider the
impact of Section 409A of the Code on any such modification, extension, renewal,
or substitution. Any outstanding Incentive Stock Option that is modified,
Section 424(h) and other applicable provisions of the Code.
5.11 No Disqualification. Notwithstanding any other provision in the Plan, no
term of the Plan relating to an Incentive Stock Option will be interpreted,
without the consent of the Participant affected, to disqualify any Incentive
5.12 Prohibition Against Transfer. No Option may be sold, assigned, transferred,
descent and distribution or pursuant to a domestic relations order, and a
Participant’s Option shall be exercisable during such Participant’s lifetime
only by such Participant or such person receiving such Option pursuant to a
domestic relations order.
ARTICLE 6.
STOCK APPRECIATION RIGHTS.
6.1 Grant of Stock Appreciation Rights.
(a) The Administrator may grant Stock Appreciation Rights either alone, or in
conjunction with the grant of an Option, Performance Grant or other Award,
either at the time of grant or by amendment thereafter. Each Award of Stock
Appreciation Rights granted under the Plan shall be evidenced by an instrument
in such form as the Administrator shall prescribe from time to time in
accordance with the Plan and shall comply with the following terms and
conditions, and with such other terms and conditions, including, but not limited
to, restrictions upon the Award of Stock Appreciation Rights or the Shares
issuable upon exercise thereof, as the Administrator shall establish.
(b) The Administrator shall determine the number of Shares to be subject to each
Award of Stock Appreciation Rights. The number of Shares subject to an
outstanding Award of Stock Appreciation Rights may be reduced on a
share-for-share or other appropriate basis, as determined by the Administrator,
to the extent that Shares under such Award of Stock Appreciation Rights are used
to calculate the cash, Shares, or other securities or property of the Company,
or other forms of payment, or any combination thereof, received pursuant to
exercise of an Option attached to such Award of Stock Appreciation Rights, or to
the extent that any other Award granted in conjunction with such Award of Stock
Appreciation Rights is paid.
6.2 Prohibition Against Transfer. No Award of Stock Appreciation Rights may be
except by will or the laws of the descent and distribution or pursuant to a
domestic relations order, and Stock Appreciation Rights Awarded to a Participant
shall be exercisable during such Participant’s lifetime only by such Participant
or such person receiving such Stock Appreciation Rights pursuant to a domestic
relations order. Unless the Administrator determines otherwise, the Award of
Stock Appreciation Rights to a Participant shall not be exercisable for at least
six months after the date of grant, unless such Participant is Terminated before
the expiration of such six-month period by reason of such Participant’s
Disability or death.
6.3 Exercise. The Award of Stock Appreciation Rights shall not be exercisable:
(a) in the case of any Award of Stock Appreciation Rights that are attached to
an Incentive Stock Option granted to a Ten Percent Employee, after the
expiration of five years from the date such Incentive Stock Option is granted,
and, in the case of any other Award of Stock Appreciation Rights, after the
expiration of ten years from the date of such Award. Any Award of Stock
Appreciation Rights may be exercised during such period only at such time or
times and in such installments as the Administrator may establish;
(b) unless the Option or other Award to which the Award of Stock Appreciation
Rights is attached is at the time exercisable; and
(c) unless the Participant exercising the Award of Stock Appreciation Rights has
been, at all times during the period beginning with the date of the grant
thereof and ending on the date of such exercise, employed by or otherwise
performing services for the Company or any Parent, Subsidiary or Affiliate of
the Company, except that
(i) in the case of any Award of Stock Appreciation Rights (other than those
attached to an Incentive Stock Option), if such Participant is Terminated solely
by reason of a period of Related Employment, the Participant may, during such
period of Related Employment, exercise the Award of Stock Appreciation Rights as
if such Participant had not been Terminated;
(ii) if such Participant is Terminated by reason of such Participant’s
Disability or early, normal or deferred retirement under an approved retirement
program of the Company or any Parent, Subsidiary or Affiliate of the Company (or
such other plan or arrangement as may be approved by the Administrator for this
purpose) while holding an Award of Stock Appreciation Rights which has not
expired and has not been fully exercised, such Participant may, at any time
within three years after the Termination Date (but in no event after the Award
of Stock Appreciation Rights has expired), exercise the Award of Stock
Appreciation Rights with respect to any Shares as to which such Participant
could have exercised the Award of Stock Appreciation Rights on the Termination
Date, or with respect to such greater number of Shares as determined by the
Administrator;
(iii) if such Participant is Terminated for reasons other than Related
Employment, Disability, early, normal or deferred retirement or death while
holding an Award of Stock Appreciation Rights which has not expired and has not
been fully exercised, such person may exercise the Award of Stock Appreciation
Rights at any time during the two year period following the Termination Date
(but in no event after the Award of Stock Appreciation Rights expires) following
such Participant’s Termination Date with respect to any Shares as to which such
Participant could have exercised the Award of Stock Appreciation Rights on such
Participant’s Termination Date or as otherwise permitted by the Administrator;
or
(iv) if any Participant to whom an Award of Stock Appreciation Rights has been
granted shall die holding an Award of Stock Appreciation Rights which has not
expired and has not been fully exercised, such Participant’s executors,
within one year after the date of death (but in no event after the Award of
Stock Appreciation Rights has expired), exercise the Award of Stock Appreciation
Rights with respect to any Shares as to which the decedent Participant could
have exercised the Award of Stock Appreciation Rights at the time of such death,
or with respect to such greater number of Shares as may be determined by the
Administrator.
6.4 Exercise.
(a) An Award of Stock Appreciation Rights shall entitle the Participant (or any
person entitled to act under the provisions of clause (iv) of Paragraph 6.3(c))
to either (i) exercise such Award and receive payment in accordance with such
Award or (ii) surrender unexercised the Option (or other Award) to which the
Stock Appreciation Rights is attached (or any portion of such Option or other
Award) to the Company and to receive from the Company in exchange therefor,
without payment to the Company, that number of Shares having an aggregate value
equal to the excess of the Fair Market Value of one Share, at the time of such
exercise, over the Exercise Price per share, times the number of Shares subject
to the Award or the Option (or other Award), or portion thereof, which is so
exercised or surrendered, as the case may be. The Administrator shall be
entitled to elect to settle the obligation arising out of the exercise of Stock
Appreciation Rights by the payment of cash or other securities or property of
the Company, or other forms of payment, or any combination thereof, as
determined by the Administrator, equal to the aggregate value of the Shares the
Company would otherwise be obligated to deliver. Any such election by the
Administrator shall be made as soon as practicable after the receipt by the
Company of written notice of the exercise of such Stock Appreciation Rights. The
value of a Share, other securities or property of the Company, or other forms of
payment determined by the Administrator for this purpose shall be the Fair
Market Value of a Share on the last business day next preceding the date of the
election to exercise such Stock Appreciation Rights, unless the Administrator
determines otherwise and is set forth in the Award Agreement with respect to
(b) An Award of Stock Appreciation Rights may provide that such Stock
Appreciation Rights shall be deemed to have been exercised at the close of
business on the business day preceding the expiration date of such Stock
Appreciation Rights or of the related Option (or other Award), or such other
date as specified by the Administrator, if at such time such Stock Appreciation
Rights has a positive value. Such deemed exercise shall be settled or paid in
the same manner as a regular exercise thereof as provided in Paragraph 6.4(a).
6.5 Fractional Shares. No fractional shares may be delivered under this Article
6, but, in lieu thereof, a cash or other adjustment shall be made as determined
by the Administrator.
ARTICLE 7.
RESTRICTED STOCK.
7.1 Grant. An Award of Restricted Stock is an offer by the Company to sell to an
Eligible Recipient Shares that are subject to restrictions. The Administrator
may purchase, the Exercise Price to be paid, the restrictions to which the
Stock Award, subject to the provisions of this Article 7.
7.2 Form of Restricted Stock Award. All purchases under an Award of Restricted
Stock will be evidenced by an Award Agreement that will be in such form (which
need not be the same for each Award of Restricted Stock or Participant) as the
Administrator will from time to time approve, and will comply with and be
will be accepted by the Participant’s execution and delivery of the Award
Agreement evidencing the offer to purchase the Restricted Stock and full payment
for the Shares to the Company within 30 days from the date such Award Agreement
is tendered to such Eligible Recipient. If such Eligible Recipient does not
execute and deliver such Award Agreement along with full payment for the Shares
to the Company within such 30 day period, then such offer will terminate, unless
7.3 Purchase Price. The Exercise Price of Shares sold pursuant to an Award of
Restricted Stock will be determined by the Administrator on the date such Award
case the Exercise Price will be 100% of the per share Fair Market Value of the
Shares subject to the Award on the date such Award is granted. Payment of the
Exercise Price may be made in accordance with Article 10 of the Plan.
7.4 Terms of Restricted Stock Awards. Each Award of Restricted Stock shall be
subject to such restrictions as the Administrator may impose. These restrictions
may be based upon completion of a specified length of service with the Company
or any Parent, Subsidiary or Affiliate of the Company, or upon completion of the
Performance Goals as set out in advance in the Participant’s individual Award
Agreement. Awards of Restricted Stock may vary from Participant to Participant
and between groups of Participants. Prior to the grant of an Award of Restricted
Stock, the Administrator shall:
(a) determine the nature, length and starting date of any Restriction Period for
the Restricted Stock Award;
(b) determine the Performance Goals, if any, to be used to measure performance;
and
Prior to the payment of any Restricted Stock pursuant to an Award, the
Administrator shall determine the extent to which such Restricted Stock Award
has been earned and certify in writing that any Performance Goals and any other
material terms were in fact satisfied. Restriction Periods may overlap and
Awards that are subject to different Restriction Periods and having different
7.5 Termination During Restriction Period. If a Participant is Terminated during
a Restriction Period with respect to any Award of Restricted Stock for any
reason, then such Participant will be entitled to payment (whether in Shares,
cash or otherwise) with respect to the Restricted Stock Award only to the extent
earned as of the date of Termination in accordance with the Award Agreement with
respect to such Restricted Stock, unless the terms of such Award Agreement
provides otherwise or the Administrator determines otherwise.
ARTICLE 8.
PERFORMANCE GRANTS.
8.1 Award. The Award of a Performance Grant to a Participant will entitle such
Participant to receive a specified amount (the “Performance Grant Actual Value”)
as determined by the Administrator; provided that the terms and conditions
specified in the Plan and in the Award of such Performance Grant are satisfied.
Each Award of a Performance Grant shall be subject to the terms and conditions
set forth in this Article 8 and such other terms and conditions, including, but
not limited to, restrictions upon any cash, Shares, other securities or property
of the Company, or other forms of payment, or any combination thereof, issued in
respect of the Performance Grant, as the Administrator shall establish, shall be
embodied in an Award Agreement in such form and substance as is approved by the
Administrator.
8.2 Terms. The Administrator shall determine the value or range of values of a
Performance Grant to be awarded to each Participant selected for an Award of a
Performance Grant and whether or not such Performance Grant is granted in
conjunction with an Award of Options, Stock Appreciation Rights, Restricted
Stock or other type of Award, or any combination thereof, under the Plan (which
may include, but need not be limited to, deferred Awards) concurrently or
subsequently granted to such Participant (the “Associated Award”). As determined
by the Administrator, the maximum value of each Performance Grant (the “Maximum
Value”) shall be:
(a) an amount fixed by the Administrator at the time the Award is made or
amended thereafter;
(b) an amount which varies from time to time based in whole or in part on the
then current Fair Market Value of a Share, other securities or property of the
Company, or other securities or property, or any combination thereof; or
(c) an amount that is determinable from criteria specified by the Administrator.
Performance Grants may be issued in different classes or series having different
names, terms and conditions. In the case of a Performance Grant awarded in
conjunction with an Associated Award, the Performance Grant may be reduced on an
appropriate basis to the extent that the Associated Award has been exercised,
paid to or otherwise received by the participant, as determined by the
Administrator.
8.3 Award Period. The award period (“Performance Grant Award Period”) in respect
of any Performance Grant shall be a period determined by the Administrator. At
the time each Performance Grant is made, the Administrator shall establish
Performance Goals to be attained within the Performance Grant Award Period as
the means of determining the Performance Grant Actual Value of such Performance
Grant. Each Performance Grant Actual Value of a Performance Grant shall be equal
to the Performance Grant Maximum Value of such Performance grant only if the
Performance Goals are attained in full, but the Administrator shall specify the
manner in which the Performance Grant Actual Value shall be determined if the
Performance Goals are met in part. The Performance Grant Actual Value or the
Performance Grant Maximum Value, or any combination thereof, may be adjusted in
any manner by the Administrator at any time and from time to time during or as
soon as practicable after the Performance Grant Award Period, if it determines
that such performance measures, the Performance Grant Actual Value or the
Performance Grant Maximum Value, or any combination thereof, are not appropriate
under the circumstances; provided that (i) to the extent required for compliance
with the exclusion from the limitation on deductibility of compensation under
Section 162(m) of the Code, no adjustment shall be made that would result in an
increase in the compensation of any Participant whose compensation is subject to
the limitation on deductibility under Section 162(m) of the Code for the
applicable year; and (ii) any adjustment either shall not cause Section 409A of
the Code to apply to an Award for which such section is not intended to apply or
shall not cause an Award which is subject to Section 409A to fail to comply with
8.4 Termination. The rights of a Participant in Performance Grants awarded to
such Participant shall be provisional and may be canceled or paid in whole or in
part, all as determined by the Administrator, if such Participant’s continuous
employment or performance of services for the Company, any Parent, Subsidiary
and Affiliate of the Company shall terminate for any reason prior to the end of
the Performance Grant Award Period, except solely by reason of a period of
Related Employment.
8.5 Determination of Performance Grant Actual Values. The Committee shall
determine whether the conditions of Sections 8.2 or 8.3 have been met and, if
so, shall ascertain the Performance Grant Actual Value of Performance Grants.
The Administrator must certify in writing prior to payment of any Performance
Grants that the Performance Goals and any other material terms were in fact
satisfied. If a Performance Grant has no Performance Grant Actual Value, the
Award of such Performance Grant shall be deemed to have been canceled and the
Associated Award, if any, may be canceled or permitted to continue in effect in
accordance with such Associated Award’s terms. If a Performance Grant has a
Performance Grant Actual Value and:
(a) was not awarded in conjunction with an Associated Award, the Administrator
shall cause an amount equal to the Performance Grant Actual Value of such
Performance Grant to be paid to the Participant or the Participant’s beneficiary
as provided below; or
(b) was awarded in conjunction with an Associated Award, the Administrator shall
determine, in accordance with criteria specified by the Administrator, whether
to (i) to cancel such Performance Grant, in which event no amount in respect
thereof shall be paid to the Participant or the Participant’s beneficiary, and
the Associated Award may be permitted to continue in effect in accordance with
the Associated Award’s terms, (ii) pay the Performance Grant Actual Value to the
Participant or the Participant’s beneficiary as provided below, in which event
such Associated Award may be canceled, or (iii) pay to the Participant or the
Participant’s beneficiary as provided below, the Performance Grant Actual Value
of only a portion of such Performance Grant, in which case a complementary
portion of the Associated Award may be permitted to continue in effect in
accordance with its terms or be canceled, as determined by the Administrator.
Such determination by the Administrator shall be made as promptly as practicable
following the end of the Performance Grant Award Period or upon the earlier
termination of employment or performance of services, or at such other time or
times as the Administrator shall determine, and shall be made pursuant to
criteria specified by the Administrator.
8.6 Payment. Unless otherwise provided in an Award Agreement, payment of any
amount in respect of the Performance Grants which the Administrator determines
to pay as provided in this Article 8 shall be made by the Company as promptly as
practicable after the end of the Performance Grant Award Period, but in no event
later than March 15th of the year following the year in which the Performance
Grant Award Period ends.
ARTICLE 9.
STOCK BONUSES.
9.1 Awards of Stock Bonuses. A Stock Bonus is an Award of Shares (which may
consist of Restricted Stock) for services rendered to the Company or any Parent,
Subsidiary or Affiliate of the Company. A Stock Bonus may be awarded for
services previously rendered to the Company, or any Parent, Subsidiary or
Affiliate of the Company, pursuant to an Award Agreement that will be in such
form (which need not be the same for each Participant) as the Administrator will
conditions of the Plan. A Stock Bonus may be awarded upon satisfaction of such
Performance Goals as are set out in advance in the Participant’s individual
Award Agreement that will be in such form (which need not be the same for each
comply with and be subject to the terms and conditions of the Plan. Stock
Bonuses may vary from Participant to Participant and between groups of
Participants, and may be based upon the achievement of the Company, any Parent,
Subsidiary or Affiliate of the Company and/or individual Performance Goals or
upon such other criteria as the Administrator may determine.
9.2 Terms of Stock Bonuses. The Administrator will determine the number of
the satisfaction of Performance Goals set forth in an Award Agreement, then the
Administrator will:
each Stock Bonus;
and
Prior to the payment of any Stock Bonus, the Administrator shall determine the
extent to which such Stock Bonuses have been earned and certify in writing that
any Performance Goals and any other material terms were in fact satisfied.
Restriction Periods may overlap and Participants may participate simultaneously
with respect to Stock Bonuses that are subject to different Restriction Periods
and different Performance Goals and other criteria. The number of Shares may be
fixed or may vary in accordance with such Performance Goals and criteria as may
9.3 Form of Payment. At the time of the award of a Stock Bonus, the
Administrator shall determine the time of payment (paid currently or on a
Administrator may determine) and the method of payment (payment may be made in
the form of cash or whole Shares or a combination thereof, either in a lump sum
payment or in installments, all as the Administrator will determine).
ARTICLE 10.
10.1 Payment. Payment for Shares purchased pursuant to this Plan may be made in
Administrator and where permitted by Applicable Law (including, without
limitation, Section 402 of the Sarbanes-Oxley Act of 2002):
(b) by surrender of shares of Common Stock that either (i) have been owned by
the Participant for more than six months (if required to avoid adverse
accounting consequences) and have been paid for within the meaning of Rule 144
promulgated under the Securities Act (and, if such shares were purchased from
respect to such shares) or (ii) were obtained by Participant in the public
market;
(c) if allowable under Applicable Law, by tender of a full recourse promissory
note having such terms as may be approved by the Administrator and bearing
and 1274 of the Code; provided, however, that Participants who are not employees
or directors of the Company will not be entitled to purchase Shares with a
promissory note unless the note is secured by collateral other than the Shares
satisfactory to the Administrator;
rendered;
a public market for the Company’s stock exists, (i) through a “same day sale”
commitment from the Participant and a broker-dealer that is a member of the NASD
such broker-dealer irrevocably commits upon receipt of such Shares to forward
the Exercise Price directly to the Company, or (ii) through a “margin”
commitment from the Participant and such broker-dealer whereby the Participant
to such broker-dealer in a margin account as security for a loan from such
broker-dealer in the amount of the Exercise Price, and whereby such
(f) such other consideration and method of payment for the issuance of Shares to
the extent permitted by the Administrator and Applicable Law; or
10.2 Loan Guarantees. To the extent permitted by Applicable Law, including,
without limitation, Section 402 of the Sarbanes-Oxley Act of 2002, the Company,
in its sole discretion, may assist a Participant in paying for Shares purchased
under the Plan by authorizing a guarantee by the Company of a third-party loan
to the Participant.
ARTICLE 11.
AMENDMENT OR SUBSTITUTION OF AWARDS UNDER THE PLAN.
11.1 Amendment or Substitution of Awards Under the Plan. The terms of any
Administrator in any manner that the Administrator deems appropriate; provided,
right of a Participant under such Award without the Participant’s written
consent. The Administrator may permit or require holders of Awards to surrender
outstanding Awards as a condition precedent to the grant of new Awards under the
Plan.
ARTICLE 12.
DESIGNATION OF BENEFICIARY BY PARTICIPANT.
12.1 Designation of Beneficiary by Participant. A Participant may designate one
or more beneficiaries to receive any rights and payments to which such
Participant may be entitled in respect of any Award in the event of such
Participant’s death. Such designation shall be on a written form acceptable to
and filed with the Administrator. The Administrator shall have the right to
review and approve beneficiary designations. A Participant may change the
Participant’s beneficiary(ies) from time to time in the same manner as the
original designation, unless such Participant has made an irrevocable
designation. Any designation of beneficiary under the Plan (to the extent it is
valid and enforceable under Applicable Law) shall be controlling over any other
disposition, testamentary or otherwise, as determined by the Administrator. If
no designated beneficiary survives the Participant and is living on the date on
which any right or amount becomes payable to such Participant’s
beneficiary(ies), such payment will be made to the legal representatives of the
Participant’s estate, and the term “beneficiary” as used in the Plan shall be
deemed to include such person or persons. If there is any question as to the
legal right of any beneficiary to receive a distribution under the Plan, the
Administrator may determine that the amount in question be paid to the legal
representatives of the estate of the Participant, in which event the Company,
the Administrator, the Board and the Committee and the members thereof will have
no further liability to any person or entity with respect to such amount.
ARTICLE 13.
CHANGE IN CONTROL, DISSOLUTION OR LIQUIDATION.
13.1 Change in Control. In the event there is a Change in Control of the
conditions as it deems appropriate, including providing for the cancellation of
Awards for a cash or other payment to the Participant.
For purposes of this Section 13.1, an Award shall be considered assumed, without
provided for in Section 4.4); provided that if such consideration received in
issued to the Participant and unless otherwise determined by the Administrator,
an Award will terminate immediately prior to the consummation of such proposed
transaction.
ARTICLE 14.
PLAN AMENDMENT OR SUSPENSION.
14.1 Plan Amendment or Suspension. The Plan may be amended or suspended in whole
or in part at any time and from time to time by the Board, but any amendment
and to the extent required by Applicable Law. To the extent required to comply
time by the stockholders. No amendment of the Plan shall adversely affect in a
material manner any right of any Participant with respect to any Award
theretofore granted without such Participant’s written consent; provided further
ARTICLE 15.
PLAN TERM AND TERMINATION.
15.1 Plan Term and Termination. The Plan shall become effective on the date
approved by the Board (the “Effective Date”). It shall continue in effect for a
amendment to add shares to the Plan is approved by stockholders of the Company,
unless terminated earlier upon the adoption of a resolution of the Board
terminating the Plan.
15.2 Effect of Termination on Outstanding Awards. No termination of the Plan
shall materially alter or impair any of the rights or obligations of any person,
without such person’s consent, under any Award theretofore granted under the
Plan, except that subsequent to termination of the Plan, the Administrator may
make amendments permitted under Article 11. Termination of the Plan shall not
affect the Administrator's ability to exercise the powers granted to it
such termination.
ARTICLE 16.
TRANSFERABILITY.
16.1 Transferability. Except as may be approved by the Administrator where such
approval shall not adversely affect compliance of the Plan with Sections 162 and
422 of the Code and/or Rule 16b-3, a Participant’s rights and interest under the
of a Participant’s death) including, but not by way of limitation, execution,
provided, however, except as may be approved by the Administrator, that any
Option or similar right (including, but not limited to, a Stock Appreciation
Right) offered pursuant to the Plan shall not be transferable other than by will
or the laws of descent or pursuant to a domestic relations order and shall be
exercisable during the Participant’s lifetime only by such Participant or such
person receiving such Option or similar right pursuant to a domestic relations
order.
ARTICLE 17.
PRIVILEGES OF STOCK OWNERSHIP; RESTRICTIONS ON SHARES.
17.1 Voting and Dividends. No Participant will have any of the rights of a
stockholder with respect to any Shares subject to or issued pursuant to the Plan
until such Shares are issued to the Participant. After Shares are issued to the
provided, however, that if such Shares are Restricted Stock, then any new,
subject to the same restrictions as the Restricted Stock; provided, however,
or stock distributions with respect to Restricted Stock that is repurchased at
the Participant’s Exercise Price in accordance with an Award Agreement with
respect to such Restricted Stock. In addition, all cash dividends paid with
respect to Awards of Restricted Stock shall be credited to Participants subject
Stock with respect to which they were paid. Subject to the restrictions on
vesting and the forfeiture provisions, all cash dividends credited to a
Participant shall be paid to the Participant as soon as administratively
feasible following the full vesting of the Restricted Stock with respect to
which such dividends were paid, but in no event later than the March 15th of the
year following the year in which full vesting of such Restricted Stock occurs.
17.2 Financial Statements. The Company will provide or make available financial
under the Plan, and to each Participant annually during the period such
Participant has Awards outstanding; provided, however, that the Company will not
be required to provide or make available such financial statements to
Participants whose services in connection with the Company assure them access to
equivalent information.
17.3 Restrictions on Shares. At the discretion of the Administrator, the Company
repurchase a portion of or all Shares issued pursuant to such Award Agreement
and held by a Participant following such Participant’s Termination at any time
within 90 days after the later of Participant’s Termination Date or the date
Participant purchases Shares under the Plan, for cash and/or cancellation of
purchase money indebtedness, at the then Fair Market Value of such Shares.
ARTICLE 18.
CERTIFICATES.
18.1 Certificates. All Shares or other securities delivered under this Plan will
Administrator may deem necessary or advisable, including restrictions under any
Applicable Law, or any rules, regulations and other requirements promulgated
under such laws or any stock exchange or automated quotation system upon which
the Shares may be listed or quoted and each stock certificate evidencing such
Shares and other certificates shall be appropriately legended.
ARTICLE 19.
DEPOSIT OF SHARES; ESCROW.
19.1 Deposit of Shares; Escrow. To enforce any restrictions on a Participant’s
Shares, the Committee may require the Participant to deposit all stock
certificates evidencing Shares, together with stock powers or other instruments
of transfer approved by the Administrator, appropriately endorsed in blank, with
restrictions have lapsed or terminated, and the Administrator may cause a legend
collateral to secure the payment of Participant’s obligation to the Company
under the promissory note; provided, however, that the Administrator may require
agreement in such form as the Administrator may from time to time approve. The
ARTICLE 20.
LEGAL AND OTHER REGULATORY COMPLIANCE.
20.1 Compliance with Applicable Laws. Shares shall not be issued pursuant to the
delivery of such Shares shall comply with Applicable Laws, and shall be further
compliance. Notwithstanding any other provision in this Plan, the Company will
have no obligation, or liability for failure, to issue or deliver stock
certificates for Shares under this Plan prior to:
(a) obtaining any approvals from governmental agencies that the Administrator
determines are necessary or advisable; and/or
Administrator determines to be necessary or advisable.
20.2 Compliance with Rule 16b-3. It is the intent of the Company that the Plan
comply in all respects with Rule 16b-3 under the Exchange Act, that any
ambiguities or inconsistencies in construction of the Plan be interpreted to
give effect to such intention and that if any provision of the Plan is found not
to be in compliance with Rule 16b-3, such provision shall be deemed null and
void to the extent required to permit the Plan to comply with Rule 16b-3. No
Obligation to Register Shares or Awards. The Company will be under no obligation
to register the Shares under the Securities Act or to effect compliance with the
laws, stock exchange or automated quotation system, and the Company will have no
liability for any inability or failure to do so.
20.4 Compliance with Section 409A. Notwithstanding anything to the contrary
20.5 Deferral of Award Benefits. The Administrator may in its discretion and
including through the Administrator's establishing a written program (the
in such Program. Any such Award Agreement or Program shall specify the treatment
governed thereby, and shall further provide that any elections governing payment
20.6 Tax Consequences. The Company and any Affiliate which is in existence or
hereafter comes into existence shall not be liable to an Eligible Recipient,
Participant, employee or any other persons as to any tax consequence realized by
such person due to the receipt, vesting, exercise or settlement of any Option or
hereunder. The Participant is responsible for, and by accepting an Award under
connection with such tax liability legally imposed on the Participant. In
particular, Awards issued under the Plan may be characterized by the U.S.
In the event the IRS determines that an Award constitutes deferred compensation
ARTICLE 21.
NO RIGHT TO EMPLOYMENT OR CONTINUATION OF RELATIONSHIP.
21.1 No Right to Employment or Continuation of Relationship. Nothing in this
Plan or any Award granted under the Plan will confer or be deemed to confer on
relationship with, the Company or any Parent, Subsidiary or Affiliate of the
Company or limit in any way the right of the Company or any Parent, Subsidiary
ARTICLE 22.
NON-EXCLUSIVITY OF THE PLAN.
power of the Board or the Committee to adopt such additional compensation
arrangements as the Board may deem desirable, including, without limitation, the
cases.
ARTICLE 23.
MISCELLANEOUS PROVISIONS.
23.1 No Rights Unless Specifically Granted. No Eligible Recipient, employee or
under any contract, agreement or otherwise. Determinations made by the
Administrator under the Plan need not be uniform and may be made selectively
among Eligible Recipients under the Plan, whether or not such Eligible
Recipients are similarly situated.
23.2 No Rights Until Written Evidence Delivered. No Participant or other person
shall have any right with respect to the Plan, the Shares reserved for issuance
under the Plan or in any Award, contingent or otherwise, until written evidence
of the Award, in the form of an Award Agreement, shall have been delivered to
the recipient and all the terms, conditions and provisions of the Plan and the
Award applicable to such recipient (and each person claiming under or through
such recipient) have been met.
23.3 Right to Withhold Payments. The Company and any Parent, Subsidiary and
Affiliate of the Company shall have the right to deduct from any payment made
under the Plan, any federal, state, local or foreign income or other taxes
condition to the obligation of the Company to issue Shares, other securities or
property of the Company, other securities or property, or other forms of
payment, or any combination thereof, upon exercise, settlement or payment of any
Award under the Plan, that the Participant (or any beneficiary or person
entitled to act) pay to the Company, upon its demand, such amount as may be
is not paid, the Company may refuse to issue Shares, other securities or
payment, or any combination thereof. Notwithstanding anything in the Plan to the
contrary, the Administrator may permit a Participant (or any beneficiary or
such manner as the Administrator shall deem to be appropriate, including, but
not limited to, by authorizing the Company to withhold, or agreeing to surrender
to the Company on or about the date such tax liability is determinable, Shares,
other securities or property of the Company, other securities or property, or
23.4 Expenses of Administration. The expenses of the Plan shall be borne by the
Company. However, if an Award is made to an individual employed by or performing
services for a Parent, Subsidiary or Affiliate of the Company:
(a) if such Award results in payment of cash to the Participant, such Parent,
Subsidiary or Affiliate shall pay to the Company an amount equal to such cash
payment unless the Administrator shall otherwise determine;
(b) if the Award results in the issuance by the Company to the Participant of
Shares, other securities or property of the Company, other securities or
property, or other forms of payment, or any combination thereof, such Parent,
Subsidiary or Affiliate of the Company shall, unless the Administrator shall
otherwise determine, pay to the Company an amount equal to the fair market value
thereof, as determined by the Administrator, on the date such Shares, other
securities or property of the Company, other securities or property, or other
forms of payment, or any combination thereof, are issued (or, in the case of the
issuance of Restricted Stock or of Shares, other securities or property of the
Company, or other securities or property, or other forms of payment subject to
transfer and forfeiture conditions, equal to the fair market value thereof on
the date on which they are no longer subject to such applicable restrictions),
minus the amount, if any, received by the Company in respect of the purchase of
such Shares, other securities or property of the Company, other securities or
property or other forms of payment, or any combination thereof, all as the
Administrator shall determine; and
(c) the foregoing obligations of any such Parent, Subsidiary or Affiliate of the
Company shall survive and remain in effect and binding on such entity even if
its status as a Parent, Subsidiary or Affiliate of the Company should
subsequently cease, except as otherwise agreed by the Company and such Parent,
Subsidiary or Affiliate.
23.5 Unfunded Plan. The Plan shall be unfunded. The Company shall not be
segregation of assets to assure the payment of any Award under the Plan, and
rights to the payment of Awards shall be no greater than the rights of the
Company’s general creditors.
23.6 Acceptance of Award Deemed Consent. By accepting any Award or other benefit
Participant shall be conclusively deemed to have indicated such Participant’s
(or other person’s) acceptance and ratification of, and consent to, any action
taken by the Company, Administrator, Board or Committee or their respective
delegates under the Plan.
23.7 Use of Terms. For the purposes of the Plan, in the use of any term, the
singular includes the plural and the plural includes the singular wherever
appropriate.
23.8 Filing of Reports. The appropriate officers of the Company shall cause to
be filed any reports, returns or other information regarding Awards hereunder or
any Shares issued pursuant hereto as may be required by Section 13 or 15(d) of
the Exchange Act (or any successor provision) or any other applicable statute,
rule or regulation.
23.9 Validity; Construction; Interpretation. The validity, construction,
interpretation, administration and effect of the Plan, and of its rules and
regulations, and rights relating to the Plan and Award Agreements and to Awards
choice of law rules, of the State of Nevada.
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ASSIGNMENT AND ASSUMPTION AGREEMENT THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this “ Assignment ”) is made and entered into as of November 2, 2015 by and among Franklin Value Investors Trust, a Massachusetts business trust ( “ Assignor ”), Franklin Value Investors Trust, a Delaware statutory trust (the “ Assignee ”), and Franklin Templeton Investor Services, LLC ( “ Transfer Agent ”). W I T N E S S E T H: WHEREAS, pursuant to a certain Agreement and Plan of Reorganization dated as of November 2, 2015 between Assignor and Assignee, Assignor has sold and conveyed to Assignee certain assets of Assignor; and WHEREAS, in connection with such conveyance of assets, Assignor and Assignee have agreed that Assignor shall transfer and assign to Assignee all rights, title and interests of Assignor in and to certain contracts to which Assignor is a party; and WHEREAS, Assignor and Assignee have further agreed that Assignee shall expressly assume all of the obligations of Assignor arising under such contracts from and after the date of this Assignment; and WHEREAS, the Assignor and the Transfer Agent are parties to a certain Amended and Restated Transfer Agency and Shareholder Services Agreement dated June 1, 2014 (the “ Transfer Agency Agreement ”); and WHEREAS, the parties hereto desire that the Transfer Agency Agreement be transferred from Assignor to Assignee, as more specifically set forth below. NOW, THEREFORE, for and in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each party hereto, the parties hereto, intending to be legally bound, hereby agree as follows: 1. Transfer and Assignment . Assignor hereby sells, transfers and assigns to Assignee, its successors and assigns, all rights, title and interests of Assignor in, to and under the Transfer Agency Agreement. 2. Assumption of Obligations . Assignee hereby assumes and agrees to observe and perform all of the obligations and duties of Assignor under the Transfer Agency Agreement from and after the date of this Assignment. 3. Consent to Assignment . The Transfer Agent hereby acknowledges, consents and agrees to the foregoing assignment and assumption of the Transfer Agency Agreement. 4. Governing Law . This Assignment shall be governed by and construed in accordance with the laws of the State of California without reference to the conflicts of laws provisions thereof. 5. Binding Effect . This Assignment shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. [THIS SPACE INTENTIONALLY LEFT BLANK] 2 6. Counterparts . This Assignment may be executed in any number of counterparts, each of which so executed shall be deemed an original, and all of which, when taken together, shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have caused this Assignment to be executed as of the day and year first above written. FRANKLIN VALUE INVESTORS TRUST, a Massachusetts business trust By: /s/ Steven J. Gray Name: Steven J. Gray Title: Vice President and Secretary FRANKLIN VALUE INVESTORS TRUST, a Delaware statutory trust By: /s/ Steven J. Gray Name: Steven J. Gray Title: Vice President and Secretary FRANKLIN TEMPLETON INVESTOR SERVICES, LLC By: /s/ Basil K. Fox, Jr. Name: Basil K. Fox, Jr. Title: President 2
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EXHIBIT 10.1
FIRST AMENDMENT TO THE
2016 STOCK INCENTIVE PLAN
Section 15 of the CoStar Group, Inc. 2016 Stock Incentive Plan is amended in its
entirety to read as follows, effective upon the date this First Amendment is
adopted:
exercise, disposition of Common Shares issued under an Incentive Stock Option,
Subsidiaries shall not be required to issue Common Shares, make any payment or
to recognize the transfer or disposition of Common Shares until such obligations
are satisfied. The Committee may provide for or permit for tax withholdings
determined using up to the maximum individual tax rate in the applicable
jurisdictions to be satisfied through the mandatory or elective sale of Common
Shares and/or by having the Company withhold a portion of the Common Shares that
vesting or settlement of an Award, or by tendering Common Shares previously
acquired.
February 15, 2018
1 |
Pruco Life Insurance Company
555 12th Street
Oakland, California 94607
Re:
Limited Consent -- Amended and Restated Note Agreement
Ladies and Gentlemen:
1A. Reference is made to the Amended and Restated Note Agreement, dated as of
May 19, 2005 (as amended, restated, supplemented or otherwise modified from time
to time, the “Agreement”), by and between Matson Navigation Company, Inc., a
Hawaii corporation (the “Company”), on the one hand, and the undersigned (the
“Noteholders”), on the other hand. Capitalized terms used and not otherwise
defined herein shall have the meanings provided in the Agreement. Reference is
also made to that certain Second Amended and Restated Note Agreement, dated as
of the date hereof (the “New Note Agreement”), initially entered into between
the Company, on the one hand, and the Purchasers named therein, on the other
hand.
1B. Reorganization. The Company has advised the Noteholders of a reorganization
pursuant to which:
provided in clause (iv) of this Section 1B (“A&B Holdings”), as a new,
wholly-owned direct Subsidiary of A&B, and A&B Holdings has incorporated A&B
Merger Corporation, a Hawaii corporation (“A&B Merger Corp.”), as a new,
wholly-owned direct Subsidiary of A&B Holdings, and, on or about June 6, 2012
A&B Merger Corp. will merge with and into A&B with A&B being the survivor of
such merger (the “Merger”), after giving effect to which A&B Holdings will hold
all of the capital stock of A&B and the stockholders of A&B Holdings will be the
Persons which were the stockholders of A&B immediately prior to giving effect to
the Merger;
the capital stock of the Company to A&B Holdings (the “Distribution”), after
giving effect to which the Company will be a sister of A&B and a direct,
wholly-owned Subsidiary of A&B Holdings;
and holder of all of the capital stock of both the Company and New A&B will be
A&B Holdings (the collective transactions described in the foregoing portions of
this Section 1B being referred to herein as the “Reorganization”); and
1C. Limited Consents. Pursuant to the provisions of paragraph 11C of the
Agreement, and subject to the representations and warranties in Section 4 of
this letter agreement and the conditions set forth in Section 5 of this letter
agreement, the Noteholders hereby consent to (i) any Change of Control which may
be deemed to occur solely as a result of the Merger, the Distribution or the
other steps of the Reorganization as described in Section 1B of this letter
agreement, (ii) the incurrence of the Liens which otherwise would be prohibited
under the Agreement by virtue of the Company’s entering into (a) the New Note
Agreement and making the agreements contained in paragraphs 5G and 6C(1)(vi) and
(vii) thereof and (b) the Bank Credit Agreement (as defined in the New Note
Agreement) and making the agreements contain in Sections 2.03(a)(ii), 2.05,
2.15, 6.03 and 8.02(c) thereof, (iii) the A&B Capital Contribution (as defined
in the New Note Agreement), the Reorganization and the Spin-Off, and (iv) the
transfers of assets and assumptions of liabilities contemplated by Section 2.1
of the Separation Agreement (as defined in the New Note Agreement) and the
termination of intercompany agreements contemplated by Section 2.2 of the
Separation Agreement.
2. Additional Event of Default. It shall be an Event of Default under
the Agreement if the Company elects the One-Time Fee pursuant to paragraph 2A of
the New Note Agreement and if the Company does not pay the One-Time Fee (as
defined in the New Note Agreement) on the day of the consummation of the
Spin-Off.
3. Limitation of Modifications. The modifications effected in this
(including any governmental authority) in order to be effective and enforceable;
and (iii) the Agreement, as modified by this letter agreement, constitutes the
principles of equity.
5. Effectiveness. This letter agreement shall become effective on the
date on which the Noteholders shall have received a fully executed counterpart
of this letter agreement from the Company (and the Company shall have received a
fully executed counterpart of this letter agreement from the Noteholders).
6. Miscellaneous.
letter agreement in the space indicated below and transmit it to the Noteholders
agreement between the Company, on the one hand, and the Noteholders, on the
other hand.
Sincerely,
The Prudential Insurance Company
of America
By: /s/ Cornelia Cheng____________
Title: Vice President
Pruco Life Insurance Company
Title: Vice President
Accepted and agreed to
appearing above:
By: /s/ Matthew J. Cox
Its: President
By: /s/ Joel M. Wine
|
LAND BANK
We stand by you
SECURITY CESSION OF INSURANCES
entered into between
governed by the Land and Agricultural Development Bank Act 15 of 2002
and
THE CEDENT
(as defined in the Schedule)
2
1.
DEFINITIONS AND INTERPRETATION
intention clearly appears:
1.1.
words importing any one gender include the other two genders;
1.2.
the singular include the plural and vice versa;
1.3.
state and vice versa; and
1.4.
1.4.1.
“Agreement” means this agreement, including the Schedule and any other schedules
and annexures to it, as amended, novated and/or replaced from time to time;
1.4.2.
"Applicable Law" means, in relation to any relevant jurisdiction, any law,
regulation, regulatory requirement, judgment, order or direction or any other
act of any government entity of such jurisdiction and includes any law insofar
as it relates to the interpretation of any law;
1.4.3.
"Business Day" means any day other than a Saturday, Sunday or official public
holiday in South Africa on which banks are open for business;
1.4.4.
“Cedent” has the meaning ascribed thereto in the Schedule;
1.4.5.
“Insurances” means all policies and contracts of insurance (including business
continuity insurance) which have been or are to be taken out or entered into by
the Cedent, including the policies and contracts of insurance and all credit
insurance and including any policy or policies issued in substitution or renewal
as well as any further rights which may arise from any increase in the amount of
insurance or otherwise;
1.4.6.
“InsuranceProceeds”means the proceeds of any claim under any of the Insurances;
1.4.7.
“Land Bank” means the Land and Agricultural Development Bank of South
Africagoverned by the Land Bank Act, and their successors in title ororder or
assigns;
3
1.4.8.
“Land Bank Act” means the Land and Agricultural Development Bank Act 15 of 2002;
1.4.9.
“Obligations” means all the obligations of the Cedentto Land Bank whether now
owing or which may become owing in the future, arising under or in connection
with any agreement(s) concluded between Land Bank and the Cedent and listed in
the Schedule;
1.4.10.
“Parties” means the Cedentand Land Bank,and “Party” means, as the context
requires, either of them;
1.4.11.
“RightsandInterests” means all of the Cedent’srights to and interests inand to
the Insurances and all the Insurance Proceeds from time to time;
1.4.12.
“Schedule” means the schedule attached hereto as Schedule 1, which has been
completed and signed by the parties hereto contemporaneously with this Agreement
and which forms part of this Agreement;
1.4.13.
“Signature Date” means the date of signature of this Agreement by the Party last
signing it in time, provided that both Parties have signed;
1.5.
as amended or re-enacted from time to time;
1.6.
imposing obligations on either Party, notwithstanding that it is only in the
1.7.
when any number of days is prescribed in this Agreement, those days shall be
reckoned inclusively of the first and exclusively of the last day unless the
last day of the number so calculated falls on a day which is not a Business Day,
in which case the number of days shall be reckoned to the next succeeding
Business Day;
1.8.
1.9.
clause;
4
1.10.
where any matter requires the approval or consent of any Party such approval or
consent shall be deemed not to have been given unless given in writing. Where
any matter is required to be acceptable to any Party, that Party shall be deemed
not to have accepted such matter unless its acceptance is communicated in
writing, save as expressly provided for in this Agreement;
1.11.
definitions;
1.12.
the rule of construction that a contract shall be interpreted against the Party
1.13.
any reference in this Agreement to a Party includes, as the case may be, and
shall be binding upon that Party’s liquidator, judicial manager, trustee,
executor, administrator, curator, business rescue practitioner (to the extent
permitted by Applicable Law) (in each case whether provisional or final),
successors or permitted assigns and any representative of that person;
1.14.
any reference to any Party to this Agreement or any other document or any person
shall include reference to such party’s or person’s successors and permitted
assigns or transferees;
1.15.
references to “including” and “in particular” shall not be construed
restrictively but shall mean "including, without limitation to the generality of
the foregoing" and "in particular, but without limitation to the generality of
the foregoing" respectively; and
1.16.
any reference herein to an agreement shall be to such agreement as amended,
supplemented, varied, novated or restated from time to time.
2.
INTRODUCTION
As security for the Obligations, the Cedenthas agreed to cede in security to
Land Bank all the Rights and Interests.
3.
SECURITYCESSION
3.1.
The Cedentcedes in securitatemdebitito Land Bank, with effect from the
SignatureDate, all of the Cedent’spresent and future Rights and Interests as
security for the due, proper and timeous payment and performance in full of all
the Obligations on the terms and conditions set out in this Agreement, which
cession in securitatemdebitiLand Bank hereby accepts.
3.2.
It is the intention of the Parties that the security cession in terms of clause
3.1shall operate as a pledge (and not an out and out cession and transfer) of
the rights in question and,
5
accordingly the Cedentshall be and remain the owner of such rights until Land
Bank exercises its rights in terms of clause 6of this Agreement.
3.3.
The Cedent shall obtain all third party consents (if any) required to fulfil its
obligations detailed in clause 3.1.
4.
WARRANTIES
4.1.
The Cedentrepresents and warrants that, as at the Signature Date, the Rights and
Interests ceded to Land Bankunder this Agreement have not been ceded (either
outright or as security), discounted, factored, or otherwise disposed of or
hypothecated or encumbered in any manner, nor are they subject to any other
right in favour of any person, including any right of retention, option or
pre-emptive right.
4.2.
Should any of the Rights and Interests be subject to any such right in breach of
the representation and warranty in clause 4.1, then, without prejudice to any
other rights that Land Bank may have, any reversionary or other interests the
Cedentmay have in the Rights and Interests are also ceded in security to Land
Bank, and if the holder of that cession or right is entitled to possession of
any of the documents referred to in clause 7.1, and it exercises that right,
then the Cedentshall deliver certified copies of such documents to Land Bank,
and as soon as the holder of that, cession or right ceases to be entitled to
possession or gives up possession, the Cedentshall deliver such documents to
Land Bank.
4.3.
The Cedent represents and warrants, on each day that this Agreement is in force
from and including the Signature Date, that:
4.3.1.
subject to Applicable Law, the Rights and Interests are and will be fully
enforceable in all respects;
4.3.2.
it is and will remain the sole and beneficial owner of all the Rights and
Interests;
4.3.3.
it has the necessary legal capacity to enter into and perform its obligations
under this Agreement and has taken all necessary internal action to authorise
the execution and performance of this Agreement and this Agreement constitutes
legal, valid, binding and enforceable obligations of the Cedent;
4.3.4.
the cession in terms of this Agreement will not be void or capable of being set
aside in terms of the Insolvency Act 1936;
4.3.5.
except for the cession in terms of this Agreement no person has, or will have,
any rights of any nature whatsoever in respect of the Rights and Interests;
6
4.3.6.
it is not aware of any material facts or circumstances relating to the Rights
and Interests which have not been fully and fairly disclosed in writing to Land
Bank;
4.3.7.
it shall promptly inform Land Bank, forthwith upon becoming aware of any
occurrence or circumstance which could adversely affect the value of the Rights
and Interests; and
4.3.8.
this Agreement and the Cedent’sfulfilment of its obligations in accordance with
the terms of this Agreement do not contravene any law, regulation or any
contractual obligations binding on the Cedentand that all necessary consents of
governmental or quasi-governmental bodies or other authorisations, approvals,
licences, registrations and consents have been obtained.
4.4.
Each warranty, representation and undertaking detailed in this clause 4 is,
unless stated otherwise in respect of such warranty, representation or
undertaking, given as at the Signature Date and thereafter on and for each and
every succeeding day until the termination of this Agreement.
4.5.
The provisions of this clause 4 are severable from the remaining provisions of
this Agreement and shall accordingly remain of full force and effect
notwithstanding that this Agreement may otherwise be void, voidable or cancelled
for any reason.
4.6.
Each of the warranties, representations and undertakings shall be a separate
warranty, representation and undertaking and shall in no way be limited to or
restricted by reference to or by inference from the terms of any other warranty,
representation or undertaking, or by any words of this Agreement.
4.7.
The Cedentacknowledges that it is aware that Land Bank has entered into this
Agreement on the strength of the representations, warranties and undertakings
5.
USE AND ENJOYMENT
5.1.
This security cession operates in respect of all rights, powers and privileges
attaching to the Rights and Interests. In the event of any breach or failure
timeously to pay or to perform any of the Obligations, the Cedentshall, if Land
Bank so directs, exercise those rights, powers and privileges in its own name on
behalf of Land Bank in accordance with Land Bank’s directions or Land Bank may
exercise those rights, powers and privileges in its capacity as security
cessionary.
5.2.
The Cedent acknowledges that it may not cede, assign, transfer or in any other
manner encumber, discount, factor, prejudice, compromise, grant any indulgences
or agree to vary
7
the terms of any document in respect of the Rights and Interests, or deal with
the Rights and Interests, without the prior written consent of Land Bank.
5.3.
For the avoidance of doubt, for so long as there is no breach or failure
timeously to pay or to perform any of the Obligations, the Cedentshall (in each
case on behalf of Land Bank) be entitled to enforce and receive payment for,
delivery of, and/or performance in respect of the Rights and Interests in the
5.4.
For so long as there is no breach or failure timeously to pay or to perform any
of the Obligations, the Cedent shall be entitled to appropriate amounts
collected in respect of the Rights and Interests to its own use.
6.
REALISATION
6.1.
On the occurrence of a breach or failure timeously to pay or to perform any of
the Obligations, Land Bank shall be entitled to:
6.1.1.
enforce and receive payment for, delivery of and/or performance in respect of
the Rights and Interests; and
6.1.2.
demand that the Cedentaccount to Land Bank in respect of all amounts collected
in respect of the Rights and Interests,
and the Cedentirrevocably and unconditionally authorises and empowers Land Bank
or its nominee, in rem suam and without any further authority or consent
required from the Cedentand without having to obtain a court order, to:
6.1.3.
exercise and/or otherwise enforce its rights under this Agreement in and to the
Rights and Interests;
6.1.4.
sell or otherwise realise all or some of the Rights and Interests;
6.1.5.
acquire all or, at the election of Land Bank, some of the Rights and Interests
at fair market value (and, in the event of any dispute as to such value, it
shall be determined by an independent merchant banker agreed to by the parties
or, failing agreement, appointed by the President for the time being of the
South African Institute of Chartered Accountants (or the successor body
thereto), which independent merchant banker shall act as an expert and not as an
arbitrator and shall determine the liability for his charges which shall be paid
accordingly, provided that if any determination is manifestly unjust, and the
court exercises its general power, if any, to correct such determination, the
Parties shall be bound thereby);
8
6.1.6.
institute any legal proceedings which Land Bank may deem necessary in connection
with any of the Rights and Interests or with the sale, purchase or other
transfer of any of the Rights and Interests by Land Bankor its nominee; and
6.1.7.
compromise any Right and Interest, grant any extension or other indulgence in
respect of any such Right and Interest, or agree to vary the terms of any such
Right and Interest, or release any security or suretyship held for any such
Right and Interest.
6.2.
The Cedent acknowledges that:
6.2.1.
the Rights and Interests ceded by it in favour of Land Bank in terms of this
Agreement are Rights and Interests which underlie a transaction of a commercial
nature;
6.2.2.
the obligations and debts of the Cedentsecured by this Agreement are obligations
and debts of a commercial nature;
6.2.3.
the application of the provisions of this Agreement will confer upon Land Bank
certain procedural advantages, which in the light of the commercial nature of
the transactions secured by this Agreement are fair, reasonable and necessary to
ensure that Land Bankdoes not suffer unfair commercial prejudice by being
deprived of these procedural advantages;
6.2.4.
if any part of clause 6.1 is invalid or unenforceable, Land Bank shall retain
the right to enforce all the other terms of this Agreement and shall retain all
such rights as are enforceable and validly conferred upon it by this Agreement;
and
6.2.5.
theCedentknows and understands the meaning, import and consequences of clauses
6.1 and 6.2.
6.3.
On the occurrence of a breach of the Obligations, or if Land Bank otherwise
directs in writing, the Cedentshall on written demand by Land Bank:
6.3.1.
notify all persons required by Land Bank in writing, that payment, delivery or
performance of the relevant Rights and Interests must be made to Land Bank and
that payment, delivery or performance to the Cedentor to anyone else will not
constitute valid payment, delivery or performance, and Land Bank shall be
entitled to do likewise. The Cedentshall, on demand by Land Bank, provide proof
that such notification has been duly given;
9
6.3.2.
refuse to accept any payment, delivery or performance tendered in respect of any
of the Rights and Interests and order that such payment, delivery or performance
be tendered to Land Bank and, to the extent that any such payment is
nevertheless received by the Cedent, it shall receive such payment as agent for
Land Bankand shall immediately pay over such amount to Land Bank,without at any
time mixing that cash with any other cash; and
6.3.3.
at its own cost, carry out any directions Land Bank may give in regard to the
realisation of the Rights and Interests, and sign any document or do any other
act necessary to vest the Rights and Interests in Land Bank or a third party
purchaser or otherwise, as may be necessary to give effect to the provisions of
this Agreement.
6.4.
Land Bank shall apply the net proceeds of any realisation of the Rights and
Interests (after deducting all costs and expenses incurred by Land Bank or its
nominee (including collection commission)), in its reasonable discretion, in
connection with the exercise by Land Bank or its nominee of Land Bank’s rights)
in reduction or discharge, as the case may be, of the Cedent’sindebtedness to
Land Bank, without prejudice to Land Bank’s rights to recover from the Cedentany
balance which may remain owing to Land Bank after the exercise of such rights.
Should the total amount collected or recovered by Land Bank, after deducting all
costs and expenses incurred by Land Bank pursuant to such collection or
recovery, exceed the full amount of the Cedent’sindebtedness to Land Bank, Land
Bank shall refund such excess to the Cedent.
7.
DELIVERY OF DOCUMENTS
7.1.
When Rights and Interests are evidenced by a document, or when the Cedentholds
security for any obligation in respect of such Rights and Interests and the
security is evidenced by a document, the Cedentshall deliver a certified copy of
that document to Land Bank or such custodian as the Land Bank may nominate.
7.2.
The Cedentshall do everything that may be reasonably required by Land Bank for
the purposes of and to give effect to this Agreement, failing which Land Bank
may, if possible, attend thereto and recover on demand from the Cedentany
reasonable expenses incurred.
7.3.
All documents delivered to Land Bank (or its custodian) in terms of this clause
7 shall be delivered to ensure that Land Bank has full, complete and up-to-date
information relating to the Rights and Interests and evidence of the
Cedent’stitle to such Rights and Interests and, accordingly:
7.3.1.
delivery of any such documents shall not constitute a novation or alteration of
this Agreement;
10
7.3.2.
the breach by the Cedentof the obligation to deliver any document in terms of
this clause 7 shall not:
7.3.2.1.
affect the legality, validity or binding effect of the cession in security of
the Rights and Interests embodied in this Agreement; or
7.3.2.2.
affect, or in any manner, impinge on the rights of Land Bank in terms of this
Agreement; and
7.3.3.
the security cession of the Rights and Interests has been perfected and
completed purely by virtue of the entry into this Agreement, and the delivery of
the documents, or any of them, in terms of this clause 7, shall not be required
to effect such completion or perfection of the security cession of the Rights
and Interests.
7.4.
Insofar as Land Bank may require any evidence or assistance from the Cedent or
from its directors, members, servants or agents for the purposes of enforcing
its rights in terms of this Agreement by collecting any amount outstanding under
the Rights and Interests, the Cedent hereby undertakes that such evidence and
assistance will be duly furnished and provided to Land Bank as requested.
8.
NOTIFICATIONS
8.1.
Immediately after signature of this Agreement, the Cedent shall enter the
details of this security cession in its register of pledges, cessions, notarial
bonds, mortgage bonds and debentures and instruct its auditors to note the
existence of this cession in security in the Cedent's annual financial
statements, and hereby authorises Land Bank to do the same.
8.2.
The Cedent shall procure that:
8.2.1.
the interests of Land Bank in respect of the Insurances in terms of this
Agreement are recorded by the underwriters of the policies and contracts of
insurance comprising the Insurances;
8.2.2.
the Insurance contracts remain valid and in full force and effect and that the
interests of Land Bank in the Insurance contracts are not prejudiced;
8.2.3.
Land Bank is provided with an annual confirmation from the underwriters of the
policies and contracts of insurance comprising the Insurances that the policies
and contracts of insurance comprising the Insurances have been renewed; and
8.2.4.
certified copies of the policies and endorsements with respect to the Insurance
contracts be made available to Land Bank on reasonable notice.
11
8.3.
The Cedent hereby authorised Land Bank, to the extent that the Cedent has failed
to notify the underwriters as contemplated in clause 8.2.1 within 3 (three)
Business Days of the Signature Date, to notify the underwriters of this
Agreement and the security cession in terms hereof and to cause it to be
registered in their records.
9.
SECTION 43 OF THE SHORT TERM INSURANCE ACT NO. 53 OF 1998 (AS AMENDED) (“STIA”)
9.1.
the Cedent is hereby given notice of its entitlement to a free choice in
the STIA;
9.2.
the Cedent warrants that it has read and understood this section of the STIA;
9.3.
by its signature to this Agreement, the Cedent confirms in writing that :
9.3.1.
9.3.2.
9.3.3.
10.
PAYMENT OF PREMIUMS
10.1.
The Cedent shall continue to pay all premiums in respect of the Insurances as
and when they fall due and shall, on demand by Land Bank, forthwith produce
proof, to the reasonable satisfaction of Land Bank, that such premiums have been
duly paid.
10.2.
Should Land Bank at any time pay any premium which the Cedent has failed to pay
punctually, the Cedent shall, forthwith after receipt of demand from Land Bank,
refund to Land Bank an amount equal to the premium(s) so paid by Land Bank.
11.
DURATION
This Agreement is a continuing covering security and will terminate only upon
the unconditional and irrevocable fulfilment of all the Obligations and the
delivery by Land Bank of a written notice to the Cedent to this effect. In
particular, this Agreement shall not terminate by reason solely of the fact that
there may at any time be no or reduced Obligations owing by the Cedentto Land
Bank.
12
12.
RELEASE
Upon the unconditional and irrevocable fulfilment of all the Obligations, the
Cedentshall be entitled to request Land Bank to confirm in writing that the
obligations owing by the Cedentto Land Bank have been discharged. Any such
confirmation shall operate as a release of the Cedentunder this Agreement,
provided however that such confirmation of release shall not apply in respect of
any Obligation which is reinstated at any time following such confirmation of
release, or in respect of the Cedent’sliability for all obligations under this
Agreement existing at the date of release (including any variation or novation
of such obligations as a result of any subsequent agreement between the Parties,
or which may take effect by operation of law or otherwise).
13.
ADDITIONAL SECURITY
This Agreement is in addition to and not in substitution for any other security
held or hereafter to be held by Land Bankfrom the Cedentor any third party in
connection with the Obligations or otherwise and Land Bankshall, without
prejudice to its rights hereunder, be entitled in its sole discretion to release
any such additional security held by it.
14.
THE CEDENTBOUND NOTWITHSTANDING CERTAIN CIRCUMSTANCES
The Cedentagrees that on signature hereof, it will be bound in terms of this
Agreement to the full extent thereof, despite the fact that:
14.1.
any additional security from the Cedentfor the debts secured by this Agreement
may not be obtained or protected or may be released or may cease to be held for
any other reasonwhatsoever;
14.2.
any agreement is varied or novated in any way; and
14.3.
the Cedent is granted any indulgences by Land Bank or failure by Land Bank to
exercise any one or more of its rights hereunder or under, either timeously or
at all.
15.
FURTHER CESSIONS
With effect from the Signature Date, the Cedent shall not grant any security
cession of any of its Rights and Interests other than to Land Bank in accordance
16.
RIGHTS AND INTERESTS TO BE KEPT FREE OF ENCUMBRANCES
The Cedent shall at all times keep its Rights and Interests free of judicial
attachments, notarial bonds, liens, rights of retention and other encumbrances,
and shall not prejudice, compromise, grant any indulgences or agree to vary the
terms of any document, (excluding any indulgences or variations agreed to in the
ordinary course of business) in respect of the Rights and Interests or
13
release any security held in respect of any such Rights and Interests without
the prior written consent of Land Bank.
17.
LIMITATION OF LIABILITY
17.1.
Land Bank and its directors, officers, agents, employees and advisors shall not
be liable for any loss or damage, whether direct, indirect, consequential or
otherwise, suffered by the Cedent arising from any cause in connection with this
Agreement (including any loss, liability, damage or expense which the Cedentmay
suffer as a consequence, directly or indirectly, of Land Banklawfully exercising
any of its rights in terms of this Agreement, failing to preserve, protect, or
enforce the Rights and Interests or failing to accept or collect any right,
payment or other benefit relating to the Rights and Interests), whether the loss
or damage results from or arises in contract, delict or any other cause and
Land Bank’s gross negligence, wilful misconduct, dishonesty or breach of
contract.
17.2.
Land Bankshall have no responsibility to preserve, protect or enforce the Rights
and Interests or to accept or collect any right, payment or other benefit
relating to any of the Rights and Interests and is not obliged to furnish any
security to the Cedentin this regard.
17.3.
Without prejudice to Land Bank’s other rights in terms of this Agreement or at
law, if at any time Land Bank takes any steps which Land Bank in its reasonable
discretion deems necessary for the preservation, protection or enforcement of
the Rights and Interests or for the acceptance or collection of any right,
payment or other benefit relating to any of the Rights and Interests and incurs
any cost or expense in so doing, then the Cedentshall forthwith upon demand
reimburse Land Bank with the reasonable amount of such cost or expense.
18.
KEEPING, INSPECTION AND DELIVERY OF RECORDS
18.1.
The Cedent shall at all times keep up-to-date records of its Rights and
Interests ceded in security to Land Bank and shall comply with any reasonable
directions Land Bank may give in regard to the keeping of those records.
18.2.
Land Bank or anyone authorised by Land Bank may at any time inspect any of the
Cedent’sbooks of account and other records, including books of account and
records in the possession of a third party.
18.3.
If Land Bankat any time so requests, the Cedentshall at its own cost deliver to
Land Bank certified copies of any of the Cedent’sbooks and records.
14
19.
CERTIFICATE OF INDEBTEDNESS
A certificate signed by any director, officer or manager of Land Bank, whose
appointment and/or authority need not be proved, reflecting:
19.1.
the amount owing by the Cedentto Land Bank under any Obligation, and the due
date for payment of such amounts; and/or
19.2.
the amount(s) realised by the realisation or sale of all or any of the Rights
and Interests and the date(s) of realisation thereof,
will be prima facie evidence of the contents thereof.
20.
LEGAL EXCEPTIONS
The Cedent expressly waives and renounces the legal benefits and exceptions: no
monies received, no value received, revision of accounts and errors in
calculation and declares itself to be fully acquainted with the meaning and
effect of those exceptions and the renunciation thereof.
21.
POWER OF ATTORNEY
The Cedent hereby irrevocably and in rem suam authorises and appoints Land Bank,
with full power, including the power of substitution, as the Cedent’s agent, in
its name, place and stead to -
21.1.
sign and execute any document in the Cedent’s name; and
21.2.
do all such things which may be necessary or desirable; and
21.3.
enforce the rights granted to Land Bank herein; and
21.4.
endorse all negotiable instruments and other documents of whatsoever nature so
as to constitute Land Bank the holder thereof and/or to enable Land Bank to
obtain payment thereunder or in connection therewith,
in order to give proper effect to the terms hereof, provided that the provisions
of this clause 21 shall not become operative until the occurrence of a breach or
failure timeously to pay or to perform any of the Obligations.
22.
NOTICES AND DOMICILIA
22.1.
terms of this Agreement, each of the Parties chooses a domiciliumcitandi et
15
The Cedent at:
the address and fax number stipulated in the Schedule
Land Bank at:
Block D, Eco Glades 2 Office Park, 420 Witch Hazel Avenue, Eco Park, CENTURION
Fax No:
012 686 0957
Attention:
The Head: B&CB
22.2.
Any Party may at any time, by notice in writing to the other Parties, change its
or post restante.
22.3.
22.3.1.
22.3.2.
22.3.3.
sent by fax (if the domicilium includes a fax number),
to the domicilium chosen by the Party concerned.
22.4.
the disputing Party proves the contrary):
22.4.1.
22.4.2.
if sent by courier, on the date of delivery by the courier service concerned; or
22.4.3.
if sent by fax, on the first Business Day after the date of transmission.
22.5.
Any written notice (including any electronic mail) actually received by a Party
shall be valid, notwithstanding that it may not have been given in accordance
with the preceding provisions of this clause 22.
23.
LAW AND JURISDICTION
23.1.
South Africa.
23.2.
The Cedent acknowledges that the Land Bank may in its discretion institute
proceedings against it in the magistrate’s court and to this extent it consents
to the jurisdiction of the magistrate's court having jurisdiction in terms of
section 28 of the Magistrates' Courts Act,
16
1944, in respect of any action or application arising out of or in connection
with its obligations under this Agreement notwithstanding that the amount in
issue may exceed the jurisdiction of such court.
23.3.
The Cedent further acknowledges that Land Bank may commence legal action or
Court indicated in the Schedule and irrevocably submits to the non-exclusive
jurisdiction of such courtand agrees that any costs awarded against it be
client.
23.4.
The Cedent appoints any person (at the address chosen as its domiciliumcitandi
The Cedent irrevocably waives any objection it may now or hereafter have that
such action or proceeding has been brought in an inconvenient forum. The Cedent
further irrevocably consents to the service of process in any such action or
proceeding as contemplated in clause 22. Nothing herein shall affect the right
to serve process in any other manner permitted by law. The Cedent irrevocably
agrees not to claim for itself or its assets immunity from suit, execution,
attachment or otherwise, to the full extent permitted by applicable laws.
23.5.
This submission to jurisdiction shall not (and shall not be construed so as to)
limit the right of Land Bank to take proceedings against the Cedentin whatever
other jurisdiction Land Bank considers appropriate nor shall the taking of
in any other jurisdiction whether concurrently or not.
24.
STATUTORY POWERS
25.
COUNTERPARTS
This Agreement may be executed in two or more counterparts all of which, when
read together, shall constitute one and the same instrument.
26.
SUCCESSORS AND ASSIGNS
26.1.
This Agreement shall be binding on and inure to the benefit of Land Bank and the
Cedentand their respective successors, transferees and permitted assigns.
26.2.
The Cedentshall not be entitled to cede any of their rights or transfer or
purport to transfer any of its obligations hereunder.
17
27.
PROVISIONS SEVERABLE
impaired thereby in any other jurisdiction. The Parties agree that in such
unenforceable provisions so as to implement the intention of the Parties hereto
28.
28.1.
This Agreement and the Schedule constitute the whole agreement between the
28.2.
executed pursuant to or in terms of this Agreementand no settlement of any
disputes arising under this Agreementand no extension of time, waiver or
terms of this Agreementshall be binding unless recorded in a written document
relaxation or suspension, signed by the Party granting such extension, waiver or
28.3.
28.4.
To the extent permissible by law no Party shall be bound by any express or
18
29.
INDEPENDENT ADVICE
The Cedentacknowledges that it has been free to secure independent legal and
Agreementand that it has either taken such independent legal and other advice or
dispensed with the necessity of doing so. Further, the Cedentacknowledges that
all of the provisions of this Agreementand the restrictions herein contained
have been negotiated as between it and the other parties hereto and are part of
the overall intention of the Parties in connection with this Agreement.
30.
COSTS
Save if expressly agreed in writing to the contrary, each Party shall bear its
own costs of and incidental to the negotiation, drafting and implementation of
this Agreement.
Signature 1:
Name:
Franklin Williams
Date:
23/04/2012
Place:
Centurion
Witness:
Witness:
Signature 2:
Name:
Victor Mabuli
Date:
Place:
Centurion
Witness:
Witness:
THE CEDENT
Signature:
Name:
Roger Duffield
Date:
23 April 2012
Place:
Centurion
Witness:
Witness:
CEDENT
Signature:
Name:
Date:
Place:
Witness:
Witness:
19
SCHEDULE 1TO THE AGREEMENT
dated as at 17th February 2012
Capitalised terms in this Schedule bear the meaning ascribed thereto in the
Agreement.
Cedent
meansBreakwood Trading 22(Pty) Ltd (Registration No.2010/016073/07) herein
represented byRoger Duffieldin his capacityas Chief Executive Officerand duly
authorised thereto by virtue of a resolution dated 17th February 2012 and
attached hereto.
Agreement(s)
means the following written loan agreement titled:
·
Term Loan Facility in the amount of R8 770 000.00 (Eight Million Seven Hundred
and Seventy Thousand Rand Only); and
·
Revolving Loan Facility in the amount of R13 120 000.00 (Thirteen Million One
Hundred and Twenty Thousand Rand Only); and
concluded or to be concluded between Land Bank and the Cedent, contemporaneously
with this Agreement, pursuant to which Land Bank has made advances to the
Borrowerin accordance with Land Bank Act.
Insurances
INSURER
COVER
POLICY NUMBER
North Gauteng High Court
7 Palm Street, White River, 1240
Email:limpopogreen@aol.com
Telefax No.:
Attention: Roger Duffield
Signature:
Name:
Franklin Williams
Date:
Place:
Centurion
Witness:
Witness:
Signature:
Name:
Victor Mabuli
Date:
Place:
Centurion
Witness:
Witness:
Breakwood Trading 22 (Proprietary) Limited
Signature:
Name:
Roger Duffield
Date:
23 April 2012
Place:
Centurion
Witness:
Witness:
Signature:
Name:
Date:
Place:
Witness:
Witness:
20
[Note: Insert the authorising board/trustees/members resolution contemplated in
the Schedule as an annexure to this Agreement.]
|
Exhibit 10.65
LOGO [g257108g04d78.jpg]
AMD Austin
7171 Southwest Parkway
Austin TX 78735
T 512.602.1000
amd.com
Personal and Confidential
December 5, 2011
Dear Lisa:
of employment in our growing company to be based in Austin, TX.
You are being offered the position of Senior Vice-President & General Manager,
Product Group, reporting to Rory Read, President & Chief Executive Officer.
Your employment will begin on a date mutually acceptable to you & Rory Read. All
new AMD employees start on a Monday.
Base Salary Your initial bi-weekly salary will be $22,115.38 ($575,000.00
annualized). All payments are subject to deductions and withholdings required by
law.
Conditional Sign-On Bonus You will be paid a one-time Conditional Sign-On Bonus
of up to $225,000 (“Bonus”), subject to all required taxes and withholdings. Due
to your voluntary termination of employment with your prior employer, it is
expected that you will not be paid a bonus for the second half of the 2011
performance period or a bonus at a level commensurate with the bonuses paid to
other executives of your prior employer. However, if your are paid a bonus by
her your prior employer for the second half of the 2011 performance period, the
amount of the Bonus payable hereunder will be reduced by the amount of the bonus
you receive . You are expected to inform AMD of the amount of any bonus paid to
you by your prior employer with respect to the second half of the 2011
performance period. You will receive this bonus payment, if any, within 30 days
of the date of your start of employment with AMD. The bonus is only earned in
its entirety when you have been employed at AMD for two full years. If your AMD
employment terminates prior to two years from your hire date, you must repay to
AMD all or a prorated amount of the bonus according to the terms and conditions
of the enclosed Conditional Sign-On Bonus Agreement. In addition, if you receive
a bonus from your prior employer for the second half of the 2011 performance
period following payment of the Bonus, you must repay AMD an amount equal to the
bonus your received from your prior employer (not to exceed $225,000). You must
sign and date the enclosed Conditional Sign-On Bonus Agreement, and return the
original of the agreement along with the original of this executed offer and
acceptance letter.
Executive Incentive Plan You will be eligible to participate in AMD’s Executive
Incentive Plan (Bonus Plan) in accordance with the terms and conditions of the
applicable Bonus Plan document. Your initial target bonus opportunity will be
100% of your Base Salary. All Bonus Plan payments are at the discretion of AMD
and/or employment dates. Target bonus opportunities are subject to review and
may be adjusted, generally each plan year. All Bonus Plan payments are subject
to deductions and withholdings required by law.
Performance Bonus Plan You will be eligible for a one-time Performance Bonus up
to $100,000. The amount of the bonus will be based on you achieving specific
objectives assigned to your position, overall company financial results and the
assessment of the President & Chief Executive Officer and the Compensation
Committee, for the performance period ending December 31, 2012.
Long Term Incentives You will be granted a quantity of stock options and
restricted stock units (RSU’s) with a combined target value equivalent to USD
3,250,000. The formula for determining the number of RSU’s and stock options
follows:
•
# of RSU’s = USD 1,625,000 divided by the 30-day average closing price through
the grant date
•
# of stock options = USD 1,625,000 divided by the 30-day average closing price
through the grant date and divided by 41.71%(Q3 2011 option pricing valuation
using the Binomial Option Pricing Model)
The Compensation Committee of the Board of Directors has approved both grants
and has set the date of grant as the 15th of the month following your first day
of employment with AMD. The RSU’s will generally vest over a 36-month period
from date of grant: 33.3% after approximately 12 months from the date of grant,
and then 33.3% every 12 months over the next 24 months, assuming continuous
active service. The stock options will vest over a 36-month period from the date
of grant: 33.3% after approximately 12 months from the date of grant, and then
8.3% every three months over the next 24 months, assuming continuous active
service. The stock option and RSU grants are an opportunity provided by AMD that
is separate from and in addition to your regular compensation, with rights and
obligations governed by the applicable equity plan documents.
Benefits AMD makes available to its employees a comprehensive benefits program,
including medical, dental, vision, life and disability coverage, and 401(k)
retirement savings plan. You will receive additional details about these
benefits, including eligibility terms.
Vacation and Holidays At the outset of your employment, you will be eligible for
15 days of vacation per calendar year, pro-rated during your first calendar year
of employment. In addition, AMD offers its employees at least 10 paid holidays
each year.
Background Check and Export License Requirements This offer is contingent upon
you successfully passing a background investigation to be performed by AMD’s
Security Investigations Department. As lawfully permitted, this background
investigation includes an investigation of criminal records, previous employment
history and references, and educational background. If applicable, this offer is
also contingent on AMD successfully obtaining an export license for you in
accordance with government regulations. Please protect your current employment
until the background check and export license processes are complete.
Proof of Employment Eligibility In accordance with the requirements of the
Immigration Reform and Control Act of 1986, you will be required to complete an
I-9 Employment Authorization Verification form and provide AMD with documents to
verify your identity and your legal right to work in the United States. You must
present this documentation on your first day of employment.
AMD Agreement and Acknowledgments This offer is contingent upon you signing and
returning the enclosed AMD Agreement and completing all new employee orientation
requirements (including acknowledging AMD’s Worldwide Standards of Business
Conduct). Your employment with AMD is “at-will,” which means that you or AMD may
terminate it at any time, with or without cause or notice. By signing this
letter, you acknowledge that you are not aware of any legal or contractual
reason you cannot accept employment with or perform work for AMD. The terms in
this letter accurately and completely describe your employment agreement with
AMD, and supersede any other oral or written agreements or promises made to you.
Initials
your name below and return the original signed and dated document to me. This
offer will remain open until Tuesday January 3, 2012. If you have any questions,
Lisa, we look forward to you joining AMD’s winning team!
Sincerely,
LOGO [g257108g60f50.jpg]
John Termotto
1-800-538-8450 x50279
Jan 3, 2012
Signature Start Date*
December 14, 2011
Date Signed
* If a start date has been agreed upon, please indicate that date above. If a
date has not yet been determined, please contact your recruiter. Please note
that all new AMD employees start on a Monday.
Initials |
February 10, 2012 THE DREYFUS/LAUREL FUNDS, INC. THE DREYFUS/LAUREL FUNDS TRUST THE DREYFUS/LAUREL TAX-FREE MUNICIPAL FUNDS Supplement to Current Statement of Additional Information The following information supplements and supersedes any contrary information contained in the Funds’ Statement of Additional Information. Effective February 8, 2012, the following person is an additional Board member of the Funds: Name (Age) Position with the Funds Principal Occupation During Past 5 Years Other Public Company Board Memberships During Past 5 Years Francine J. Bovich (60) Board Member Trustee, The Bradley Trusts, private trust funds (2011 – Present) Managing Director, Morgan Stanley Investment Management (1993-2010) N/A Ms. Bovich has been employed in the investment industry for over 38 years. Ms. Bovich currently serves as a Trustee for The Bradley Trusts, private trust funds. She is an Emeritus Trustee of Connecticut College, where she served as Trustee from 1986 to 1997, and also currently serves as Chair of the Investment Sub-Committee for Connecticut College’s endowment fund. From April 1993 until September 2010, Ms. Bovich was a Managing Director at Morgan Stanley Investment Management, holding various positions including Co-Head of Global Tactical Asset Allocation Group, Operations Officer, and Head of the U.S. Institutional Equity Group. Prior to joining Morgan Stanley Investment Management, Ms.
|
Consent of Independent Registered Public Accounting Firm The Board of Trustees and Shareholders of Salient MLP & Energy Infrastructure Fund: We consent to the use of our report dated January 26, 2012 for Salient MLP & Energy Infrastructure Fund, incorporated herein by reference, and to the references to our firm under the headings "Financial Highlights” in the Prospectus and “Independent Registered Public Accounting Firm" inthe Statement of Additional Information. /s/ KPMG LLP Columbus, Ohio August 29, 2012
|
Exhibit 10.72
No. 2015-25 June 30, 2015
Warrant
This Warrant (the “Warrant”) certifies that, for value received, JL-BBNC MEZZ
UTAH, LLC, an Alaska limited liability company, and its permitted transferees,
successors and assigns (the “Holder”), is entitled to purchase from TWINLAB
CONSOLIDATED HOLDINGS, INC., a Nevada corporation (the “Company”), 403,509
price of $0.01 per share (the “Exercise Price”), at any time prior to 5:00 P.M.
Eastern Time on June 30, 2020 (the “Expiration Date”).
ARTICLE I
DEFINITIONS
the following meanings:
“Adjusted EBITDA” shall mean EBITDA plus any expenses relating to Acquisitions
(as defined in the Purchase Agreement) following the Effective Date (as defined
in the Purchase Agreement) of the Purchase Agreement, plus severance payments
and other costs relating to permanent headcount reductions, all as determined by
GAAP.
“Applicable Law” means all provisions of laws, statutes, ordinances, rules,
“Business Day” shall have the meaning set forth in the Purchase Agreement.
“Change in Control” shall have the meaning set forth in the Purchase Agreement.
“Current Holder’s Equity Interest” means 403,509 shares of common stock of the
Interest previously issued pursuant to the exercise of this Warrant and subject
to any adjustment pursuant to Section 3.3.
1
“Delivery Date” shall have the meaning given to such term in Section 3.2.
“EBITDA” shall have the meaning set forth in the Purchase Agreement.
“Equity Interest” shall have the meaning set forth in the Purchase Agreement.
“Executive Officer” shall mean, with respect to the Company, its Chief Executive
“Exercise Price” shall have the meaning set forth in the Preamble.
“Expiration Date” shall have the meaning set forth in the Preamble.
“Fair Market Value” shall, except in the event of a private placement by the
Company of its common stock, mean (i) the trading volume weighted average
closing price of the common stock of Company for the twenty (20) trading days
immediately preceding the applicable date in question, as quoted on (a) a
domestic securities exchange, (b) NASDAQ Stock Market or (c) a domestic
over-the-counter market, which trades are reported by Pink OTC Markets Inc. or
any similar successor organization or any other over-the-counter market in the
United States, as the case may be; or (ii) in the event that the common stock of
the Company is not trading on a market such that a value can be derived under
subsection (i) of this definition as of the applicable date in question, a
valuation per share of the common stock of the Company as determined in
accordance with Generally Accepted Valuation Principles by an independent
third-party valuation firm mutually agreed upon by the parties (and if the
parties cannot mutually agree on a valuation firm, one of the “big four”
accounting firms chosen by the Holder). In the event of a private placement by
the Company of its common stock, “Fair Market Value” shall mean the average
price per share of common stock in such private placement, including any
warrants, options or other agreements providing the right to purchase shares of
“Fiscal Year” shall have the meaning set forth in the Purchase Agreement.
“Fully-Diluted Basis” shall have the meaning set forth in the Purchase
Agreement.
2
“Governmental Authority” shall have the meaning set forth in the Purchase
Agreement.
“Holder's Equity Interest” shall have the meaning given to such term in Section
3.3.
including its articles or certificate of incorporation, formation or
organization, as filed or recorded with an applicable Governmental Authority or
(ii) governs the internal affairs of such Person, including its by-laws or its
operating, partnership or limited liability company agreement, in each case as
“Qualified Assignment” shall mean any of the following: (a) an assignment to a
transferee acquiring at least 25% of the Equity Interests subject to the Warrant
similar events); or (b) an assignment to an Affiliate of the Holder.
“Rights Agreement” shall have the meaning given to such term in Section 4.1.
“Warrant” or “Warrants” shall mean this Warrant.
“Warrant Register” shall have the meaning given to such term in Section 2.1.
3
to them under GAAP. The terms “include,” “includes” and “including” shall be
“Articles”, “Sections,” “Subsections,” “Exhibits,” “Preamble,” “Annexes,” and
“Schedules” are to articles, sections, subsections, exhibits, preamble, annexes
provided. References to “days” and “months” refer to calendar days and calendar
Agreement. The term “dollars” or “$” means United States Dollars.
ARTICLE II
purchase the same Current Holder’s Equity Interest which could be purchased
pursuant to the Warrant being so exchanged. In order to effect an exchange
permitted by this Section 2.2, the Holder shall deliver to the Company such
signed by the Holder thereof specifying the number and denominations of Warrants
issued. Within ten (10) Business Days of receipt of such a request, the Company
issued in such exchange.
4
the Holder of the Warrant being exchanged.
(a) Subject to Section 2.3(c) hereof and the Purchase Agreement, each
delivering to the Company such Warrant accompanied by a properly completed
of such Assignment Form the Company shall issue, register and deliver to the new
Holder, subject to Section 2.3(c) hereof a new Warrant or Warrants of like kind
and tenor representing in the aggregate the right to purchase the same Current
Holder’s Equity Interest which could be purchased pursuant to the Warrant being
or transferee thereof supplies to the Company an opinion of counsel, reasonably
(c) The transfer of Warrants and any Equity Interest purchased
thereunder shall be permitted, so long as such transfer is pursuant to a
Securities Act, and the Company may require an opinion of counsel in form and
substance reasonably satisfactory to it to such effect prior to effecting any
transfer of Warrants or any Equity Interest purchased thereunder.
ARTICLE III
SECTION 3.1 Exercise of Warrants. On any Business Day prior to the Expiration
Date, the Holder may exercise this Warrant, in whole or in part, by delivering
to the Company this Warrant accompanied by a properly completed Exercise Form in
the form of Annex 1 and a check in an aggregate amount equal to the applicable
Exercise Price.
5
(a) The Company represents and warrants that the authorized Equity
Interest of the Company consists solely of (i) 5,000,000,000 shares of common
stock, par value $0.001 per share, of which only 220,657,895 common shares have
been issued and 219,952,969 common shares remain outstanding as of the date
hereof (taking into account shares pending to be surrendered by Tom Tolworthy
pursuant to a Surrender Agreement) and (ii) 500,000,000 shares of preferred
stock, of which no preferred shares have been issued as of the date hereof. The
hereof are duly authorized, validly issued, fully paid and non-assessable. The
delivery to the Holder of certificates representing the Equity Interest that the
Holder purchases pursuant to the exercise of this Warrant shall grant to the
Holder good and valid title to the Equity Interest represented by such
certificate, free and clear of any and all liens, pledges, security interests,
charges or encumbrances of any kind or nature or any option, warrant or trust
Section 3.1, the Company (the “Delivery Date”) shall issue the Equity Interest
that the Holder has purchased pursuant to such exercise, deliver to the Holder
the certificates representing such Equity Interest and reflect the issuance of
such Equity Interest, which Equity Interest shall be duly authorized, validly
issued, outstanding, fully paid and non-assessable, in the Company’s shareholder
records (maintained by the Company or its duly appointed transfer agent),
whereupon the Holder shall be deemed for all purposes, effective as of the
Delivery Date, to be a holder of record and beneficial owner of the Equity
Interest that it has purchased pursuant to such exercise.
Equity Interest which could be purchased or received hereunder, the Company
new Warrant of like kind and tenor to this Warrant evidencing the right to
purchase the remaining Equity Interest represented by the Warrant. This Warrant
shall be cancelled upon surrender thereof pursuant to Section 3.1.
publicly filed with the U.S. Securities and Exchange Commission, neither the
Company nor its Subsidiaries has any liabilities or obligations of any nature
due) which are not fully reflected or reserved against on the balance sheet as
of June 30, 2014 in accordance with GAAP, except for liabilities and obligations
SECTION 3.3 Adjustment of Holder’s Equity Interest. The Equity Interest issuable
upon exercise of this Warrant (such Equity Interest is referred to herein as the
“Holder's Equity Interest”) shall be subject to adjustment from time to time in
6
assets or property to, another Person, then the Company shall cause effective
membership or other equity interests, other securities, cash or other property
to which a holder of the Equity Interest deliverable upon exercise or exchange
of such Warrant would have been entitled upon such event. The Company shall not
consolidate or merge unless, prior to consummation, the successor corporation
(if other than the Company) assumes the obligations of this paragraph by written
instrument executed and mailed to the Holder at the Holder’s address set forth
in Section 5.1. A sale or lease of all or substantially all the assets of the
consisting primarily of securities is a consolidation or merger for the
foregoing purposes.
merger covered by subsection (a) above) is at any time proposed, the Company
shall give at least 30 days’ prior written notice to the Holder. Such notice
shall contain: (1) the date on which the transaction is to take place; (2) the
record date (which shall be at least 30 days after the giving of the notice) as
of which the Holder will be entitled to receive distributions as a result of the
of the distributions to be made to the Holder as a result of the transaction and
(5) an estimate of the fair value of the distributions. On the date of the
terminate.
SECTION 3.3.3 Adjustments to the Current Holder’s Equity Interest.
Subject to the terms of this Section 3.3.3, the Current Holder’s Equity Interest
(and the Warrant) shall be subject to increase (but not decrease) as follows:
(a) In the event that (i) prior to December 18, 2018 the Company
completes a private placement of its common stock and 50% of the Fair Market
Value of the Company’s common stock in such private placement is less than
$0.385 per share, or (ii) 50% of the Fair Market Value of the Company’s common
stock as of December 31, 2018 is less than $0.385 per share, then in each case
the existing Current Holder’s Equity Interest applicable to the Warrant at such
time shall increase (but not decrease) to a new Current Holder’s Equity Interest
7
New Current Holder’s Equity Interest = [(2 x Existing Current Holder’s Equity
Interest) x ($0.385 ÷ 50% of FMV)] – Existing Current Holder’s Equity Interest.
(b) In the event that Holder exercises the Warrant in whole or in part
prior to December 31, 2018 and Fair Market Value of the Company’s common stock
on the date of such exercise is less than $0.385 per share, then the Current
Holder’s Equity Interest with respect solely to those shares being exercised
shall increase (but not decrease) pursuant to the same formula set forth in
Section 3.3.3(a) above, such that the formula would apply only to the shares
being exercised, as follows:
New Current Holder’s Equity Interest for Exercised Shares = [(2 x Existing
Current Holder’s Equity Interest in the Exercised Shares) x ($0.385 ÷ 50% of FMV
as of the Exercise Date)] – Existing Current Holder’s Equity Interest in the
Exercised Shares
(c) Solely for the purposes of illustration, examples of the
calculations described in this Section 3.3.3 are set forth on Schedule 3.3.3
attached hereto.
(d) The foregoing notwithstanding, the adjustment to Current Holder’s
Equity Interest provided for in this Section 3.3.3 shall not apply to any
private placement completed by the Company on or prior to September 30, 2015
with (i) David L. Van Andel; (ii) David L. Van Andel Trust, under Trust
Agreement dated November 30, 1993; (iii) the Holder; (iv) Penta Mezzanine SBIC
Fund I, L.P.; (v) JL Properties, Inc.; or (vi) MidCap Funding X Trust, or any of
the parent companies, subsidiaries, or affiliates of any of the foregoing
persons or entities.
SECTION 3.3.4 Notice; Calculations; Etc. Whenever the Equity Interest
8
ARTICLE IV
CERTAIN OTHER RIGHTS
SECTION 4.1 Registration Rights.
(a) At any time at which this Warrant or the Equity Interest underlying
the same remains outstanding, upon the request of the Holder, the Company will
enter into a registration rights agreement with Holder (the “Rights Agreement”).
Such Rights Agreement shall provide that beginning October 1, 2015, if the
Company is eligible for the use of a registration statement on Form S-3, then
the Holder shall have the right to request an initial registration and
thereafter on a quarterly basis after such initial registration shall have been
declared effective by the U.S. Securities and Exchange Commission, registration
of its Equity Interests on Form S-3 or any similar short-form registration
(each, a "Demand Registration"). The Rights Agreement will provide that each
request for a Demand Registration shall specify the approximate number of Equity
Interests requested to be registered and that the Company shall cause a
registration statement on Form S-3 (or any successor form) to be filed within
twenty (20) days after the date on which the initial request is given and shall
declared effective by the Commission as soon as practicable thereafter. The
Rights Agreement will provide that the Company may postpone for up to ninety
(90) days the filing or effectiveness of a registration statement for a Demand
Registration if the Company determines in its reasonable good faith judgment
acquisition, corporate reorganization or other similar transaction involving the
Act or Exchange Act. The Rights Agreement shall contain such other terms and
conditions applicable to the Holder no less favorable to the Holder than
registration rights made available to any other holder of any Equity Interest or
other equity security of the Company.
(b) The rights to cause the Company to register Equity Interests
pursuant hereto may be assigned (but only with all related obligations) by the
Holder in a Qualified Assignment; provided, that, (i) the Company is, upon or
the name and address of such transferee and the securities with respect to which
such registration rights are being assigned, (ii) such transferee or assignee
Warrant, (iii) such assignment shall be effective only if immediately following
such transfer the further disposition of such securities by transferee or
assignee is restricted under the Securities Act, and (iv) such assignment shall
be effective only if immediately following such transfer such Equity Interests
continue to be Equity Interests of the Company.
ARTICLE V
MISCELLANEOUS
reputable courier service:
600 East Quality Drive
Attention: Mark Jaggi, Chief Financial Officer
Facsimile: (801) 763-0789
e-mail: MJaggi@twinlab.com
9
and
Attention: Richard Neuwirth, Chief Legal Officer
VARNUM LLP
Bridgewater Place, P.O. Box 352
Attention: Mary Kay Shaver
Facsimile: (616) 336-7000
e-mail: mkshaver@varnumlaw.com
and
WILK AUSLANDER LLP
1515 Broadway, 43rd Floor
Attention: Joel I. Frank
e-mail: jfrank@wilkauslander.com
JL-BBNC Mezz Utah, LLC
701 West 8th Street, Suite 1200
Anchorage, AK 99501
Attention: Joshua D. Hodes
Anchorage, AK 99501
10
the Company.
the Holder; provided, however, that, notwithstanding the foregoing, this Warrant
will automatically be amended, without any further action required by the
Company and the Holder under this Section 5.3, in the event the Current Holder’s
Equity Interest is adjusted pursuant to Section 3.3.3.
SECTION 5.4 Severability. If any provision of this Agreement shall be held to be
SECTION 5.8 Entire Agreement. This Warrant, together with the other documents
and instruments entered into by the parties thereto in connection therewith,
respect thereto.
11
JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN NEW YORK COUNTY, NEW
YORK FOR THE PURPOSE OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER,
JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION. THE PARTIES HEREBY
12
13
written.
a Nevada corporation By: /s/ Thomas A. Tolworthy Name: Thomas A.
Signature Page To Warrant 2015-25
14
ACKNOWLEDGED AND AGREED: JL-BBNC MEZZ UTAH, LLC an Alaska limited
liability company By: /s/ Jonathan B. Rubini Name: Jonathan B.
Rubini Title: Managing Member
15
ANNEX 1
ELECTION TO EXERCISE FORM
(To Be Executed By the Holder of This Warrant
such Equity Interest.
Signature Address
Dated:
16
ANNEX 2
ASSIGNMENT FORM
Nevada corporation.
Signature Address
Dated:
17
ANNEX 3
EXCHANGE FORM
corporation.
Equity Interest Assignee
Signature Address
_________________________.
Dated:
Schedule 3.3.3
Calculations for Adjustment of Current Holder’s Equity Interest
In the event that (i) prior to December 18, 2018 the Company completes a private
placement of its common stock and 50% of the Fair Market Value of the Company’s
common stock in such private placement is less than $0.385 per share, (ii) 50%
of the Fair Market Value of the Company’s common stock as of December 31, 2018
is less than $0.385 per share, or (iii) Holder exercises the Warrant in whole or
in part prior to December 31, 2018 and Fair Market Value of the Company’s common
stock on the date of such exercise is less than $0.385 per share, then in each
case, the existing Current Holder’s Equity Interest will increase (but not
decrease) consistent with the following examples:
Section 3.3.3(a) - Example Where Warrant Has Remained Unexercised as of December
31, 2018
Solely for illustration purposes:
Assumptions:
·Original Investment: $760,000
·Price per share: $0.76
·Total Shares: 1,000,000
·FMV of Company’s common stock: $.50/share
·No exercises of Warrant through December 31, 2018
New Current Holder’s Equity Interest:
= [(2 x 1,000,000) x (0.385 ÷ 0.25)] – 1,000,000
= [2,000,000 x 1.54] – 1,000,000
= 3,080,000 – 1,000,000
= 2,080,000 (an increase of 1,080,000 over existing CHEI)
At a $0.01/share exercise price, to fully-exercise the New Current Holder’s
Equity Interest would cost $20,800. Together with the original investment of
$760,000, the Holder’s total investment would equal $780,800 for 3,080,000
shares, or $0.25/share.
Section 3.3.3(b) - Example Assuming Warrant is Partially Exercised Prior to
Same assumptions as above, but assume 750,000 of the 1,000,000 shares are
exercised in a partial exercise.
New Current Holder’s Equity Interest for the portion of the Warrant the Holder
is exercising:
= [(2 x 750,000) x (0.385 ÷ 0.25)] – 750,000
= [1,500,000 x 1.54] – 750,000
= 2,310,000 – 750,000
= 1,560,000 (an increase of 756,000 over existing CHEI)
2
At a $0.01/share exercise price, to fully exercise the New Current Holder’s
Equity Interest for the portion of the Warrant the Holder is then exercising
would cost $15,600. Together with the original investment of $570,000 for the
corresponding number of original investment shares (i.e., 750,000 shares at
$0.76/share), the Holder’s total investment related to the portion of the
Warrant so exercised would equal $585,600 for 2,310,000 shares, or $0.25/share.
The Holder would retain the right to exercise the remaining 250,000 shares.
3
|
Name: 77/619/EEC: Council Decision of 27 September 1977 instituting a study of informatic systems for the processing of data on imports/exports and on the management and financial control of agricultural market organizations
Type: Decision
Subject Matter: nan
Avis juridique important|31977D061977/619/EEC: Council Decision of 27 September 1977 instituting a study of informatic systems for the processing of data on imports/exports and on the management and financial control of agricultural market organizations Official Journal L 255 , 06/10/1977 P. 0032 - 0034 Greek special edition: Chapter 03 Volume 19 P. 0121 ****( 1 ) OJ NO C 28 , 9 . 2 . 1976 , P . 6 . ( 2 ) OJ NO C 131 , 12 . 6 . 1976 , P . 8 . ( 3 ) OJ NO C 86 , 20 . 7 . 1974 , P . 1 . COUNCIL DECISION OF 27 SEPTEMBER 1977 INSTITUTING A STUDY OF INFORMATIC SYSTEMS FOR THE PROCESSING OF DATA ON IMPORTS/EXPORTS AND ON THE MANAGEMENT AND FINANCIAL CONTROL OF AGRICULTURAL MARKET ORGANIZATIONS ( 77/619/EEC ) THE COUNCIL OF THE EUROPEAN COMMUNITIES , HAVING REGARD TO THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY , AND IN PARTICULAR ARTICLE 235 THEREOF , HAVING REGARD TO THE PROPOSAL FROM THE COMMISSION , HAVING REGARD TO THE OPINION OF THE EUROPEAN PARLIAMENT ( 1 ), HAVING REGARD TO THE OPINION OF THE ECONOMIC AND SOCIAL COMMITTEE ( 2 ), WHEREAS , WITH A VIEW TO GIVING A COMMUNITY ORIENTATION TO POLICIES FOR ENCOURAGING AND PROMOTING DATA PROCESSING THE COUNCIL AGREED IN ITS RESOLUTION OF 15 JULY 1974 ON A COMMUNITY POLICY ON DATA PROCESSING ( 3 ) TO ADOPT , ON A PROPOSAL FROM THE COMMISSION , COMMON PROJECTS OF EUROPEAN INTEREST IN THE FIELD OF DATA PROCESSING APPLICATIONS ; WHEREAS , AS REGARDS THE ADMINISTRATION OF THE CUSTOMS UNION AND THE COMMON AGRICULTURAL POLICY , IT IS ESSENTIAL THAT IMPORT/EXPORT DATA AND DATA ON THE AGRICULTURAL MARKET AND ITS FINANCIAL CONTROL ARE RAPIDLY COMMUNICATED AND PROCESSED ; WHEREAS SUCH A PROJECT SEEMS NECESSARY IN ORDER TO ATTAIN CERTAIN OBJECTIVES OF THE COMMUNITY WITHIN THE FUNCTIONING OF THE COMMON MARKET ; WHEREAS THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY HAS NOT PROVIDED THE NECESSARY POWERS , HAS DECIDED AS FOLLOWS : ARTICLE 1 A STUDY OF INFORMATIC SYSTEMS FOR THE PROCESSING OF DATA ON IMPORTS/EXPORTS AND ON THE MANAGEMENT AND FINANCIAL CONTROL OF AGRICULTURAL MARKET ORGANIZATIONS IS HEREBY INSTITUTED . THIS STUDY IS DEFINED IN SECTION II OF THE ANNEX . ARTICLE 2 THE DURATION OF THE STUDY SHALL BE 18 MONTHS . THE APPROPRIATIONS NECESSARY FOR CARRYING IT OUT , WHICH SHALL AMOUNT TO 722 000 UNITS OF ACCOUNT , SHALL BE ENTERED IN THE BUDGET OF THE EUROPEAN COMMUNITIES . ARTICLE 3 THE COMMISSION SHALL BE RESPONSIBLE FOR PUTTING THE STUDY INTO EFFECT . IT SHALL BE ASSISTED BY THE ADVISORY COMMITTEE ON JOINT DATA PROCESSING PROJECTS , HEREINAFTER REFERRED TO AS THE ' COMMITTEE ' . THE COMMISSION SHALL SUBMIT A REPORT TO THE COUNCIL AT THE END OF THE STUDY . ARTICLE 4 THE AWARD OF CONTRACTS TO ORGANIZATIONS WHICH ARE TO PERFORM THE WORK SHALL BE SUBJECT TO THE CONDITIONS SET OUT BELOW . IF , FOLLOWING EXAMINATION OF A DOSSIER , THE COMMISSION PROPOSES TO AWARD A CONTRACT , IT SHALL SEND THE COMMITTEE A DRAFT DECISION ACCOMPANIED BY A REPORT . THE COMMITTEE SHALL GIVE ITS OPINION WITHIN ONE MONTH . OPINIONS SHALL BE DELIVERED BY A MAJORITY OF 41 VOTES , THE VOTES OF THE MEMBER STATES BEING WEIGHTED AS PROVIDED IN ARTICLE 148 ( 2 ) OF THE TREATY . THE CHAIRMAN SHALL NOT VOTE . THE COMMISSION SHALL TAKE A DECISION WHICH SHALL BE IMMEDIATELY APPLICABLE . HOWEVER , IF THE DECISION IS NOT IN ACCORDANCE WITH THE COMMITTEE ' S OPINION , IT SHALL BE IMMEDIATELY COMMUNICATED BY THE COMMISSION TO THE COUNCIL . IN THIS EVENT THE COMMISSION SHALL DEFER APPLICATION OF ITS DECISION BY NO MORE THAN TWO MONTHS FROM THE DATE OF THIS COMMUNICATION . THE COUNCIL , ACTING BY A QUALIFIED MAJORITY , MAY TAKE A DIFFERENT DECISION WITHIN TWO MONTHS . DONE AT BRUSSELS , 27 SEPTEMBER 1977 . FOR THE COUNCIL THE PRESIDENT A . HUMBLET **** ANNEX STUDY OF INFORMATIC SYSTEMS FOR THE PROCESSING OF DATA ON IMPORTS/EXPORTS , AND ON THE MANAGEMENT AND FINANCIAL CONTROL OF AGRICULTURAL MARKET ORGANIZATIONS I . INTRODUCTION THE PROJECT COVERS AN IN-DEPTH STUDY AIMED AT DETERMINING LONG-TERM DETAILED REQUIREMENTS FOR A COMMUNITY FRAMEWORK ENABLING THE MEMBER STATES AND THE COMMISSION TO DEVELOP , AND LINK UP TO THEIR MUTUAL ADVANTAGE , INFORMATIC SYSTEMS FOR THE PROCESSING OF DATA ON IMPORTS/EXPORTS AND ON THE MANAGEMENT AND FINANCIAL CONTROL OF AGRICULTURAL MARKET ORGANIZATIONS . THE STUDY IS SCHEDULED TO LAST 18 MONTHS . 1 . BACKGROUND THE MEMBER STATES AND THE COMMISSION EXCHANGE LARGE VOLUMES OF DATA RELATING TO IMPORTS AND EXPORTS AND TO CERTAIN AGRICULTURAL TRANSACTIONS . SOME OF THESE DATA , SUCH AS AGRICULTURAL PRICES , LEVY RATES , IMPORTS UNDER QUOTAS ETC ., ARE URGENTLY REQUIRED FOR THE PURPOSES OF APPLYING THE COMMUNITY ' S AGRICULTURAL AND COMMERCIAL POLICIES . OTHER DATA , SUCH AS THE COMMON CUSTOMS TARIFF NOMENCLATURE AND FOREIGN TRADE STATISTICS , ARE OF A MORE ROUTINE NATURE . LARGE QUANTITIES OF INFORMATION NECESSARY FOR THE ADMINISTRATION OF THE CUSTOMS UNION AND THE COMMON AGRICULTURAL POLICY ARE CURRENTLY EXCHANGED BY LETTERS OR TELEXES WHICH , ON RECEIPT IN THE MEMBER STATES , IN MOST CASES REQUIRE CONVERSION INTO YET ANOTHER FORM SUITABLE FOR INPUT INTO LOCAL COMPUTERS . THE COMMUNITY AS A WHOLE COULD MAKE USEFUL SAVINGS IF ADVANCED DATA PROCESSING AND TRANSMISSION METHODS COULD BE USED IN A COORDINATED MANNER IN THE COMMISSION AND THE MEMBER STATES . MOREOVER , ESSENTIAL INFORMATION ON AGRICULTURAL IMPORTS AND EXPORTS AND ON AGRICULTURE IS NEVER AVAILABLE IN TIME OR IN THE RIGHT FORM TO ALLOW URGENT AND IMPORTANT COMMUNITY POLICY DECISIONS TO BE TAKEN . FRAUD CONTROL IS ANOTHER IMPORTANT AREA THAT REQUIRES TIMELY INFORMATION FOR EFFECTIVE DETECTION . THE MAJORITY OF THE MEMBER STATES ARE MAKING RAPID PROGRESS IN THE DEVELOPMENT OF INFORMATIC SYSTEMS , SOME OF WHICH ARE VERY ADVANCED , TO MEET THE PROCESSING REQUIREMENTS OF THEIR CUSTOMS AND STATISTICAL ADMINISTRATIONS . SOME MEMBER STATES ARE ALSO LOOKING INTO THE POSSIBILITY OF USING COMPUTERS MORE WIDELY IN THE AGRICULTURAL SECTOR . MOST MEMBER STATES HAVE EXPRESSED AN INTEREST IN EXPLORING THE POSSIBILITY OF USING MORE ADVANCED DATA PROCESSING AND TRANSMISSION TECHNIQUES FOR EXCHANGING INFORMATION WITH THE COMMISSION . SOME MEMBER STATES ARE ALSO INTERESTED IN THE DIRECT EXCHANGE OF CERTAIN STANDARD TYPES OF IMPORT/EXPORT DATA BY INFORMATIC METHODS . THE COMMISSION IS UNDER AN OBLIGATION TO ORGANIZE ITS OWN INFORMATIC METHODS IN SUCH A WAY AS TO PROVIDE AN EFFICIENT SERVICE SUITED NOT ONLY TO ITS OWN PURPOSES BUT ALSO TO THOSE OF THE MEMBER STATES AND , AS FAR AS POSSIBLE , COMPATIBLE WITH THE VARIOUS SYSTEMS USED BY MEMBER STATES . ADMINISTRATIVE , BUSINESS AND POLITICAL CIRCLES ARE VERY INTERESTED IN THE SIMPLIFICATION OF IMPORT/EXPORT PROCEDURES . MEMBER STATES AND THE COMMISSION WILL CONTINUE TO WANT TO DEVELOP THEIR OWN , INDEPENDENT INFORMATIC SYSTEMS IN THE FORESEEABLE FUTURE . THESE DEVELOPMENTS CANNOT REASONABLY BE DELAYED BUT AN OVERALL COMMUNITY FRAMEWORK IS URGENTLY REQUIRED SO THAT COMMUNITY REQUIREMENTS CAN BE FITTED INTO THE NEW SYSTEMS AS THEY ARE DESIGNED . 2 . WORK DONE BY THE COMMISSION IN THE LIGHT OF THE SITUATION OUTLINED ABOVE THE COMMISSION ASKED INDEPENDENT CONSULTANTS TO CONDUCT TWO INTERRELATED PRELIMINARY SURVEYS . THE FIRST WAS DESIGNED TO OUTLINE STRATEGIES FOR THE DEVELOPMENT OF COMMUNITY IMPORT/EXPORT INFORMATION SYSTEMS AND THE SECOND , MORE SPECIFICALLY , TO EXPLORE HOW COMPUTERS MIGHT BE USED MORE EFFICIENTLY IN THE APPLICATION , MANAGEMENT AND FINANCIAL CONTROL OF THE COMMON AGRICULTURAL POLICY . THESE SURVEYS CONFIRMED THE URGENT NEED FOR A COMMUNITY FRAMEWORK FOR THE DEVELOPMENT OF INFORMATIC SYSTEMS FOR IMPORTS/EXPORTS AND AGRICULTURE AND INDICATE IN SOME DETAIL THE STEPS REQUIRED TO DEVELOP THIS FRAMEWORK , AS WELL AS A NUMBER OF SHORT- AND MEDIUM-TERM IMPROVEMENTS WHICH SHOULD BE MADE . 3 . FURTHER ACTION REQUIRED THE NEED TO DEVELOP SYSTEMS TO MEET SHORT- AND MEDIUM-TERM NEEDS IS SO GREAT THAT DEVELOPMENT WORK BY THE MEMBER STATES AND THE COMMISSION ON DATA AND INFORMATION CONCERNING IMPORTS/EXPORTS , AND ON THE MANAGEMENT AND FINANCIAL CONTROL OF THE AGRICULTURAL MARKET ORGANIZATIONS , NEEDS TO BE PUSHED AHEAD AS RAPIDLY AS POSSIBLE . IT IS ENVISAGED THEREFORE THAT SHORT- AND MEDIUM-TERM MEASURES WILL BE TAKEN WHERE APPROPRIATE . TO MEET LONGER-TERM NEEDS , AND IN ORDER TO ESTABLISH A COMMUNITY FRAMEWORK FOR THE DEVELOPMENT OF COORDINATED AND COMPATIBLE SYSTEMS , IT WILL ALSO BE NECESSARY TO CARRY OUT A DETAILED STUDY OF THE MAJOR REQUIREMENTS OF THE MEMBER STATES AND THE COMMISSION . THE SCALE AND TECHNICAL CHARACTER OF THIS WORK ARE SUCH THAT THE NORMAL COMMUNITY COMMITTEE MACHINERY NEEDS TO BE SUPPLEMENTED BY A STUDY ALONG THE LINES OUTLINED ABOVE . THE RESULTS OF THE PRELIMINARY SURVEYS WILL HELP TO ORIENTATE THE IN-DEPTH STUDY . **** II . CONTENT OF THE PROJECT USING THE INFORMATION GATHERED DURING THE PRELIMINARY SURVEYS AS A BASIS , AND TAKING ACCOUNT OF THE FACT THAT THE COMMISSION IS CURRENTLY LOOKING INTO THE POSSIBILITY OF APPLYING INFORMATIC SYSTEMS TO THE MANAGEMENT AND FINANCIAL CONTROL OF AGRICULTURAL MARKET ORGANIZATIONS , THE LONG-TERM IN-DEPTH STUDY WILL HAVE THE FOLLOWING OBJECTIVES : - TO EXPLORE THE EXTENT TO WHICH IMPORT-EXPORT SYSTEMS AND INFORMATIC SYSTEMS FOR THE MANAGEMENT OF THE AGRICULTURAL MARKET ORGANIZATIONS WHICH ARE UNDER DEVELOPMENT BY THE MEMBER STATES AND THE COMMISSION CAN APPROPRIATELY BE INTERLINKED TO THEIR MUTUAL ADVANTAGE , - TO ASSESS THE SCOPE FOR , AND ADVANTAGES OR DISADVANTAGES OF DEFINING AT COMMUNITY LEVEL STANDARDS AND CODES FOR THE EXCHANGE OF DATA BETWEEN THE DEPARTMENTS CONCERNED OF THE MEMBER STATES ON THE ONE HAND AND IMPORTERS , EXPORTERS AND OTHERS CONCERNED ON THE OTHER HAND , - TO EXAMINE THE UTILITY OF OTHER COOPERATIVE PROJECTS . THE PROJECT WOULD INVOLVE THE STUDY BY EACH MEMBER STATE AND THE COMMISSION OF THE FOLLOWING FIELDS IN EACH MEMBER STATE AND THE COMMISSION IN THE ORDER OF PRIORITY SET OUT BELOW , TAKING ACCOUNT OF THE MEANS AVAILABLE . DETAILED TECHNICAL SPECIFICATIONS FOR THE STUDY WILL BE WORKED OUT LATER IN CONSULTATION WITH THE TECHNICAL COMMITTEE OF USERS AND THE PROJECT LEADER . PRECISE REQUIREMENTS IN RESPECT OF THE MANAGEMENT OF THE AGRICULTURAL MARKET ORGANIZATIONS WILL BE SPECIFIED IN THE LIGHT OF PROGRESS MADE IN THE WORK NOW IN HAND . PRIORITY 1 : EXCHANGE OF INFORMATION BETWEEN THE MEMBER STATES AND THE COMMISSION . PRIORITY 2 : INVENTORY OF THE BASIC FUNCTIONS OR SUBSYSTEMS OF THE INFORMATIC SYSTEMS UTILIZED OR PLANNED BY THE MEMBER STATES AND THE COMMISSION ( SUCH FUNCTIONS WILL INCLUDE , FOR EXAMPLE , CURRENCY CONVERSION , CONTROL OF TARIFF QUOTAS , ETC .). THE STUDY MUST TAKE ACCOUNT OF DIFFERENCES BETWEEN SYSTEMS FOR TRADE BETWEEN THE MEMBER STATES AND TRADE WITH THIRD COUNTRIES . PRIORITY 3 : DATA SUITABLE FOR EXCHANGE WITH THIRD COUNTRIES AND OTHER PARTIES ( AIRLINES , IMPORTERS ETC .) AND INTERFACE TECHNIQUES INVOLVED . PRIORITY 4 : INFORMATION EXCHANGES BETWEEN THE RELEVANT DEPARTMENTS OF THE MEMBER STATES . PRIORITY 5 : POSSIBILITIES OF UTILIZING INFORMATIC SYSTEMS IN THE MANAGEMENT AND FINANCIAL CONTROL OF AGRICULTURAL MARKET ORGANIZATIONS ( IN SO FAR AS THEY ARE NOT COVERED BY THE ABOVE FIELDS OF STUDY ). IN THE LIGHT OF THE ABOVE WORK , POSSIBILITIES OF OTHER COOPERATIVE PROJECTS TO IMPROVE THE EFFICIENCY OF SYSTEMS AND TO REDUCE UTILIZATION AND DEVELOPMENT COSTS WOULD BE EXAMINED . WHERE APPROPRIATE , THE REPORT TO BE DRAWN UP SHOULD INCLUDE THE FOLLOWING : - CONTENT , TIMING AND VOLUMES OF INPUT AND OUTPUT , - TYPE AND CONTENT OF FILES , - PROCESSING , - COMMUNICATIONS , - INTERFACES/LINKS , - REQUIREMENTS REGARDING RELIABILITY , SECURITY , AVAILABILITY AND FLEXIBILITY , - AUDIT , - CODES AND STANDARDS , - RECOMMENDED ACTION , INCLUDING ALTERNATIVE STRATEGIES AND PRIORITIES , - COSTS , BENEFITS AND OTHER IMPLICATIONS , - ANY OTHER CONSIDERATION WITHIN THE FRAMEWORK AND ALONG THE LINES OF THE STUDY WHICH THE TECHNICAL COMMITTEE OF USERS MAY PROPOSE BE ADDED ON THE BASIS OF THE PRELIMINARY STUDIES AND PROGRESS MADE IN THE WORK , OF ITS EXPERIENCE ( IN PARTICULAR OF ANY SHORT- AND MEDIUM-TERM ACTION TO BE TAKEN AS A RESULT OF THESE STUDIES ), AND OF COMMUNITY REQUIREMENTS . |
EXHIBIT 3.1.9 BYLAWS OF PHYSICIANS HEALTHCARE MANAGEMENT GROUP, INC. 1 REVISED BYLAWS of PHYSICIANS HEALTHCARE MANAGEMENT GROUP, INC. A Nevada Corporation ARTICLE I – OFFICES SECTION 1. PRINCIPAL EXECUTIVE OFFICE. The principal office of the Corporation is hereby fixed at 700 South Royal Poinciana Boulevard, Suite 506, City of Miami, in the State of Florida 33166. SECTION 2. OTHER OFFICES. Its registered office in the State of Nevada is located at the Corporation Trust Company of Nevada, 6100 Neil Road, Suite 500, Reno, NV 89511. Branch or subordinate offices may be established by the Board of Directors at such other places as may be desirable. ARTICLE II - SHAREHOLDERS SECTION 1. PLACE OF MEETING. Meetings of shareholder's shall be held either at the principal executive office of the corporation or at any other location within or without the State of Nevada which may be designated by written consent of all persons entitled to vote thereat. SECTION 2. ANNUAL MEETINGS, The annual meeting of Shareholders shall be held on such day and at such time as may be fixed by the Board; provided, however, that should said day fall upon a Saturday, Sunday, or legal holiday observed by the Corporation at its principal executive office, than any such meeting of shareholders shall be held at the same time and place on the next day thereafter ensuing which is a full business day. At such meetings, directors shall be elected by plurality vote and any other proper business may be transacted. SECTION 3. SPECIAL MEETINGS. Special meetings of the shareholders may be called for any purpose or purposes permitted under Chapter 78 of Nevada Revised Statutes at any time by the Board, the Chairman of the Board, the President, or by the shareholders entitled to cast not less than twenty-five percent (25%) of the votes at such meeting. Upon request in writing to the Chairman of the Board, the President, any Vice President or the Secretary, by any person or persons entitled to call a special meeting of shareholders, the Secretary shall cause notice to be given to the shareholders entitled to vote, that a special meeting will be held not less than thirty-five (35) nor more than sixty (60) days after the date of the notice. SECTION 4. NOTICE OF ANNUAL OR SPECIAL MEETING. Written notice of each annual meeting of shareholders shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each shareholder entitled to vote thereat. Such notice shall state the place, date and hour of the meeting and (i) in the case of a special meeting the general nature of the business to be transacted, or (ii) in the case of the annual meeting, those matters which the Nard, at the time of the mailing of the notice, intends to present for action by the shareholders, but, any proper matter may be presented at the meeting for such action. The notice of any meeting at which directors are to be elected shall include the names of the nominees intended, at the time of the notice, to be presented by management for election. 2 Notice of a shareholders' meeting shall be given either personally or by mail or, addressed to the shareholder at the address of such shareholder appearing on the books of the corporation or, if no such address appears or is given, by publication at least once in a newspaper of general circulation in Clark County, Nevada. An affidavit of mailing of any notice, executed by the Secretary, shall be prima facie evidence of the giving of the notice. SECTION 5. QUORUM. A majority of the shares entitled to vote, represented in person or by proxy, shall constitute a quorum at any meeting of shareholders. If a quorum is present, the affirmative vote of the majority of shareholders represented and voting at the meeting on any matter, shall be the act of the shareholders. The shareholders present at a duly called or held meeting at which a quorum is present may continue to do business until adjournment, notwithstanding withdrawal of enough shareholders to leave less than a quorum, if any action taken (other than adjournment) is approved by at least a majority of the number of shares required as noted above to constitute a quorum. Notwithstanding the foregoing, (1) the sale, transfer and other disposition of substantially all of the corporation's properties and (2) a merger or consolidation of the corporation shall require the approval by an affirmative vote of not less than two-thirds (2/3) of the corporation's issued and outstanding shares. SECTION 6. ADJOURNED NOTICE AND MEETING THEREOF. Any shareholders meeting, whether or not a quorum is present, may be adjourned from time to time. In the absence of a quorum (except as provided in Section 5 of this Article), no other business may be transacted at such meeting. It shall not be necessary to give any notice of the time and place of the adjourned meeting or of the business to be transacted thereat, other than by announcement at the meeting at which such adjournment is taken; provided, however when a shareholders meeting is adjourned for more than forty-five (45) days or, if after adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given as in the case of an original meeting. SECTION 7. VOTING. The shareholders entitled to notice of any meeting or to vote at such meeting shall be only persons in whose name shares stand on the stock records of the corporation on the record date determined in accordance with Section 8 of this Article. SECTION 8. RECORD DATE. — The Board may fix, in advance, a record date for the determination of the shareholders entitled to notice of a meeting or to vote or entitled to receive payment of any dividend or other distribution, or any allotment of rights, or to exercise rights in respect to any other lawful action. The record date so fixed shall be not more than sixty (60) nor less than ten (10) days prior to the date of the meeting nor more than sixty (60) days prior to any other action. When a record date is so fixed, only shareholders of record on that date are entitled to notice of and to vote at the meeting or to receive the dividend, distribution, or allotment of rights, or to exercise of the rights, as the case may be, notwithstanding any transfer of shares on the books of the corporation after the record date. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting unless the Board fixes a new record date for themeeting. The Board shall fix a new record date if the meeting is adjourned for more than forty-five (45) days. 3 If no record date is fixed by the Board, the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be the close of business on the business day next preceding the day on which notice is given or, if notice is waived, at the close of business on the business day next preceding the day on which notice is given. The record date for determining shareholders for any purpose other than as set in this Section 8 or Section 10 of this Article shall be at the close of the day on which the Board adopts the resolution relating thereto, or the sixteenth day prior to the date of such other action, whichever is later. SECTION 9. CONSENT OF ABSENTEES. The transactions of any meeting of shareholders, however called and noticed, and wherever held, are as valid as though had at a meeting duly held after regular call and notice, if a quorum is present either in person or by proxy, and if, either before or after the meeting, each of the persons entitled to vote not present in person or by proxy, signs a written waiver of notice, or a consent to the holding of the meeting or an approval of the minutes thereof. All such waivers, consents or approvals shall be filed with the corporate records or made a part of the minutes of the meeting. SECTION 10. ACTION WITHOUT MEETING. Any action which, under any provision of law, may be taken at any annual or special meeting of shareholders, may be taken without a meeting and without prior notice if a consent in writing, setting forth the actions to be taken, shall be signed by the holders of outstanding shares having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Unless a record date for voting purposes is fixed as provided in Section 8 of this Article, the record date for determining shareholders entitled to give consent pursuant to this Section 1 when no prior action by the Board has been taken, shall be the day on which the first written consent is given. SECTION 11. PROXIES. Every person entitled to vote shares has the right to do so either in person or by one or more persons authorized by a written proxy executed by such shareholder and filed with the Secretary not less than five (5) days prior to the meeting. SECTION 12. CONDUCT OF MEETING. The President shall preside as Chairman at all meetings of the shareholders, unless another Chairman is selected. The Chairman shall conduct each such meeting in a businesslike and fair manner, but shall not be obligated to follow any technical, formal, or parliamentary rules or principles of procedure. The Chairman's ruling on procedural matters shall be conclusive and binding on all shareholders, unless at the time of ruling a request for a vote is made by the shareholders entitled to vote and represented in person or by proxy at the meeting, in which case the decision of a majority of such shares shall be conclusive and binding on all shareholders without limiting the generality of the foregoing, the Chairman shall have all the powers usually vested in the chairman of a meeting of shareholders. 4 ARTICLE III - DIRECTORS SECTION 1. POWERS. Subject to limitation of the Articles of Incorporation, of these bylaws, and of actions required to be approved by the shareholders, the business and affairs of the Corporation shall be managed and all corporate powers shall be exercised by or under the direction of the Board. The Board may, as permitted by law, delegate the management of the day-to-day operation of the business of the corporation to a management company or other persons or officers of the corporation provided that the business and affairs of the corporation shall be managed and all corporate powers shall be exercised under the ultimate direction of the Board. Without prejudice to such general powers, it is hereby expressly declared that the Board shall have the following powers: (a) To select and remove all of the officers, agents and employees of the corporation, prescribe the powers and duties for them as may not be inconsistent with law or with the Articles of Incorporation or by these bylaws, fix their compensation, and require from them, if necessary, security for faithful service. (b) To conduct, manage, and control the affairs and business of the Corporation and to make such rules and regulations therefore not inconsistent with law, with the Articles of Incorporation or these bylaws, as they may deem best. (c) To adopt, make and use a corporate seal, and to prescribe the forms of certificates of stock and to alter the form of such seal and such of certificates from time to time in their judgment they deem best. (d) To authorize the issuance of shares of stock of the corporation from time to time, upon such terms and for such consideration as may be lawful. (e) To borrow money and incur indebtedness for the purposes of the corporation, and to cause to be executed and delivered therefore, in the corporate name, promissory notes, bonds, debentures, deeds of trust, mortgages, pledges, hypothecation or other evidence if debt and securities therefore. SECTION 2. NUMBER OF DIRECTORS. The authorized number of directors shall be no more than seven until changed by amendment of the Articles or by a bylaw duly adopted by approval of the outstanding shares amending this Section 2. SECTION 3. ELECTION AND TERM OF OFFICE. The directors shall be elected at each annual meeting of shareholders but if any such annual meeting is not held or the directors are not elected thereat, the directors may be elected at any special meeting of shareholders held for that purpose. Each director shall hold office until the next annual meeting and until a successor has been elected and qualified. SECTION 4. CHAIRMAN OF THE BOARD. At the regular meeting of the Board, the first order of business will be to select, from its members, a Chairman of the Board whose duties will be to preside over all board meetings until the next annual meeting and until a successor has been chosen. SECTION 5. VACANCIES. Any director may resign effective upon giving written notice to the Chairman of the Board, the President, Secretary, or the Board, unless the notice specified a later time for the effectiveness of such resignation. If the resignation is effective at a future time, a successor may be elected to take office when the resignation becomes effective. 5 Vacancies in the Board including those existing as a result of a removal of a director, shall be filled by the shareholders at a special meeting, and each director so elected shall hold office until the next annual meeting and until such director's successor has been elected and qualified. A vacancy or vacancies in the Board shall be deemed to exist in case of the death, resignation or removal of any director or if the authorized number of directors be increased, or if the shareholders fail, at any annual or special meeting of shareholders at which any directors are elected, to elect the full authorized number of directors to be voted for the meeting. The Board may declare vacant the office of a director who has been declared of unsound mind or convicted of a felony by an order of court. The shareholders may elect a director or directors at any time to fill any vacancy or vacancies. Any such election by written consent requires the consent of a majority ofthe outstanding shares entitled to vote. If the Board accepts the resignation of a director tendered to take effect at a future time, the shareholder shall have power to elect a successor to take office when the resignation is to become effective. No reduction of the authorized number of directors shall have the effect of removing any director prior to the expiration of the director’s term of office. SECTION 6. PLACE OF MEETING. Any meeting of the Board shall be held at any place within or without the State of Nevada which has been designated from time to time by the Board. In the absence of such designation, meetings shall be held at the principal executive office of the corporation. SECTION 7. REGULAR MEETINGS. Immediately following each annual meeting of shareholders the Board shall hold a regular meeting for the purpose of organization, selection of a Chairman of the Board, election of officers, and the transaction of other business. Call and notice of such regular meeting is hereby dispensed with. SECTION 8. SPECIAL MEETINGS. Special meetings of the Board for any purpose may be called at any time by the Chairman of the Board, the President, or the Secretary or by any two directors. Special meetings of the Board shall be held upon at least four (4) days written notice or forty-eight (48) hours notice given personally or by telephone, telegraph, telex or other similar means of communication. Any such notice shall be addressed or delivered to each director at such director's address as it is shown upon the records of the Corporation or as may have been given to the Corporation by the director for the purposes of notice. SECTION 9. QUORUM A majority of the authorized number of directors constitutes a quorum of the Board for the transaction of business, except to adjourn as hereinafter provided. Every act or decision by a majority of the directors present at a meeting duly held at which a quorum is present shall be regarded as the act of the Board, unless a greater number be required by law or by the Articles of Incorporation. A meeting at which a quorum is initially present may continue to transact business notwithstanding the withdrawal of directors, if any action taken is approved by at least a majority of the number of directors required as noted above to constitute a quorum for such meeting. 6 SECTION 10. PARTICIPATION IN MEETINGS BY CONFERENCE TELEPHONE. Members of the Board may participate in a meeting through use of conference telephone or similar communications equipment, so long as all members participate in such meeting can hear one another. SECTION 11. WAIVER OF NOTICE. The transactions of any meeting of the Board, however called and noticed or wherever held, are as valid as though had at a meeting duly held after regular call and notice if a quorum be present and if, either before or after the meeting, each of the directors not present signs a written waiver of notice, a consent to holding such meeting or an approval of the minutes thereof. All such waivers, consents or approvals shall be filed with the corporate records or made part of the minutes of the meeting. SECTION 12. ADJOURNMENT. A majority of the directors present, whether or not a quorum is present, may adjourn any directors' meeting to another time and place. Notice of the time and place of holding an adjourned meeting need not be given to absent directors if the time and place be fixed at the meeting adjourned. If the meeting is adjourned for more than forty-eight (48) hours, notice of any adjournment to another time or place shall be given prior to the time of the adjourned meeting to the directors who were not present at the time of adjournment. SECTION 13. FEES AND COMPENSATION. Directors and members of committees may receive such compensation, if any, for their services, and such reimbursement for expenses, as may be fixed or determined by the Board. SECTION 14. ACTION WITHOUT MEETING. Any action required or permitted to be taken by the Board may be taken without a meeting if all members of the Board shall individually or collectively consent in writing to such action. Such consent or consents shall have the same effect as a unanimous vote of the Board and shall be filed with the minutes of the proceedings of the Board. SECTION 15. COMMITTEES. The board may appoint one or more committees, each consisting of two or more directors, and delegate to such committees any of the authority of the Board except with respect to: (a) The approval of any action which requires shareholders' approval or approval of the outstanding shares; (b) The filling of vacancies on the Board or on any committees; (c) The fixing of compensation of the directors for serving on the Board or on any committee; (d) The amendment or repeal of bylaws or the adoption of new bylaws; (e) The amendment or repeal of any resolution of the Board which by its express terms is not so amendable or repealable by a committee of the Board; (f) A distribution to the shareholders of the Corporation; (g) The appointment of other committees of the Board or members thereof. 7 Any such committee must be appointed by resolution adopted by a majority of the authorized number of directors and may be designated an Executive Committee or by such other name as the Board shall specify. The Board shall have the power to prescribe the manner in which proceedings of any such committee shall be conducted. Unless the Board or such committee shall otherwise provide, the regular or special meetings and other actions of any such committee shall be governed by the provisions of this Article applicable to meetings and actions of the Board. Minutes shall be kept of each meeting of each committee. ARTICLE IV - OFFICERS SECTION 1. OFFICERS. The officers of the Corporation shall be a president, a secretary and a treasurer. The Corporation may also have, at the discretion of the Board, one or more vice presidents, one or more assistant vice presidents, one or more assistant secretaries, one or more assistant treasurers and such other officers as may be elected or appointed in accordance with the provisions of Section 3 of this Article. SECTION 2. ELECTION, The Officers of the Corporation, except such officers as may be elected or appointed in accordance with the provisions of Section 3 or Section 5 of this Article, shall be chosen annually by, and shall serve at the pleasure of, the Board, and shall hold their respective offices until their resignation, removal or other disqualification from service, or until their respective successors shall be elected. SECTION 3. SUBORDINATE OFFICERS. The Board may elect, and may empower the President to appoint, such other officers as the business of the corporation may require, each of whom shall hold office for such period, have such authority, and perform such duties as are provided in these bylaws or as the Board, or the President may from time to time direct. SECTION 4. REMOVAL AND RESIGNATION, Any officer may be removed, either with or without cause, by the Board of Directors at any time, or, except in the case of an officer chosen by the Board, by any officer upon whom such power of removal may be conferred by the Board. Any officer may resign at any time by giving written notice to the corporation. Any such resignation shall take effect at the date of the receipt of such notice or at any later time specified therein. The acceptance of such resignation shall be necessary to make it effective. SECTION 5. VACANCIES. A vacancy of any office because of death, resignation, removal, disqualification, or any other cause shall be filled in the manner prescribed by these bylaws for the regular election or appointment to such office. SECTION 6. PRESIDENT. The President shall be the Chief Executive Officer and General Manager of the Corporation. The President shall preside at all meetings of the shareholders and, in the absence of the Chairman of the Board at all meetings of the Board. The President has the general powers and duties of management usually vested in the chief executive officer and the general manager of a corporation and such other powers and duties as may be prescribed by the Board. 8 SECTION 7. VICE PRESIDENTS. In the absence or disability of the President, the Vice Presidents in order of their rank as fixed by the Board or, if not ranked, the Vice President designated by the Board, shall perform all the duties of the President, and when so acting shall have all the powers of, and be subject to all the restrictions upon the President. The Vice Presidents shall have such other powers and perform such other duties as from time to time may be prescribed for them respectively by the President or the Board. SECTION 8. SECRETARY. The Secretary shall keep or cause to be kept, at the principal executive offices and such other places as the Board may order, a book of minutes of all meetings of shareholders, the Board, and its committees, with the time and place of holding, whether regular or special, and, if special, how authorized, the notice thereof given, the names of those present at Board and committee meetings, the number of shares present or represented at shareholders' meetings, and proceedings thereof. The Secretary shall keep, or cause to be kept, a copy of the bylaws of the Corporation at the principal executive office of the Corporation. The Secretary shall keep, or cause to be kept, at the principal executive office, a share register, or a duplicate share register, showing the names of the shareholders and their addresses, the number and classes of shares held by each, the number and date of certificates issued for the same, and the number and date of cancellation of every certificate surrendered for cancellation. The Secretary shall give, or cause to be given, notice of all the meetings of the shareholders and of the Board and any committees thereof required by these bylaws or bylaw to be given, shall keep the seal of the Corporation in safe custody, and shall have such other powers and perform such other duties as may be prescribed by the Board. SECTION 9. TREASURER. The Treasurer is the Chief Financial Officer of the Corporation and shall keep and maintain, or cause to be kept and maintained, adequate and correct accounts of the properties and financial transactions of the Corporation, and shall send or cause to be sent to the shareholders of the Corporation such financial statements and reports as are by law or these bylaws required to be sent to them. The Treasurer shall deposit all monies and other valuables in the name and to the credit of the Corporation with such depositories as may be designated by the Board. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board, shall render to the President and Directors, whenever they request it, an account of all transactions as Treasurer and of the financial conditions of the corporation, and shall have such other powers and perform such other duties as may be prescribed by the Board. SECTION 10. AGENTS. The President, any Vice President, the Secretary or Treasurer may appoint agents with power and authority, as defined or limited in their appointment, for and on behalf of the Corporation to execute and deliver, and affix the seal of the Corporation thereto, to bonds, undertakings, recognizance, consents of surety or other written obligations in the nature thereof and any said officers may remove any such agent and revoke the power and authority given to him. 9 ARTICLE V – OTHER PROVISIONS SECTION 1. DIVIDENDS. The Board may from time to time declare, and the Corporation may pay, dividends on its outstanding shares in the manner and on the terms and conditions provided by law, subject to any contractual restrictions on which the Corporation is then subject. SECTION 2. INSPECTION OF BYLAWS. The Corporation shall keep in its Principal executive office the original or a copy of these bylaws as amended to date which shall be open to inspection to shareholders at all reasonable times during office hours. If the principal executive office of the Corporation is outside the State of Nevada and the Corporation has no principal business office in such State, it shall upon the written notice of any shareholder furnish to such shareholder a copy of these bylaws as amended to date. SECTION 3. REPRESENTATION OF SHARES OF OTHER CORPORATIONS. The President or any other officer or officers authorized by the Board or the President are each authorized to vote, represent, and exercise on behalf of the Corporation all rights incident to any and all shares of any other corporation or corporations standing in the name of the Corporation. The authority herein granted may be exercised either by any such officer in person or by any other person authorized to do so by proxy or power of attorney duly executed by said officer. ARTICLE VI - INDEMNIFICATION SECTION 1. INDEMNIFICATION IN ACTIONS BY THIRD PARTIES. Subject to the limitations of law, if any, the Corporation shall have the power to indemnify any director, officer, employee and agent of the Corporation who was or is a party or is threatened to be made a party to any proceeding (other than an action by or in the right of to procure a judgment in its favor) against expenses, judgments, fines, settlements and other amounts actually and reasonably incurred in connection with such proceeding, provided that the Board shall find that the director, officer, employee or agent acted in good faith and in a manner which such person reasonably believed in the best interests of the Corporation and, in the case of criminal proceedings, had no reasonable cause to believe the conduct was unlawful. The termination of any proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere shall not, of itself, create a presumption that such person did not act in good faith and in a manner which the person reasonably believed to be in the best interests of the corporation or that such person had reasonable cause to believe such person's conduct was unlawful. SECTION 2. INDEMNIFICATION IN ACTIONS BY OR ON BEHALF OF THE CORPORATION. Subject to the limitations of law, if any, the Corporation shall have the power to indemnify any director, officer, employee and agent of the Corporation who was or is threatened to be made a party to any threatened, pending or completed legal action by or in the right of the Corporation to procure a judgment in its favor, against expenses actually and reasonably incurred by such person in connection with the defense or settlement, if the Board of Directors determine that such person acted in good faith, in a manner such person believed to be in the best interests of the Corporation and with such care, including reasonable inquiry, as an ordinarily prudent person would use under similar circumstances. 10 SECTION 3. ADVANCE OF EXPENSES. Expenses incurred in defending any proceeding may be advanced by the Corporation prior to the final disposition of such proceeding upon receipt of an undertaking by or on behalf of the officer, director, employee or agent to repay such amount unless it shall be determined ultimately that the officer or director is entitled to be indemnified as authorized by this Article. SECTION 4. INSURANCE. The Corporation shall have power to purchase and maintain insurance on behalf of any officer, director, employee or agent of the Corporation against any liability asserted against or incurred by the officer, director, employee or agent in such capacity or arising out of such person's status as such whether or not the corporation would have the power to indemnify the officer, or director, employee or agent against such liability under the provisions of this Article. ARTICLE VII - AMENDMENTS These bylaws may be altered, amended or repealed either by approval of a majority of the outstanding shares entitled to vote or by the approval of the Board. 11
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UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of Report (Date of earliest event reported): April 21, 2008 BROADPOINT SECURITIES GROUP, INC. (Exact name of registrant as specified in its charter) New York (State or other jurisdiction of incorporation) 0-14140 (Commission File Number) 22-2655804 (IRS Employer Identification No.) One Penn Plaza New York, New York (Address of Principal Executive Offices) 10119 (Zip Code) (212)273-7100 (Registrant’s telephone number, including area code) Not Applicable (Former name or former address, if changed since last report) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions: o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) PAGE 1 OF 3 Item 1.01.Entry into a Material Definitive Agreement. Fully Disclosed Clearing Agreement On April 21, 2008, Broadpoint Securities, Inc., a wholly-owned broker-dealer subsidiary of the Registrant (“Broadpoint Securities”), entered into a Fully Disclosed Clearing Agreement (the “Pershing Clearing Agreement”) with Pershing LLC (“Pershing”) whereby Pershing agreed to provide certain execution and clearing services, on a fully disclosed basis, to Broadpoint Securities and its customers. Subject to the approval of the Financial Industry Regulatory Authority, the term of the Pershing Clearing Agreement commenced on April 21, 2008 and continues until its termination as provided for therein.The Pershing Clearing Agreement may be terminated by either party, including, but not limited to, without cause upon ninety days prior notice.The foregoing description of the Pershing Clearing Agreement is not complete and is qualified in its entirety by reference to the Pershing Clearing Agreement, a copy of which is filed as Exhibit 10.1 hereto and incorporated herein by reference. Item 9.01.Financial Statements and Exhibits. (d)Exhibits The following exhibit is furnished as part of this Current Report on Form 8-K: 10.1 – Fully Disclosed Clearing Agreement, by and between Broadpoint Securities, Inc. and Pershing LLC, dated April 21, 2008. PAGE 2 OF 3 SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. BROADPOINT SECURITIES GROUP, INC. By:/s/ROBERT I. TURNER Name:Robert I. Turner Title:Chief Financial Officer Dated: April 25, 2008 PAGE 3 OF 3
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Exhibit 3(ii) AMENDED BYLAWS OF ENERGIZER HOLDINGS, INC. Dated as of November 3, 2008 ARTICLE I - SHAREHOLDERS SECTION 1.ANNUAL MEETING:The annual meeting of shareholders shall be held at the principal office of the Company, or at such other place either within or without the State of Missouri as the Directors may from time to time determine, at 2:00 P.M. on the fourth Monday in January in each year, or such other time as may be determined by the Chairman of the Board, or if such day be a legal holiday then on the next succeeding business day, to elect Directors and transact such other business as may properly come before the meeting. SECTION 2.SPECIAL MEETINGS:Special meetings of shareholders may be called only by the affirmative vote of a majority of the entire Board of Directors or by the Chairman of the Board or the President by request for such a meeting in writing.Such request shall be delivered to the Secretary of the Company and shall state the purpose or purposes of the proposed meeting.Upon such direction or request, subject to any requirements or limitations imposed by the Company’s Articles of Incorporation, by these Bylaws, or by law, it shall be the duty of the Secretary to call a special meeting of the shareholders to be held at such time as is specified in the request.Only such business shall be conducted, and only such proposals shall be acted upon, as are specified in the call of any special meeting of shareholders, and each such meeting shall be held at such time, and at such place either within or without the State of Missouri, as may be specified in the notice thereof.As used in these Bylaws, the terms “entire Board of Directors” means the total number of Directors fixed by, or in accordance with, these Bylaws. SECTION 3.NOTICE. (a)Except as otherwise required by the laws of Missouri, notice of each meeting of the shareholders, whether annual or special, shall be given, except that (i) it shall not be necessary to give notice to any shareholder who properly waives notice before or after the meeting, whether in writing or by electronic transmission or otherwise, and (ii) no notice of an adjourned meeting need be given except when required under these Bylaws or by law. Such notice shall state the date, time and place, if any, of the meeting (and the means of remote communications, if any, by which shareholders and proxy holders may be deemed to be present in person at such meeting), and in the case of a special meeting, shall also state the purpose or purposes thereof. Except as otherwise required by law, each notice of a meeting shall be given in any manner permitted by law not less than 10 nor more than 70 days before the meeting and shall state the time and place of the meeting, and unless it is the annual meeting, shall state at whose direction or request the meeting is called and the purposes for which it is called. The attendance of any shareholder at a meeting, without protesting at the beginning of the meeting that the meeting is not lawfully called or convened, shall constitute a waiver of notice by such shareholder; and the requirement of notice may also be waived in accordance with Section 4(b) of Article 5 of these Bylaws. Any previously scheduled meeting of shareholders may be postponed, and (unless the Articles of Incorporation otherwise provide) any special meeting of shareholders may be canceled or postponed, by resolution of the Board of Directors upon public notice (as defined in Section 6 of Article I of these Bylaws) given on or prior to the date previously scheduled for such meeting of shareholders. (b)Without limiting the manner by which notice otherwise may be given effectively to shareholders, any notice to a shareholder given by the Company may be given by a form of electronic transmission consented to by the shareholder to whom the notice is given.Any such consent shall be revocable by the shareholder by written notice to the Company.Any such consent shall be deemed revoked (i) if the Company is unable to deliver by electronic transmission two consecutive notices given by the Company in accordance with such consent and (ii) such inability becomes known to the Secretary or an Assistant Secretary of the Company or to the transfer agent or other person responsible for the giving of notice; provided, however, the inadvertent failure to treat such inability as a revocation shall not invalidate any meeting or other action.For purposes of these Bylaws, “electronic transmission” means any form of communication, not directly involving the physical transmission of paper, that creates a record that may be retained, retrieved and reviewed by a recipient thereof, and that may be directly reproduced in paper form by such a recipient through an automated process. (c)Notice shall be deemed given, if mailed, when deposited in the United States mail with postage prepaid, if addressed to a shareholder at his or her address on the Company’s records. Notice given by electronic transmission shall be deemed given (i) if by facsimile, when directed to a number at which the shareholder has consented to receive notice; (ii) if by electronic mail, when directed to an electronic mail address at which the shareholder has consented to receive notice; (iii) if by posting on an electronic network together with separate notice to the shareholder of such specific posting, upon the later of (A) such posting and (B) the giving of such separate notice; and (iv) by any other form of electronic transmission, when directed to the shareholder. SECTION 4.QUORUM; VOTING:At any meeting of the shareholders, every holder of common stock shall be entitled to vote in person, by a telephonic voting system (including one established by a proxy solicitation firm, proxy support service organization or like agent), or by proxy appointed by a proper instrument in writing and subscribed by the shareholder or by his or her duly appointed attorney-in-fact.A shareholder may authorize another person or persons to act for him as proxy by transmitting or authorizing the transmission of a telegram, cablegram, or other means of electronic transmission to the person who will be the holder of the proxy or to a proxy solicitation firm, proxy support service organization or like agent duly authorized by the person who will be the holder of the proxy to receive such transmission, provided that any such telegram, cablegram or other means of electronic transmission must either set forth or be submitted with information from which it can be determined that the telegram, cablegram or other electronic transmission was authorized by the shareholder.Each shareholder shall have such voting power as is prescribed by the Articles of Incorporation with respect to the shares registered in his or her name on the books of the Company.At any meeting of shareholders, the holders of shares having a majority of the voting power entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum for all purposes.If, however, such quorum shall not be present or represented at any meeting of shareholders, the holders of shares having a majority of the outstanding voting power present and entitled to vote at any meeting may adjourn the same from time to time for successive periods of not more than ninety days after such adjournment, without notice other than announcement at the meeting, until a quorum shall be present or represented.At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the original meeting.If a quorum is present, the affirmative vote of the holders of shares constituting a majority of the voting power represented at the meeting shall be the act of the shareholders unless the vote of a greater number of shares is required by the Company’s Articles of Incorporation, by these Bylaws or by law. SECTION 5.CONDUCT OF MEETING: (a)Notwithstanding anything in these Bylaws to the contrary, no business shall be conducted at a meeting except in accordance with the requirements and procedures set forth in this Section 5.The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of shareholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the Chairman of any meeting of shareholders shall have the right and authority to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such chairman, are appropriate or convenient for the proper conduct of the meeting.
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Exhibit 4.4 WARRANT AGREEMENT THIS WARRANT AGREEMENT (this “Agreement”), dated as of [●], 2013, is by and between Quinpario Acquisition Corp., a Delaware corporation (the “Company”), and Continental Stock Transfer & Trust Company, a New York corporation, as warrant agent (the “Warrant Agent”). WHEREAS, the Company has entered into that certain Unit Subscription Agreement, dated , 2013, with Quinpario Partners I, LLC, a Delaware limited liability company (the “Sponsor”) pursuant to which the Sponsor (i) will purchase an aggregate of 1,150,000 Units (as defined below) for an aggregate purchase price of $11,500,000 (“Placement Units”), each Unit consisting of one share of Common Stock (as defined below) (“Placement Shares”) and one warrant to purchase one Placement Share (the “Placement Warrants”) of the Company, bearing the legend set forth in Exhibit B hereto, to be sold to the Sponsor simultaneously with the closing of the Offering (as defined below) and (ii) may purchase in its discretion (or that of its affiliates) up to two tranches of 112,500 extension units (“Extension Units”), each Extension Unit consisting of one share of Common Stock (“Extension Shares”) and one warrant to purchase an Extension Share (the “Extension Warrants”), on the same terms as the Placement Units, for an aggregate purchase price of $1,125,000 per tranche, in order to extend the time to consummate the Company’s initial business combination, as further described in the Prospectus (as defined below); WHEREAS, the Company is engaged in an initial public offering (the “Offering”) of units of the Company’s equity securities, each such unit comprised of one share of Common Stock and one Public Warrant (as defined below) (the “Public Units”, and together with the Placement Units, the “Units”) and, in connection therewith, has determined to issue and deliver up to 17,250,000 Warrants (including up to 2,250,000 warrants subject to a forty-five (45) day over-allotment option granted to the underwriters (the “Over allotment Option”)) to investors in the Offering (the “Public Warrants” and, together with the Placement Warrants and Extension Warrants (if any), the “Warrants”), each such Warrant evidencing the right of the holder thereof to purchase one share of common stock of the Company, $0.0001 par value per share (the “Common Stock”), for $12.00 per share, subject to adjustment as described herein; WHEREAS, the Company has filed with the Securities and Exchange Commission (the “Commission”) a registration statement on FormS-1, No.333-189432 (the “Registration Statement”) and prospectus (the “Prospectus”), for the registration, under the Securities Act of 1933, as amended (the “Securities Act”), of the Public Units, the Public Warrants and Common Stock included in the Public Units; WHEREAS, the Company desires the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing to so act, in connection with the issuance, registration, transfer, exchange, redemption and exercise of the Warrants; WHEREAS, the Company desires to provide for the form and provisions of the Warrants, the terms upon which they shall be issued and exercised, and the respective rights, limitation of rights, and immunities of the Company, the Warrant Agent, and the holders of the Warrants; and WHEREAS, all acts and things have been done and performed which are necessary to make the Warrants, when executed on behalf of the Company and countersigned by or on behalf of the Warrant Agent, as provided herein, the valid, binding and legal obligations of the Company, and to authorize the execution and delivery of this Agreement. NOW, THEREFORE, in consideration of the mutual agreements herein contained, the parties hereto agree as follows: 1. Appointment of Warrant Agent. The Company hereby appoints the Warrant Agent to act as agent for the Company for the Warrants, and the Warrant Agent hereby accepts such appointment and agrees to perform the same in accordance with the terms and conditions set forth in this Agreement. 2. Warrants. 2.1Form of Warrant. Each Warrant shall be issued in registered form only and shall be in substantially the form of ExhibitA hereto, the provisions of which are incorporated herein and shall be signed by, or bear the facsimile signature of, the Chairman of the Board, President, Chief Executive Officer, Chief Financial Officer, Secretary or other principal officer of the Company. In the event the person whose facsimile signature has been placed upon any Warrant shall have ceased to serve in the capacity in which such person signed the Warrant before such Warrant is issued, it may be issued with the same effect as if he or she had not ceased to be such at the date of issuance. 2.2 Effect of Countersignature. Unless and until countersigned by the Warrant Agent pursuant to this Agreement, a Warrant shall be invalid and of no effect and may not be exercised by the holder thereof. 2.3Registration. 2.3.1 Warrant Register. The Warrant Agent shall maintain books (the “Warrant Register”), for the registration of original issuance and the registration of transfer of the Warrants. Upon the initial issuance of the Warrants, the Warrant Agent shall issue and register the Warrants in the names of the respective holders thereof in such denominations and otherwise in accordance with instructions delivered to the Warrant Agent by the Company. 2.3.2 Registered Holder. Prior to due presentment for registration of transfer of any Warrant, the Company and the Warrant Agent may deem and treat the person in whose name such Warrant is registered in the Warrant Register (the “Registered Holder”) as the absolute owner of such Warrant and of each Warrant represented thereby (notwithstanding any notation of ownership or other writing on the Warrant Certificate (as defined below) made by anyone other than the Company or the Warrant Agent), for the purpose of any exercise thereof, and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary. 2 2.4Detachability of Warrants. The Common Stock and Public Warrants comprising the Public Units shall begin separate trading on the 52nd day following the date of the Prospectus, or, if such 52nd day is not on a Business Day (a “Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in New York City), then on the immediately succeeding Business Day following such date (the “Detachment Date” ) unless C&Co/PrinceRidge LLC, acting as representative of the Underwriters, informs the Company of its decision to allow earlier separate trading, but in no event shall the Common Stock and the Public Warrants comprising the Units be separately traded until(A) the Company has filed a Current Report on Form 8-K with the SEC containing an audited balance sheet reflecting its receipt of the gross proceeds of the Offering and (B)the Company issues a press release and files with the Commission a current report on Form 8-K announcing when such separate trading shall begin; provided, that, if the Over-allotment Option is exercised following the filing of the initial Current Report on Form 8-K, a second or amended Current Report on Form 8-K shall be filed by the Company to provide updated financial information to reflect the exercise of the Over-allotment Option. 2.5 Warrant Attributes. 2.5.1Placement Warrants and Extension Warrants. The Placement Warrants and Extension Warrants (if any) shall be identical to the Public Warrants, except that (i) so long as they are held by the Sponsor or any of its Permitted Transferees (as defined below), the Placement Warrants or Extension Warrants: (x)may be exercised for cash or on a cashless basis, pursuant to subsection 3.3.1(c) hereof, (y)may not be transferred, assigned or sold until thirty (30)days after the completion by the Company of an initial Business Combination (as defined below) (z)shall not be redeemable by the Company, provided, however, that in the case of the Placement Warrants and any Extension Warrants and any shares of Common Stock held by the Sponsor, and issued upon exercise of the Placement Warrants or any Extension Warrants may be transferred by the Sponsor: (a)as a gift to a member of Sponsor, their immediate family or to a trust, the beneficiary of which is a member of the Sponsor and their immediate family or to a charitable organization, (b)to the Company’s officers or directors, any affiliates or family members of any of the Company’s officers or directors, any member of Sponsor or any of their respective affiliates, (c)by virtue of the laws of descent and distribution upon death of one of the members of the Sponsor, (d)pursuant to a qualified domestic relations order, 3 (e)by virtue of the laws of the state of Delaware and the Sponsor’s limited liability company agreement upon dissolution of the Sponsor,, (f) in the event of the Company’s liquidation prior to the completion of the initial Business Combination, or (g)in the event that, subsequent to the consummation of the initial Business Combination, the Company consummates a merger, stock exchange or other similar transaction that results in (1) all of the holders of the Company’s equity securities issued in the Offering having the right to exchange their shares of Common Stock for cash, securities or other property or (2) involving a merger or other change in the majority of the Company’s board of directors or management team in which the Company is the surviving entity; provided, however, that, in the case of clauses (a)through (e), these transferees (the “Permitted Transferees”) enter into a written agreement with the Company agreeing to be bound by the transfer restrictions in this Agreement. 3.Terms and Exercise of Warrants. 3.1Warrant Price. Each Warrant shall, when countersigned by the Warrant Agent, entitle the Registered Holder thereof, subject to the provisions of such Warrant and of this Agreement, to purchase from the Company the number of shares of Common Stock stated therein, at the price of $12.00 per share, subject to the adjustments provided in Section4 hereof and in the last sentence of this Section3.1. The term “Warrant Price” as used in this Agreement shall mean the price per share at which a share of Common Stock may be purchased at the time a Warrant is exercised. The Company in its sole discretion may lower the Warrant Price at any time prior to the Expiration Date (as defined below) for a period of not less than twenty (20)Business Days, provided, that the Company shall provide at least twenty (20)days prior written notice of such reduction to Registered Holders of the Warrants and, provided further that any such reduction shall be identical among all of the Warrants. 3.2Duration of Warrants. A Warrant may be exercised only during the period (the “Exercise Period”) commencing on the later of: (i)the date that is thirty (30)days after the first date on which the Company completes an acquisition, through a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination with one or more businesses (a “Business Combination”), or (ii)the date that is twelve (12)months from the date of the closing of the Offering, and terminating at 5:00 p.m., New York City time on the date that is five (5)years after the date on which the Company completes its initial Business Combination, (y)the liquidation of the Company, or if the Company fails to consummate a Business Combination sixteen (16) months from the closing of the Offering (or up to 24 months, if extended as described in the Prospectus), or (z)other than with respect to the Placement Warrants and Extension Warrants, if any, the Redemption Date (as defined below) as provided in Section6.2 hereof (the “Expiration Date”); provided, however, that the exercise of any Warrant shall be subject to the satisfaction of any applicable conditions, as set forth in subsection 3.3.2 below with respect to an effective registration statement. Except with respect to the right to receive the Redemption Price (other than with respect to a Placement Warrant or Extension Warrant) in the event of a redemption (as set forth in Section6 hereof), each Warrant (other than a Placement Warrant or any Extension Warrant in the event of a redemption) not exercised on or before the Expiration Date shall become void, and all rights thereunder and all rights in respect thereof under this Agreement shall cease at 5:00 p.m. New York City time on the Expiration Date. The Company in its sole discretion may extend the duration of the Warrants by delaying the Expiration Date; provided, that the Company shall provide at least twenty (20)days prior written notice of any such extension to Registered Holders of the Warrants and, provided further that any such extension shall be identical in duration among all the Warrants. 4 3.3 Exercise of Warrants. 3.3.1Payment. Subject to the provisions of the Warrant and this Agreement, a Warrant, when countersigned by the Warrant Agent, may be exercised by the Registered Holder thereof by surrendering it, at the office of the Warrant Agent, or at the office of its successor as Warrant Agent, in the Borough of Manhattan, City and State of New York, with the subscription form, as set forth in the Warrant, duly executed, and by paying in full the Warrant Price for each full share of Common Stock as to which the Warrant is exercised and any and all applicable taxes due in connection with the exercise of the Warrant, the exchange of the Warrant for the shares of Common Stock and the issuance of such shares of Common Stock, as follows: (a)by wire transfer of immediately available funds in good certified check or good bank draft payable to the order of the Company; (b)in the event of a redemption pursuant to Section6 hereof in which the Company’s board of directors (the “Board”) has elected to require all holders of the Warrants to exercise such Warrants on a “cashless basis,” by surrendering the Warrants for that number of shares of Common Stock equal to the quotient obtained by dividing (x)the product of the number of shares of Common Stock underlying the Warrants, multiplied by the difference between the Warrant Price and the “Fair Market Value” (as defined in this subsection 3.3.1(b)) by (y)the Fair Market Value. Solely for purposes of this subsection 3.3.1(b) and Section6.3, the “Fair Market Value” shall mean the average last sale price of the shares of Common Stock for the ten (10)trading days ending on the third trading day prior to the date on which the notice of redemption is sent to the holders of the Warrants, pursuant to Section6 hereof; (c)with respect to any Placement Warrant or Extension Warrant exercised on a “cashless basis”, so long as such Placement Warrant or Extension Warrant is held by the Sponsor, or its Permitted Transferees, by surrendering the Warrants for that number of shares of Common Stock equal to the quotient obtained by dividing (x)the product of the number of shares of Common Stock underlying the Warrants, multiplied by the difference between the Warrant Price and the “Fair Market Value”, as defined in this subsection 3.3.1(c), by (y)the Fair Market Value. Solely for purposes of this subsection 3.3.1(c), the “Fair Market Value” shall mean the average last sale price of the Common Stock for the ten (10)trading days ending on the third trading day prior to the date on which notice of exercise of the Warrant is sent to the Warrant Agent; or (d)as provided in Section7.4 hereof. 5 3.3.2Issuance of Common Stock on Exercise. As soon as practicable after the exercise of any Warrant and the clearance of the funds in payment of the Warrant Price (if payment is pursuant to subsection 3.3.1(a)), the Company shall issue to the Registered Holder of such Warrant a certificate or certificates for the number of full shares of Common Stock to which he, she or it is entitled, registered in such name or names as may be directed by him, her or it, and if such Warrant shall not have been exercised in full, a new countersigned Warrant for the number of shares as to which such Warrant shall not have been exercised. Notwithstanding the foregoing, the Company shall not be obligated to deliver any Common Stock pursuant to the exercise of a Warrant and shall have no obligation to settle such Warrant exercise unless a registration statement under the Securities Act with respect to the Common Stock underlying the Public Warrants is then effective and a prospectus relating thereto is current, subject to the Company’s satisfying its obligations under Section7.4. No Warrant shall be exercisable and the Company shall not be obligated to issue Common Stock upon exercise of a Warrant unless the Common Stock issuable upon such Warrant exercise has been registered, qualified or deemed to be exempt under the securities laws of the state of residence of the Registered Holder of the Warrants. In the event that the conditions in the two immediately preceding sentences are not satisfied with respect to a Warrant, the holder of such Warrant shall not be entitled to exercise such Warrant and such Warrant may have no value and expire worthless, in which case the purchaser of a Unit containing such Public Warrants shall have paid the full purchase price for the Unit solely for the Common Stock underlying such Unit.In no event will the Company be required to net cash settle the Warrant exercise. 3.3.3 Valid Issuance. All Common Stock issued upon the proper exercise of a Warrant in conformity with this Agreement shall be validly issued, fully paid and nonassessable. 3.3.4 Date of Issuance. Each person in whose name any certificate for Common Stock is issued shall for all purposes be deemed to have become the holder of record of such Common Stock on the date on which the Warrant was surrendered and payment of the Warrant Price was made, irrespective of the date of delivery of such certificate, except that, if the date of such surrender and payment is a date when the share transfer books of the Company are closed, such person shall be deemed to have become the holder of such shares at the close of business on the next succeeding date on which the share transfer books are open. 3.3.5Maximum Percentage. A holder of a Warrant may notify the Company in writing in the event it elects to be subject to the provisions contained in this subsection 3.3.5; provided, however, that no holder of a Warrant shall be subject to this subsection 3.3.5 unless he, she or it makes such election. If the election is made by a holder, the Warrant Agent shall not effect the exercise of the holder’s Warrant, and such holder shall not have the right to exercise such Warrant, to the extent that after giving effect to such exercise, such person (together with such person’s affiliates), to the Warrant Agent’s actual knowledge, would beneficially own in excess of 9.8% (the “Maximum Percentage”) of the Common Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by such person and its affiliates shall include the number of shares of Common Stock issuable upon exercise of the Warrant with respect to which the determination of such sentence is being made, but shall exclude Common Stock that would be issuable upon (x)exercise of the remaining, unexercised portion of the Warrant beneficially owned by such person and its affiliates and (y)exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such person and its affiliates (including, without limitation, any convertible notes or convertible preferred stock or warrants) subject to a limitation on conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). For purposes of the Warrant, in determining the number of outstanding shares of Common Stock, the holder may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, current report on Form 8-K or other public filing with the Commission as the case may be, (2)a more recent public announcement by the Company, or (3) any other notice by the Company or Continental Stock Transfer & Trust Company (the “Transfer Agent”) setting forth the number of shares of Common Stock outstanding. For any reason at any time, upon the written request of the holder of the Warrant, the Company shall, within two (2)Business Days, confirm orally and in writing to such holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of equity securities of the Company by the holder and its affiliates since the date as of which such number of outstanding shares of Common Stock was reported. By written notice to the Company, the holder of a Warrant may from time to time increase or decrease the Maximum Percentage applicable to such holder to any other percentage specified in such notice; provided, however, that any such increase shall not be effective until the sixty-first (61st) day after such notice is delivered to the Company. 6 4. Adjustments. 4.1 Stock Dividends. 4.1.1Split-Ups. If after the date hereof, and subject to the provisions of Section4.6 below, the number of outstanding shares of Common Stock is increased by a stock dividend payable in Common Stock, or by a split-up of the Common Stock or other similar event, then, on the effective date of such stock dividend, split-up or similar event, the number of shares of Common Stock issuable on exercise of each Warrant shall be increased in proportion to such increase in the outstanding shares of Common Stock. A rights offering to holders of the Common Stock entitling holders to purchase Common Stock at a price less than the “Fair Market Value” (as defined below) shall be deemed a stock dividend of a number of shares of Common Stock equal to the product of (i)the number of shares of Common Stock actually sold in such rights offering (or issuable under any other equity securities sold in such rights offering that are convertible into or exercisable for the Common Stock) multiplied by (ii)one (1) minus the quotient of (x) the price per share of Common Stock paid in such rights offering divided by (y)the Fair Market Value. For purposes of this subsection 4.1.1, (i)if the rights offering is for securities convertible into or exercisable for Common Stock, in determining the price payable for Common Stock, there shall be taken into account any consideration received for such rights, as well as any additional amount payable upon exercise or conversion and (ii) “Fair Market Value” means, for purposes of this subsection 4.1.1 only, the volume weighted average price of the Common Stock as reported during the ten (10)trading day period ending on the trading day prior to the first date on which the Common Stock trades on the applicable exchange or in the applicable market, regular way, without the right to receive such rights. 7 4.1.2Extraordinary Dividends. If the Company, at any time while the Warrants are outstanding and unexpired, shall pay a dividend or make a distribution in cash, securities or other assets to the holders of the Common Stock on account of such Common Stock (or other shares of the Company’s capital stock into which the Warrants are convertible), other than (a)as described in subsection 4.1.1 above, (b)Ordinary Cash Dividends (as defined below), (c)to satisfy the redemption rights of the holders of the Common Stock in connection with a proposed initial Business Combination, (d)as a result of the repurchase of Common Stock by the Company if a proposed initial Business Combination is presented to the stockholders of the Company for approval or (e)in connection with the Company’s liquidation and the distribution of its assets upon its failure to consummate a Business Combination (any such non-excluded event being referred to herein as an “Extraordinary Dividend”), then the Warrant Price shall be decreased, effective immediately after the effective date of such Extraordinary Dividend, by the amount of cash and/or the fair market value (as determined by the Board, in good faith) of any securities or other assets paid on each share of Common Stock in respect of such Extraordinary Dividend. For purposes of this subsection 4.1.2, “Ordinary Cash Dividends”means any cash dividend or cash distribution which, when combined on a per share basis, with the per share amounts of all other cash dividends and cash distributions paid on the Common Stock during the 365-day period ending on the date of declaration of such dividend or distribution (as adjusted to appropriately reflect any of the events referred to in other subsections of this Section4 and excluding cash dividends or cash distributions that resulted in an adjustment to the Warrant Price or to the number of shares of Common Stock issuable on exercise of each Warrant) does not exceed $0.50 (being 5% of the offering price of the Units in the Offering). 4.2Aggregation of Shares. If after the date hereof, and subject to the provisions of Section4.6 hereof, the number of outstanding shares of Common Stock is decreased by a consolidation, combination, reverse stock split or reclassification of Common Stock or other similar event, then, on the effective date of such consolidation, combination, reverse stock split, reclassification or similar event, the number of shares of Common Stock issuable on exercise of each Warrant shall be decreased in proportion to such decrease in outstanding shares of Common Stock. 4.3Adjustments in Exercise Price. Whenever the number of shares of Common Stock purchasable upon the exercise of the Warrants is adjusted, as provided in subsection 4.1.1 or 4.2 above, the Warrant Price shall be adjusted (to the nearest cent) by multiplying such Warrant Price immediately prior to such adjustment by a fraction (x)the numerator of which shall be the number of shares of Common Stock purchasable upon the exercise of the Warrants immediately prior to such adjustment, and (y)the denominator of which shall be the number of shares of Common Stock so purchasable immediately thereafter. 8 4.4Replacement of Securities upon Reorganization, etc. In case of any reclassification or reorganization of the outstanding Common Stock (other than a change under subsections 4.1.1 or 4.1.2 or Section4.2 hereof or that solely affects the par value of such Common Stock), or in the case of any merger or consolidation of the Company with or into another corporation (other than a consolidation or merger in which the Company is the continuing corporation and that does not result in any reclassification or reorganization of the outstanding Common Stock), or in the case of any sale or conveyance to another corporation or entity of the assets or other property of the Company as an entirety or substantially as an entirety in connection with which the Company is dissolved, the holders of the Warrants shall thereafter have the right to purchase and receive, upon the basis and upon the terms and conditions specified in the Warrants and in lieu of the Common Stock of the Company immediately theretofore purchasable and receivable upon the exercise of the rights represented thereby, the kind and amount of shares of stock or other securities or property (including cash) receivable upon such reclassification, reorganization, merger or consolidation, or upon a dissolution following any such sale or transfer, that the holder of the Warrants would have received if such holder had exercised his, her or its Warrant(s) immediately prior to such event (the “Alternative Issuance”); provided, however, that (i)if the holders of the Common Stock were entitled to exercise a right of election as to the kind or amount of securities, cash or other assets receivable upon such consolidation or merger, then the kind and amount of securities, cash or other assets constituting the Alternative Issuance for which each Warrant shall become exercisable shall be deemed to be the weighted average of the kind and amount received per share by the holders of the Common Stock in such consolidation or merger that affirmatively make such election, and (ii)if a tender, exchange or redemption offer shall have been made to and accepted by the holders of the Common Stock (other than a tender, exchange or redemption offer made by the Company in connection with redemption rights held by stockholders of the Company as provided for in the Company’s certificate of incorporation or as a result of the repurchase of Common Stock by the Company if a proposed initial Business Combination is presented to the stockholders of the Company for approval) under circumstances in which, upon completion of such tender or exchange offer, the maker thereof, together with members of any group (within the meaning of Rule13d-5(b)(1) under the Exchange Act) of which such maker is a part, and together with any affiliate or associate of such maker (within the meaning of Rule12b-2 under the Exchange Act) and any members of any such group of which any such affiliate or associate is a part, own beneficially (within the meaning of Rule13d-3 under the Exchange Act) more than 50% of the outstanding Common Stock, the holder of a Warrant shall be entitled to receive as the Alternative Issuance, the highest amount of cash, securities or other property to which such holder would actually have been entitled as a stockholder if such Warrant holder had exercised the Warrant prior to the expiration of such tender or exchange offer, accepted such offer and all of the Common Stock held by such holder had been purchased pursuant to such tender or exchange offer, subject to adjustments (from and after the consummation of such tender or exchange offer) as nearly equivalent as possible to the adjustments provided for in thisSection4; provided further, however, that if more than 30% of the consideration receivable by the holders of the Common Stock in the applicable event is payable in the form of common stock in the successor entity that is not listed for trading on a national securities exchange or on the OTC Bulletin Board, or is not to be so listed for trading immediately following such event, then the Warrant Price shall be reduced by an amount (in dollars) equal to the quotient of (x) $18.00 (subject to adjustment in accordance with Section6.1 hereof) minus the Per Share Consideration (as defined below) (but in no event, less than zero), and (y) (A) if the applicable event is announced on or prior to the third anniversary of the closing date of the initial Business Combination, 2); (B) if the applicable event is announced after the third anniversary of the closing date of the initial Business Combination and on or prior to the fourth anniversary of the closing date of the initial Business Combination, 2.5); or (C) if the applicable event is announced after the fourth anniversary of the closing date of the initial Business Combination and on or prior to the Expiration Date, 3. “Per Share Consideration” means (1)if the consideration paid to holders of the Common Stock consists exclusively of cash, the amount of such cash per share of Common Stock, and (2)in all other cases, the volume weighted average price of the Common Stock as reported during the ten (10)trading day period ending on the trading day prior to the effective date of the applicable event. If any reclassification or reorganization also results in a change in the Common Stock covered by subsection 4.1.1, then such adjustment shall be made pursuant tosubsection 4.1.1 or Sections 4.2, 4.3 and this Section4.4. The provisions of this Section4.4 shall similarly apply to successive reclassifications, reorganizations, mergers or consolidations, sales or other transfers. 9 4.5Notices of Changes in Warrant. Upon every adjustment of the Warrant Price or the number of shares issuable upon exercise of a Warrant, the Company shall give written notice thereof to the Warrant Agent, which notice shall state the Warrant Price resulting from such adjustment and the increase or decrease, if any, in the number of shares purchasable at such price upon the exercise of a Warrant, setting forth in reasonable detail the method of calculation and the facts upon which such calculation is based. Upon the occurrence of any event specified in Sections 4.1, 4.2, 4.3 or 4.4, the Company shall give written notice of the occurrence of such event to each holder of a Warrant, at the last address set forth for such holder in the Warrant Register, of the record date or the effective date of the event. Failure to give such notice, or any defect therein, shall not affect the legality or validity of such event. 4.6No Fractional Shares. Notwithstanding any provision contained in this Agreement to the contrary, the Company shall not issue fractional shares upon exercise of Warrants. If, by reason of any adjustment made pursuant to this Section4, the holder of any Warrant would be entitled, upon the exercise of such Warrant, to receive a fractional interest in a share, the Company shall, upon such exercise, round up to the nearest whole number, the number of the shares of Common Stock to be issued to such holder. 4.7Form of Warrant. The form of Warrant need not be changed because of any adjustment pursuant to thisSection4, and Warrants issued after such adjustment may state the same Warrant Price and the same number of shares as is stated in the Warrants initially issued pursuant to this Agreement; provided, however, that the Company may at any time in its sole discretion make any change in the form of Warrant that the Company may deem appropriate and that does not affect the substance thereof, and any Warrant thereafter issued or countersigned, whether in exchange or substitution for an outstanding Warrant or otherwise, may be in the form as so changed. 4.8Other Events. In case any event shall occur affecting the Company as to which none of the provisions of preceding subsections of this Section4 are strictly applicable, but which would require an adjustment to the terms of the Warrants in order to (i)avoid an adverse impact on the Warrants and (ii)effectuate the intent and purpose of this Section4, then, in each such case, the Company shall appoint a firm of independent public accountants, investment banking or other appraisal firm of recognized national standing, which shall give its opinion as to whether or not any adjustment to the rights represented by the Warrants is necessary to effectuate the intent and purpose of this Section4 and, if they determine that an adjustment is necessary, the terms of such adjustment. The Company shall adjust the terms of the Warrants in a manner that is consistent with any adjustment recommended in such opinion. 10 5.Transfer and Exchange of Warrants. 5.1Registration of Transfer. The Warrant Agent shall register the transfer, from time to time, of any outstanding Warrant upon the Warrant Register, upon surrender of such Warrant for transfer, properly endorsed with signatures properly guaranteed and accompanied by appropriate instructions for transfer. Upon any such transfer, a new Warrant representing an equal aggregate number of Warrants shall be issued and the old Warrant shall be cancelled by the Warrant Agent. The Warrants so cancelled shall be delivered by the Warrant Agent to the Company from time to time upon request. 5.2Procedure for Surrender of Warrants. Warrants may be surrendered to the Warrant Agent, together with a written request for exchange or transfer, and thereupon the Warrant Agent shall issue in exchange therefor one or more new Warrants as requested by the Registered Holder of the Warrants so surrendered, representing an equal aggregate number of Warrants; provided, however, that in the event that a Warrant surrendered for transfer bears a restrictive legend (as in the case of the Placement Warrants or Extension Warrants), the Warrant Agent shall not cancel such Warrant and issue new Warrants in exchange thereof until the Warrant Agent has received an opinion of counsel for the Company stating that such transfer may be made and indicating whether the new Warrants must also bear a restrictive legend. 5.3Fractional Warrants. The Warrant Agent shall not be required to effect any registration of transfer or exchange which shall result in the issuance of a warrant certificate for a fraction of a warrant. 5.4Service Charges. No service charge shall be made for any exchange or registration of transfer of Warrants. 5.5Warrant Execution and Countersignature. The Warrant Agent is hereby authorized to countersign and to deliver, in accordance with the terms of this Agreement, the Warrants required to be issued pursuant to the provisions of this Section5, and the Company, whenever required by the Warrant Agent, shall supply the Warrant Agent with Warrants duly executed on behalf of the Company for such purpose. 5.6Transfer of Warrants. Prior to the Detachment Date, the Public Warrants may be transferred or exchanged only together with the Unit in which such Warrant is included, and only for the purpose of effecting, or in conjunction with, a transfer or exchange of such Unit. Furthermore, each transfer of a Unit on the register relating to such Units shall operate also to transfer the Warrants included in such Unit. Notwithstanding the foregoing, the provisions of this Section5.6 shall have no effect on any transfer of Warrants on and after the Detachment Date. 11 6. Redemption. 6.1Redemption. Subject to Section6.4 hereof, not less than all of the outstanding Warrants may be redeemed at the option of the Company, at any time while they are exercisable and prior to their expiration, at the office of the Warrant Agent, upon notice to the Registered Holders of the Warrants, as described in Section6.2 below, at the price of $0.01 per Warrant (the “Redemption Price”); provided, that the last sales price of the Common Stock reported has been at least $18.00 per share (subject to adjustment in compliance with Section 4 hereof), on each of twenty (20)trading days within the thirty (30)trading-day period ending on the third Business Day prior to the date on which notice of the redemption is given; and, provided further that there is an effective registration statement covering the Common Stock issuable upon exercise of the Warrants, and a current prospectus relating thereto, available throughout the 30-day Redemption Period (as defined in Section6.2 below). 6.2Date Fixed for, and Notice of, Redemption. In the event that the Company elects to redeem all of the Warrants, the Company shall fix a date for the redemption (the “Redemption Date”). Notice of redemption shall be mailed by first class mail, postage prepaid, by the Company not less than thirty (30)days prior to the Redemption Date (such 30-day period, the “Redemption Period”) to the Registered Holders of the Warrants to be redeemed at their last addresses as they shall appear on the registration books. Any notice mailed in the manner herein provided shall be conclusively presumed to have been duly given whether or not the Registered Holder received such notice. 6.3Exercise After Notice of Redemption. The Warrants may be exercised, for cash (or on a “cashless basis” in accordance with subsection 3.3.1(b) hereof) at any time after notice of redemption shall have been given by the Company pursuant to Section6.2 hereof and prior to the Redemption Date. In the event that the Company determines to require all holders of Warrants to exercise their Warrants on a “cashless basis” pursuant to subsection 3.3.1, the notice of redemption shall contain the information necessary to calculate the number of shares of Common Stock to be received upon exercise of the Warrants, including the “Fair Market Value” (as such term is defined in subsection 3.3.1(b) hereof) in such case. On and after the Redemption Date, the record holder of the Warrants shall have no further rights except to receive, upon surrender of the Warrants, the Redemption Price. 6.4Exclusion of Placement Warrants and Extension Warrants. The Company agrees that the redemption rights provided in this Section6 shall not apply to the Placement Warrants or any Extension Warrants if at the time of the redemption such Placement Warrants or Extension Warrants continue to be held by the Sponsor or its Permitted Transferees; provided, however, that once such Placement Warrants or Extension Warrants are transferred (other than to Permitted Transferees under subsection 2.5), the Company may redeem the Placement Warrants or any Extension Warrants, provided that the criteria for redemption are met, including the opportunity of the holder of such Placement Warrants or Extension Warrants to exercise the Placement Warrants or Extension Warrants prior to redemption pursuant to Section6.3. Placement Warrants and any Extension Warrants that are transferred to persons other than Permitted Transferees shall upon such transfer cease to be Placement Warrants or Extension Warrants and shall become Public Warrants under this Agreement. 12 7. Other Provisions Relating to Rights of Holders of Warrants. 7.1No Rights as Stockholder. A Warrant does not entitle the Registered Holder thereof to any of the rights of a stockholder of the Company, including, without limitation, the right to receive dividends, or other distributions, exercise any preemptive rights to vote or to consent or to receive notice as stockholders in respect of the meetings of stockholders or the election of directors of the Company or any other matter. 7.2Lost, Stolen, Mutilated, or Destroyed Warrants. If any Warrant is lost, stolen, mutilated, or destroyed, the Company and the Warrant Agent may on such terms as to indemnity or otherwise as they may in their discretion impose (which shall, in the case of a mutilated Warrant, include the surrender thereof), issue a new Warrant of like denomination, tenor, and date as the Warrant so lost, stolen, mutilated, or destroyed. Any such new Warrant shall constitute a substitute contractual obligation of the Company, whether or not the allegedly lost, stolen, mutilated, or destroyed Warrant shall be at any time enforceable by anyone. 7.3Reservation of Common Stock. The Company shall at all times reserve and keep available a number of its authorized but unissued Common Stock that shall be sufficient to permit the exercise in full of all outstanding Warrants issued pursuant to this Agreement. 7.4Registration of Common Stock. The Company agrees that as soon as practicable, but in no event later than fifteen (15)Business Days after the closing of its initial Business Combination, it shall use its best efforts to file with the Commission a post-effective amendment to the Registration Statement, or a new registration statement, for the registration, under the Securities Act, of the Common Stock issuable upon exercise of the Warrants, and it shall use its best efforts to take such action as is necessary to register or qualify for sale, in those states in which the Warrants were initially offered by the Company, the Common Stock issuable upon exercise of the Warrants, to the extent an exemption is not available. The Company shall use its best efforts to cause the same to become effective and to maintain the effectiveness of such registration statement, and a current prospectus relating thereto, until the expiration of the Warrants in accordance with the provisions of this Agreement. If any such post-effective amendment or registration statement has not been declared effective by the sixtieth (60th) Business Day following the closing of the Business Combination, holders of the Warrants shall have the right, during the period beginning on the sixty-first (61st) Business Day after the closing of the Business Combination and ending upon such post-effective amendment or registration statement being declared effective by the Commission, and during any other period when the Company shall fail to have maintained an effective registration statement covering the Common Stock issuable upon exercise of the Warrants, to exercise such Warrants on a “cashless basis,” by exchanging the Warrants (in accordance with Section3(a)(9) of the Securities Act or another exemption) for that number of shares of Common Stock equal to the quotient obtained by dividing (x)the product of the number of shares of Common Stock underlying the Warrants, multiplied by the difference between the Warrant Price and the “Fair Market Value” (as defined below) by (y)the Fair Market Value. Solely for purposes of this Section7.4, “Fair Market Value” shall mean the volume weighted average price of the Common Stock as reported during the ten (10)trading day period ending on the trading day prior to the date that notice of exercise is received by the Warrant Agent from the holder of such Warrants or its securities broker or intermediary. The date that notice of cashless exercise is received by the Warrant Agent shall be conclusively determined by the Warrant Agent. The Company shall provide the Warrant Agent with an opinion of counsel for the Company (which shall be an outside law firm with securities law experience) stating that (i)the exercise of the Warrants on a cashless basis in accordance with this Section7.4 is not required to be registered under the Securities Act and (ii)the Common Stock issued upon such exercise shall be freely tradable under United States federal securities laws by anyone who is not an affiliate (as such term is defined in Rule144 under the Securities Act) of the Company and, accordingly, shall not be required to bear a restrictive legend. For the avoidance of any doubt, unless and until all of the Warrants have been exercised on a cashless basis, the Company shall continue to be obligated to comply with its registration obligations under the first three sentences of this Section7.4 . In addition, the Company agrees to use its best efforts to register the Common Stock issuable upon exercise of a Warrant under the blue sky laws of the states of residence of the exercising Warrant holder to the extent an exemption is not available. 13 8.Concerning the Warrant Agent and Other Matters. 8.1Payment of Taxes. The Company shall from time to time promptly pay all taxes and charges that may be imposed upon the Company or the Warrant Agent in respect of the issuance or delivery of Common Stock upon the exercise of the Warrants, but the Company shall not be obligated to pay any transfer taxes in respect of the Warrants or such shares. 8.2Resignation, Consolidation, or Merger of Warrant Agent. 8.2.1 Appointment of Successor Warrant Agent. The Warrant Agent, or any successor to it hereafter appointed, may resign its duties and be discharged from all further duties and liabilities hereunder after giving sixty (60)days’ notice in writing to the Company. If the office of the Warrant Agent becomes vacant by resignation or incapacity to act or otherwise, the Company shall appoint in writing a successor Warrant Agent in place of the Warrant Agent. If the Company shall fail to make such appointment within a period of thirty (30)days after it has been notified in writing of such resignation or incapacity by the Warrant Agent or by the holder of a Warrant (who shall, with such notice, submit his Warrant for inspection by the Company), then the holder of any Warrant may apply to the Supreme Court of the State of New York for the County of New York for the appointment of a successor Warrant Agent at the Company’s cost. Any successor Warrant Agent, whether appointed by the Company or by such court, shall be a corporation organized and existing under the laws of the State of New York, in good standing and having its principal office in the Borough of Manhattan, City and State of New York, and authorized under such laws to exercise corporate trust powers and subject to supervision or examination by federal or state authority. After appointment, any successor Warrant Agent shall be vested with all the authority, powers, rights, immunities, duties, and obligations of its predecessor Warrant Agent with like effect as if originally named as Warrant Agent hereunder, without any further act or deed; but if for any reason it becomes necessary or appropriate, the predecessor Warrant Agent shall execute and deliver, at the expense of the Company, an instrument transferring to such successor Warrant Agent all the authority, powers, and rights of such predecessor Warrant Agent hereunder; and upon request of any successor Warrant Agent the Company shall make, execute, acknowledge, and deliver any and all instruments in writing for more fully and effectually vesting in and confirming to such successor Warrant Agent all such authority, powers, rights, immunities, duties, and obligations. 14 8.2.2Notice of Successor Warrant Agent. In the event a successor Warrant Agent shall be appointed, the Company shall give notice thereof to the predecessor Warrant Agent and the Transfer Agent for the Common Stock not later than the effective date of any such appointment. 8.2.3Merger or Consolidation of Warrant Agent. Any corporation into which the Warrant Agent may be merged or with which it may be consolidated or any corporation resulting from any merger or consolidation to which the Warrant Agent shall be a party shall be the successor Warrant Agent under this Agreement without any further act. 8.3Fees and Expenses of Warrant Agent. 8.3.1 Remuneration. The Company agrees to pay the Warrant Agent reasonable remuneration for its services as such Warrant Agent hereunder and shall, pursuant to its obligations under this Agreement, reimburse the Warrant Agent upon demand for all expenditures that the Warrant Agent may reasonably incur in the execution of its duties hereunder. 8.3.2Further Assurances. The Company agrees to perform, execute, acknowledge, and deliver or cause to be performed, executed, acknowledged, and delivered all such further and other acts, instruments, and assurances as may reasonably be required by the Warrant Agent for the carrying out or performing of the provisions of this Agreement. 8.4Liability of Warrant Agent. 8.4.1 Reliance on Company Statement. Whenever in the performance of its duties under this Agreement, the Warrant Agent shall deem it necessary or desirable that any fact or matter be proved or established by the Company prior to taking or suffering any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a statement signed by the President, Chief Executive Officer or Chairman of the Board of the Company and delivered to the Warrant Agent. The Warrant Agent may rely upon such statement for any action taken or suffered in good faith by it pursuant to the provisions of this Agreement. 8.4.2Indemnity. The Warrant Agent shall be liable hereunder only for its own gross negligence, willful misconduct or bad faith. The Company agrees to indemnify the Warrant Agent and save it harmless against any and all liabilities, including judgments, costs and reasonable counsel fees, for anything done or omitted by the Warrant Agent in the execution of this Agreement, except as a result of the Warrant Agent’s gross negligence, willful misconduct or bad faith. 15 8.4.3Exclusions. The Warrant Agent shall have no responsibility with respect to the validity of this Agreement or with respect to the validity or execution of any Warrant (except its countersignature thereof). The Warrant Agent shall not be responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Warrant. The Warrant Agent shall not be responsible to make any adjustments required under the provisions of Section4 hereof or responsible for the manner, method, or amount of any such adjustment or the ascertaining of the existence of facts that would require any such adjustment; nor shall it by any act hereunder be deemed to make any representation or warranty as to the authorization or reservation of any Common Stock to be issued pursuant to this Agreement or any Warrant or as to whether any Common Stock shall, when issued, be valid and fully paid and nonassessable. 8.5Acceptance of Agency. The Warrant Agent hereby accepts the agency established by this Agreement and agrees to perform the same upon the terms and conditions herein set forth and among other things, shall account promptly to the Company with respect to Warrants exercised and concurrently account for, and pay to the Company, all monies received by the Warrant Agent for the purchase of the Common Stock through the exercise of the Warrants. 8.6Waiver. The Warrant Agent has no right of set-off or any other right, title, interest or claim of any kind (“Claim”) in, or to any distribution of, the Trust Account (as defined in that certain Investment Management Trust Agreement, dated as of the date hereof, by and between the Company and the Warrant Agent as trustee thereunder) and hereby agrees not to seek recourse, reimbursement, payment or satisfaction for any Claim against the Trust Account for any reason whatsoever. The Warrant Agent hereby waives any and all Claims against the Trust Account and any and all rights to seek access to the Trust Account. 9.Miscellaneous Provisions. 9.1Successors. All the covenants and provisions of this Agreement by or for the benefit of the Company or the Warrant Agent shall bind and inure to the benefit of their respective successors and assigns. 9.2Notices. Any notice, statement or demand authorized by this Agreement shall be sufficiently given (i) when so delivered if by hand or overnight delivery, (ii) upon receipt of by the intended recipient if by facsimile, or (ii) if sent by certified mail or private courier service within five (5)days after deposit of such notice, postage prepaid. Such notice, statement or demand shall be addressed as follows: If to the Company: Quinpario Acquisition Corp. 12935 N. Forty Drive Suite 201 St. Louis, Missouri 63141 Fax: (775) 206-7966 Attention: Jeffry N. Quinn, Chief Executive Officer 16 If to the Warrant Agent: Continental Stock Transfer & Trust Company 17 Battery Place New York, New York 10004 Fax: 212-616-7615 Attention: Compliance Department with a copy in each case (which shall not constitute service) to: Ellenoff Grossman & Schole LLP 150 East 42nd Street New York, NY 10017 Fax: 212-370-1300 Attention:Douglas S. Ellenoff, Esq. 9.3Applicable Law. The validity, interpretation, and performance of this Agreement and of the Warrants shall be governed in all respects by the laws of the State of New York applicable to contracts wholly performed within the borders of such state and without giving effect to conflicts of law principles that would result in the application of the substantive laws of another jurisdiction. The Company hereby agrees that any action, proceeding or claim against it arising out of or relating in any way to this Agreement shall be brought and enforced in the courts of the State of New York or the United States District Court for the Southern District of New York, and irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive. The Company hereby waives any objection to such exclusive jurisdiction and that such courts represent an inconvenient forum. 9.4Persons Having Rights under this Agreement. Nothing in this Agreement expressed and nothing that may be implied from any of the provisions hereof is intended, or shall be construed, to confer upon, or give to, any person or corporation other than the parties hereto and the Registered Holders of the Warrants any right, remedy, or claim under or by reason of this Agreement or of any covenant, condition, stipulation, promise, or agreement hereof. All covenants, conditions, stipulations, promises, and agreements contained in this Agreement shall be for the sole and exclusive benefit of the parties hereto and their successors and assigns and of the Registered Holders of the Warrants. 9.5Examination of the Agreement. A copy of this Agreement shall be available at all reasonable times at the office of the Warrant Agent in the Borough of Manhattan, City and State of New York, for inspection by the Registered Holder of any Warrant. The Warrant Agent may require any such holder to submit his Warrant for inspection by it. 9.6Counterparts. This Agreement may be executed in any number of original or facsimile counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument. 9.7Effect of Headings. The section headings herein are for convenience only and are not part of this Agreement and shall not affect the interpretation thereof. 17 9.8Amendments. This Agreement may be amended by the parties hereto without the consent of any Registered Holder for the purpose of curing any ambiguity, or curing, correcting or supplementing any defective provision contained herein or adding or changing any other provisions with respect to matters or questions arising under this Agreement as the parties may deem necessary or desirable and that the parties deem shall not adversely affect the interest of the Registered Holders. All other modifications or amendments, including any amendment to increase the Warrant Price or shorten the Exercise Period and any amendment to the terms of only the Placement Warrants or Extension Warrants, shall require the written consent of the Registered Holders of 65% of the then outstanding Public Warrants. Further, neither the Sponsor nor its Permitted Transferees shall vote any Placement Warrants or Extension Warrants owned or controlled by them in favor of such amendment unless the Registered Holders of 65% of the Public Warrants vote in favor of such amendment. Notwithstanding the foregoing, the Company may lower the Warrant Price or extend the duration of the Exercise Period pursuant to Sections3.1 and 3.2, respectively, without the consent of the Registered Holders. 9.9Severability. This Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Agreement or of any other term or provision hereof. Furthermore, in lieu of any such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Agreement a provision as similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable. [Remainder of page intentionally left blank. Signature page follows.] 18 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written. QUINPARIO ACQUISITION CORP. By: Name: Jeffry N. Quinna Title:Chief Executive Officer CONTINENTAL STOCK TRANSFER & TRUST COMPANY, as Warrant Agent By: Name: Title: 19 EXHIBIT A [Form of Warrant Certificate] [face] Number Warrants THIS WARRANT SHALL BE VOID IF NOT EXERCISED PRIOR TO THE EXPIRATION OF THE EXERCISE PERIOD PROVIDED FOR IN THE WARRANT AGREEMENT DESCRIBED BELOW QUINPARIO ACQUISITION CORP. A Delaware corporation CUSIP Warrant Certificate This Warrant Certificate certifies that, or registered assigns, is the registered holder ofwarrants (the“Warrants”) to purchase shares of common stock, $0.0001 par value (the“Common Stock”), of Quinpario Acquisition Corp. (the“Company”). Each Warrant entitles the holder, upon exercise during the period set forth in the Warrant Agreement referred to below, to receive from the Company that number of fully paid and nonassessable shares of Common Stock (each, a“Warrant” ) as set forth below, at the exercise price (the“Exercise Price”) as determined pursuant to the Warrant Agreement, payable in lawful money (or through“cashless exercise” if permitted by the Warrant Agreement) of the United States of America upon surrender of this Warrant Certificate and payment of the Exercise Price at the office or agency of the Warrant Agent referred to below, subject to the conditions set forth herein and in the Warrant Agreement. Defined terms used in this Warrant Certificate but not defined herein shall have the meanings given to them in the Warrant Agreement (as defined on the reverse hereof). Each Warrant is initially exercisable for one fully paid and non-assessable share of Common Stock. The number of shares of Common Stock issuable upon exercise of the Warrants is subject to adjustment upon the occurrence of certain events set forth in the Warrant Agreement. 20 The initial Exercise Price per share of Common Stock for any Warrant is equal to $12.00 per share. The Exercise Price is subject to adjustment upon the occurrence of certain events set forth in the Warrant Agreement. Subject to the conditions set forth in the Warrant Agreement, the Warrants may be exercised only during the Exercise Period and to the extent not exercised by the end of such Exercise Period, such Warrants shall become void. Reference is hereby made to the further provisions of this Warrant Certificate set forth on the reverse hereof and such further provisions shall for all purposes have the same effect as though fully set forth at this place. This Warrant Certificate shall not be valid unless countersigned by the Warrant Agent, as such term is used in the Warrant Agreement. This Warrant Certificate shall be governed and construed in accordance with the internal laws of the State of New York, without regard to conflicts of laws principles thereof. QUINPARIO ACQUISITION CORP. By: Name:Jeffry N. Quinn Title: Chief Executive Officer CONTINENTAL STOCK TRANSFER & TRUST COMPANY, as Warrant Agent By: Name: Title: 21 [Form of Warrant Certificate] [Reverse] The Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of Warrants entitling the holder on exercise to receive shares of Common Stock and are issued or to be issued pursuant to a Warrant Agreement dated as of [●], 2013 (the“Warrant Agreement”), duly executed and delivered by the Company to Continental Stock Transfer & Trust Company, a New York corporation, as warrant agent (the“Warrant Agent”), which Warrant Agreement is hereby incorporated by reference in and made a part of this instrument and is hereby referred to for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Warrant Agent, the Company and the holders (the words“holders”or “holder”meaning the Registered Holders or Registered Holder) of the Warrants. A copy of the Warrant Agreement may be obtained by the holder hereof upon written request to the Company. Defined terms used in this Warrant Certificate but not defined herein shall have the meanings given to them in the Warrant Agreement. Warrants may be exercised at any time during the Exercise Period set forth in the Warrant Agreement. The holder of Warrants evidenced by this Warrant Certificate may exercise them by surrendering this Warrant Certificate, with the form of election to purchase set forth hereon properly completed and executed, together with payment of the Exercise Price as specified in the Warrant Agreement (or through“cashless exercise” if permitted by the Warrant Agreement) at the principal corporate trust office of the Warrant Agent. In the event that upon any exercise of Warrants evidenced hereby the number of Warrants exercised shall be less than the total number of Warrants evidenced hereby, there shall be issued to the holder hereof or his, her or its assignee, a new Warrant Certificate evidencing the number of Warrants not exercised. Notwithstanding anything else in this Warrant Certificate or the Warrant Agreement, no Warrant may be exercised unless at the time of exercise (i)a registration statement covering the shares of Common Stock to be issued upon exercise is effective under the Securities Act and (ii)a prospectus thereunder relating to the shares of Common Stock is current, except through“cashless exercise” if permitted by the Warrant Agreement.Additionally, if the Corporation fails to enter into a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination, involving the Corporation and one or more businesses by [], 20, or or if properly extended as described in the prospectus relating to the Corporation’s initial public offering, the Warrants evidenced by this Warrant Certificate shall expire worthless. The Warrant Agreement provides that upon the occurrence of certain events the number of the Warrants set forth on the face hereof may, subject to certain conditions, be adjusted. If, upon exercise of a Warrant, the holder thereof would be entitled to receive a fractional interest in a share of Common Stock, the Company shall, upon exercise, round up to the nearest whole number of shares of Common Stock to be issued to the holder of the Warrant. 22 Warrant Certificates, when surrendered at the principal corporate trust office of the Warrant Agent by the Registered Holder thereof in person or by legal representative or attorney duly authorized in writing, may be exchanged, in the manner and subject to the limitations provided in the Warrant Agreement, but without payment of any service charge, for another Warrant Certificate or Warrant Certificates of like tenor evidencing in the aggregate a like number of Warrants. Upon due presentation for registration of transfer of this Warrant Certificate at the office of the Warrant Agent a new Warrant Certificate or Warrant Certificates of like tenor and evidencing in the aggregate a like number of Warrants shall be issued to the transferee(s) in exchange for this Warrant Certificate, subject to the limitations provided in the Warrant Agreement, without charge except for any tax or other governmental charge imposed in connection therewith. The Company and the Warrant Agent may deem and treat the Registered Holder(s) thereof as the absolute owner(s) of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof, of any distribution to the holder(s) hereof, and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary. Neither the Warrants nor this Warrant Certificate entitles any holder hereof to any rights of a stockholder of the Company. 23 Election to Purchase (To Be Executed Upon Exercise of Warrant) The undersigned hereby irrevocably elects to exercise the right, represented by this Warrant Certificate, to receiveshares of Common Stock and herewith tenders payment for such shares to the order of Quinpario Acquisition Corp. (the“Company”) in the amount of $ in accordance with the terms hereof. The undersigned requests that a certificate for such shares be registered in the name of , whose address isand that such shares be delivered towhose address is . If said number of shares is less than all of the shares of Common Stock purchasable hereunder, the undersigned requests that a new Warrant Certificate representing the remaining balance of such shares be registered in the name of , whose address is , and that such Warrant Certificate be delivered to , whose address is . In the event that the Warrant (as such term is defined in the Warrant Agreement) has been called for redemption by the Company pursuant to Section6 of the Warrant Agreement and the Company has required cashless exercise pursuant to Section6.3 of the Warrant Agreement, the number of shares that this Warrant is exercisable for shall be determined in accordance with subsection 3.3.1(b) and Section 6.3 of the Warrant Agreement. In the event that the Warrant is a Placement Warrant or an Extension Warrant that is to be exercised on a“cashless basis” pursuant to subsections 3.3.1(c) of the Warrant Agreement, the number of shares that this Warrant is exercisable for shall be determined in accordance with subsection 3.3.1(c) of the Warrant Agreement. In the event that the Warrant is to be exercised on a“cashless basis” pursuant to Section 7.4 of the Warrant Agreement, the number of shares that this Warrant is exercisable for shall be determined in accordance with Section7.4 of the Warrant Agreement. In the event that the Warrant may be exercised, to the extent allowed by the Warrant Agreement, through cashless exercise (i)the number of shares that this Warrant is exercisable for would be determined in accordance with the relevant section of the Warrant Agreement which allows for such cashless exercise and (ii)the holder hereof shall complete the following: The undersigned hereby irrevocably elects to exercise the right, represented by this Warrant Certificate, through the cashless exercise provisions of the Warrant Agreement, to receive shares of Common Stock. If said number of shares is less than all of the shares of Common Stock purchasable hereunder (after giving effect to the cashless exercise), the undersigned requests that a new Warrant Certificate representing the remaining balance of such shares be registered in the name of, whose address is, and that such Warrant Certificate be delivered to, whose address is . Date:, 20 24 (Signature) (Address) (Tax Identification Number) Signature Guaranteed: THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM, PURSUANT TO S.E.C. RULE 17Ad-15). 25 EXHIBIT B LEGEND THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS AND NEITHER THE SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR SUCH LAWS OR AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT AND SUCH LAWS WHICH, IN THE OPINION OF COUNSEL FOR THIS CORPORATION, IS AVAILABLE. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A LOCKUP AGREEMENT AND MAY ONLY BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED DURING THE TERM OF THAT LOCKUP AGREEMENT PURSUANT TO THE TERMS SET FORTH THEREIN. No. Warrants 26
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As filed with the Securities and Exchange Commission on April 29, 2008 File Nos. 811-22077 333-143669 SECURITIES
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SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of earliest event reported) April 24, 2013 Cigna Corporation (Exact name of registrant as specified in its charter) Delaware (State or other jurisdiction of incorporation) 1-08323 (Commission File Number) 06-1059331 (IRS Employer Identification No.) 900 Cottage Grove Road Bloomfield, Connecticut 06002 (Address of principal executive offices)(Zip Code) Registrant's telephone number, including area code: (860) 226-6000 Not Applicable (Former name or former address, if changed since last report) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions: [ ]Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) [ ]Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) [ ]Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) [ ]Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) Item5.07 Submission of Matters to a Vote of Security Holders. Cigna Corporation (“Cigna”) held its Annual Meeting of Shareholders on April 24, 2013.At the Annual Meeting, Cigna shareholders (1) elected each of the nominees listed below to the Board of Directors for a term expiring in 2016; (2) ratified the appointment of PricewaterhouseCoopers LLP as Cigna’s independent registered public accounting firm for 2013; (3) approved an advisory resolution on executive compensation; (4) approved an amendment to Cigna's Long-Term Incentive Plan; and (5) did not approve a shareholder proposal on lobbying disclosure. There were 246,423,423 shares of Cigna's common stock - 86% of the total shares eligible to vote - represented either in person or by proxy at the Annual Meeting.
Set forth below are the voting results for each proposal. Proposal 1:Election of directors – to elect four directors for terms expiring in 2016. Votes For Votes Against Abstentions Broker Non-Votes Nominees David M. Cordani Isaiah Harris, Jr. Jane E. Henney, M.D. Donna F. Zarcone Shareholders elected the nominees with approximately 97% of the votes cast in favor. Proposal 2:Ratification of the appointment of PricewaterhouseCoopers LLP as Cigna’s independent registered public accounting firm for 2013. Votes For Votes Against Abstentions Broker Non-Votes 0 Shareholders approved the ratification of PricewaterhouseCoopers LLP’s appointment with 99% of the votes cast in favor. Proposal 3:Approval of an advisory resolution on executive compensation. Votes For Votes Against Abstentions Broker Non-Votes Shareholders approved the advisory resolution on Cigna’s executive compensation with 97% of the votes cast in favor. Proposal 4:Approval of an amendment to the Cigna Long-Term Incentive Plan. Votes For Votes Against Abstentions Broker Non-Votes Shareholders approved the amendment with 96% of the votes cast in favor. Proposal 5:Approval of a shareholder proposal on lobbying disclosure. Votes For Votes Against Abstentions Broker Non-Votes Shareholders did not approve the proposal on lobbying disclosure with 6% of the votes cast in favor. SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. Cigna Corporation Date: April30, 2013 By: /s/ Nicole S. Jones Nicole S. Jones Executive Vice President and General Counsel
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AZZ incorporated Completes Acquisition of Nuclear Logistics Inc. Contact: Dana Perry, Senior Vice President – Finance and CFO AZZ incorporated 817-810-0095 Internet:www.azz.com Lytham Partners 602-889-9700 Joe Dorame or Robert Blum Internet: www.lythampartners.com June 1, 2012 – Fort Worth, TX – AZZ incorporated (“AZZ”) (NYSE: AZZ), a manufacturer of electrical products and a provider of galvanizing services, today announced the successful completion of substantially all of the assets of Nuclear Logistics Inc. (“NLI”), a Fort Worth, TX based provider of electrical and mechanical equipment and services for enhancing the safety of nuclear facilities. NLI will be an indirect wholly-owned subsidiary of AZZ. For the first full year under AZZ, NLI revenues are expected to be in the range of $70 to $80 million.AZZ expects the acquisition to be accretive to FY 2013 EPS by $0.20 to $0.25, which will include the expected acquisition costs and the amortization of intangible assets, including NLI’s acquired backlog of approximately $75 million.The acquisition of NLI and the strategic impact on the Electrical and Industrial Products Segment will be discussed in detail at the next quarterly conference call tentatively scheduled for June 28, 2012. About Nuclear Logistics Inc. Founded in 1991, NLI has established itself as a premier provider of Electrical and Mechanical components to nuclear power plants and US Department of Energy facilities.NLI works in concert with leading equipment manufacturers to supply equipment to meet nuclear industry requirements including seismic and environmental qualification, EMI/RFI testing and software verification and validation.NLI also has custom design and manufacturing capabilities to meet the industry specific requirements.NLI’s mission is to provide technically superior solutions to the nuclear industry. About AZZ incorporated (NYSE: AZZ) AZZ incorporated is a specialty electrical equipment manufacturer serving the global markets of industrial, power generation, transmission and distributions, as well as a leading provider of hot dip galvanizing services to the North American steel fabrication market. Safe Harbor Statement Certain statementsherein about our expectations of future events or results constitute forward-looking statements for purposes of the safe harbor provisions of The Private Securities Litigation Reform Act of 1995. You can identify forward-looking statements by terminology such as, “may,” “should,” “expects,“ “plans,” “anticipates,” “believes,” “estimates,” “predicts,” “potential,” “continue,” or the negative of these terms or other comparable terminology. Such forward-looking statements are based on currently available competitive, financial and economic data and management’s views and assumptions regarding future events. Such forward-looking statements are inherently uncertain, and investors must recognize that actual results may differ from those expressed or implied in the forward-looking statements. This release may contain forward-looking statements that involve risks and uncertainties including, but not limited to, changes in customer demand and response to products and services offered by AZZ, including demand by the electrical power generation markets, electrical transmission and distribution markets, the industrial markets, and the hot dip galvanizing markets; prices and raw material cost, including zinc and natural gas which are used in the hot dip galvanizing process; changes in the economic conditions of the various markets that AZZ serves, foreign and domestic, customer request delays of shipments, acquisition opportunities, currency exchange rates, adequacy of financing, and availability of experienced management employees to implement AZZ’s growth strategy. AZZ has provided additional information regarding risks associated with the business in AZZ’s Annual Report on Form 10-K for the fiscal year ended February 29, 2012 and other filings with the SEC, available for viewing on AZZ’s website at www.azz.com and on the SEC’s website at www.sec.gov.You are urged to consider these factors carefully in evaluating the forward-looking statements herein and are cautioned not to place undue reliance on such forward-looking statements, which are qualified in their entirety by this cautionary statement. These statements are based on information as of the datehereof and AZZ assumes no obligation to update any forward-looking statements, whether as a result of new information, future events, or otherwise.
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POWER OF ATTORNEY Each of the undersigned officers and trustees of Buffalo Funds (the "Registrant") hereby appoints Kent W. Gasaway and Joseph C. Neuberger (with full power to each of them to act alone) his attorney-in-fact and agent, to execute, deliver and file in the names of the undersigned, any and all instruments that said attorneys and agents may deem necessary or advisable to enable the Registrant to comply with, or register any security issued by the Registrant under, the Securities Act of 1933, as amended, and/or the Investment Company Act of 1940, as amended, and the rules, regulations and interpretations thereunder, including but not limited to, any registration statement, including any and all pre- and post-effective amendments thereto, any other document to be filed with the U.S. Securities and Exchange Commission and any and all documents required to be filed with respect thereto with any other regulatory authority. Each of the undersigned grants to each of said attorneys, full authority to do and perform all acts necessary or incidental in order to effectuate the same as fully, to all intents and purposes, as he could do if personally present, thereby ratifying all that said attorneys-in-fact and agents may lawfully do or cause to be done by virtue hereof.This Power of Attorney may be executed in one or more counterparts, each of which shall be deemed to be an original, and all of which shall be deemed to be a single document.The undersigned officers and trustees hereby execute this Power of Attorney on the 16th day of August, 2013. /s/ Clay Brethour /s/ J. Gary Gradinger Clay Brethour J. Gary Gradinger /s/ Thomas S. Case /s/ Philip J. Kennedy Thomas S. Case Philip J. Kennedy /s/ Kent W. Gasaway /s/ Joseph C. Neuberger Kent W. Gasaway Joseph C. Neuberger
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Exhibit 10.2
Joe Tibbetts
Sapient Corporation, a Delaware corporation (the “Company”), and Joseph S.
Tibbetts, Jr. (the “Executive”).
and
follows:
-Page 1 of 25-
Control occurred.
constituting Good Reason.
in cash, equal to two (2) times the sum of (i) the Executive’s base salary as in
constituting Good Reason, and (ii) the Executive’s target annual bonus under any
fiscal year in which occurs the Date of Termination or, if higher, the fiscal
(B) Insurance Benefits Continuation. For the twenty-four
(24)-month period immediately following the Date of Termination, the Company
shall arrange to provide the Executive and his dependents life, accident and
health insurance benefits substantially similar to those provided to the
such health insurance benefits shall be provided through a third-party insurer.
Benefits otherwise receivable by the Executive pursuant to this Section 6.1(B)
available to the Executive during the twenty-four (24)-month period following
for the excess, if any, of the after-tax cost of such benefits to the Executive
constituting Good Reason. If the Severance Payments shall be decreased pursuant
to
shall remain exercisable for twenty-four (24) months following the Date of
the Company).
value of
award period.
provide such post-retirement health care or life insurance benefits to the
Executive and the Executive’s dependents commencing on the later of (i) the date
on which such coverage would have first become available and (ii) the date on
which benefits described in subsection (B) of this Section 6.1 terminate.
other plan,
income.
are in
Section 6.2.
personnel records of the
actual receipt:
To the Company:
Sapient Corporation
131 Dartmouth Street
Boston, MA 02116
Attention: General Counsel
11. Miscellaneous.
conditions of the Executive’s employment with the Company, including the
employment agreement dated as of October 16, 2006, between the Executive and the
Company (the “2006 Agreement”), only in the event that the Executive’s
employment with the Company is terminated, on or following a Change in Control,
by the Company other than for Cause or by the Executive for Good Reason. In
supersede the terms of the 2006 Agreement during the period commencing on the
date on which a Change in Control occurs and ending on the last day of the Term
of this Agreement; (ii) until such time as the Term of this Agreement expires
the 2006 Agreement is hereby amended by: (a) deleting the text which begins with
the heading “Definition of ‘Change in Control’” and includes the four paragraphs
immediately following such heading, and (b) deleting all references to “Change
in Control” in the 2006 Agreement; and (iii) upon such Term expiration described
in clause (ii) above, the 2006 Agreement
amendments described therein shall become null and void.
shall not be treated as
period immediately following the Executive’s termination of employment shall
following the Executive’s termination of employment (or upon the Executive’s
year.
hereof.
substantially perform the Executive’s duties with the Company (other
Section 7.1 hereof) that has not been cured within 30 days after a written
the Company.
Company or its Affiliates) representing forty percent (40%) or more of the
such surviving entity;
recommended;
Company’s assets, [other than a sale or disposition by the Company of all or
substantially all of the Company’s assets immediately following which the
entity to which such assets are sold or disposed or (b) if there is no such
parent, of the Company or such entity.
or otherwise.
Section 7.2 hereof.
Change in Control (including, without limitation, the Executive ceasing to be
the Chief Financial Officer of a public company following the Change in
Control);
Control; or,
compensation is due;
Executive with benefits substantially similar to those enjoyed by
participating immediately prior to the Change in Control (except for immaterial
changes or across the board changes similarly affecting all senior executives of
such succession.
Section 7.1 hereof.
underwriter temporarily
the Board).
have occurred:
Change in Control;
indirectly, of securities of the Company representing 15% or more of either the
power of the Company’s then outstanding securities (not
by the Executive of the Executive’s employment if such employment is terminated
in accordance with the Company’s retirement policy, including early retirement,
Section 6.1 hereof.
hereof.
Section 6.2 hereof.
SAPIENT CORPORATION
By: /s/ Darius W. Gaskins, Jr. Name: Darius W. Gaskins, Jr.
Title: Chairman of the Board of Directors EXECUTIVE:
/s/ Joseph S. Tibbetts, Jr. Joseph S. Tibbetts, Jr.
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(“Agreement”) is made and entered into as of this 4th day of November, 2005, by
and between TREIT-University Heights, LP, a Texas limited partnership,
(“Seller”), and Adler Realty Investments, Inc., and or its assigns as provided
herein (“Buyer”), with reference to the following facts:
A. Seller owns certain real property located in Bexar County, San Antonio,
Texas and more specifically described in Exhibit A, attached hereto and
incorporated herein for all purposes (the “Land”), commonly known as University
Heights Business Park and such other assets, as the same are herein described.
defined) Seller shall sell, assign, grant and transfer to Buyer, Seller’s entire
1.1.1. The Land, together with all structures, buildings, improvements (
structures, buildings and improvements collectively referred to herein as
“Improvements”), machinery, fixtures, and equipment affixed or attached to the
Land and all easements and rights appurtenant to the Land including any
minerals, utilities, adjacent streets, alleys strips, gores and rights of way
Property”). The Improvements are located at the physical address known as 5563
De Zavala Road, San Antonio, Texas and comprise approximately 68,400 square feet
of space ;
entered into in accordance with the terms hereof prior to Close of Escrow,
together with all rents, security deposits, other deposits held in connection
with the Leases, Lease guarantees and other similar credit enhancements
providing additional security for such Leases;
intangibles including Seller’s interest, if any, in the name “University Heights
Business Park” (the “Personal Property”);
1.1.4. All service contracts and agreements (“Contracts”) , but only to the
extent Buyer agrees to assume the same in accordance with this Agreement; and
warranties and guaranties relating to the operation of the Property (the
“Contracts; and
The total Purchase Price of the Property shall be EIGHT MILLION TWO HUNDRED
THOUSAND Dollars ($8,200,000.00) (“Purchase Price”) payable as follows:
2.1. Deposit/Further Payments/Down Payment.
2.1.1. Within three (3 ) business days following the Opening of Escrow also
known as the Effective Date (as hereinafter defined), Buyer shall deposit into
Escrow the amount of $100,000 (the “Deposit”), in the form of a wire transfer
payable to Chicago Title Company, at 700 N. St. Mary’s, Suite 125, San Antonio,
Texas 78205, Attn: Mike Guerra (“Escrow Holder”). Escrow Holder shall place the
shall be credited to Buyer’s account. Escrow instructions to provide for
immediate return of earnest money deposit to Buyer, without further instructions
from Seller or any other entity other than Buyer, in the event Buyer does not
approve the Property on or before the expiration of the contingency period.
Notwithstanding anything to the contrary contained herein, if the Deposit is
returned to Buyer, the sum of $100.00 shall be retained by Seller as independent
consideration for Seller’s agreement to offer to sell the Property to Buyer in
accordance with the terms and conditions provided herein. If the sale of the
Property is consummated then the independent consideration shall be credited
toward the Purchase Price.
2.1.2. On or before Close of Escrow, Buyer shall deposit into Escrow the
balance of the Purchase Price, by wire transfer payable to Escrow Holder.
Seller at Seller’s expense, will furnish Buyer a Standard Coverage TLTA owner’s
policy of title insurance from Chicago Title Company with their standard
provisions and exceptions (the “Title Policy”), dated at or after Closing in the
amount of the Purchase Price. The Title Policy is to be free and clear of
encumbrances except as follows:
3.1.1. Real property taxes and assessments, for the year 2006 and which are
a lien not yet due;
3.1.2. Standard printed exceptions contained in a TLTA owner’s title policy
except that the standard printed exceptions as to discrepancies, conflicts or
shortages in area and boundary lines, or any encroachments or protrusions or any
overlapping improvements shall be amended to except only to “shortages in area”
at the Seller’s expense. ; and
3.1.3. The Permitted Exceptions as defined herein and included in such
policy and approved by Buyer.
3.2. Procedure for Approval of Title. Within five (5) days from the
Effective Date, Seller will provide the Buyer copies of the Title Information
Documents (herein defined) and UCC search. After receipt by Buyer of the Title
Information Documents, Buyer shall review and approve or disapprove the Title
Information Documents within twenty (20) calendar days of said receipt
(“Objection Period”). If the Title Information Documents reflect or disclose any
defect, exception or other matter affecting the Property (“Title Defects”) that
is unacceptable to Buyer, then prior to the expiration of the Objection Period ,
Buyer shall provide Seller with written notice of Buyer’s objections. Seller
may, at its sole option, elect to cure or remove the objections made by Buyer.
Should Seller elect to attempt to cure or remove the objection, it shall be a
condition precedent to Buyer’s obligation to acquire the Property that Seller
cures such title objection prior to the Close of Escrow. Unless Seller provides
written notice to Buyer before the expiration of the Inspection Period
(hereafter defined) that Seller intends to cure Buyer’s title objections, Seller
shall be deemed to have elected not to cure or remove Buyer’s title objections,
and Buyer shall be entitled, as Buyer’s sole and exclusive remedies, either to
(i) terminate this Agreement and obtain a refund of the Deposit by providing
written notice of termination to Seller and returning the Due Diligence Items
(hereinafter defined)or (ii) waive the objections and close this transaction as
otherwise contemplated herein. If Buyer shall fail to terminate this Agreement
within the Inspection Period all matters shown on the Title Information
Documents except for monetary liens or security interests for indebtedness of
the Seller or other third party, delinquent taxes, any matters the Seller has
agreed to cure in writing which are not cured prior to the Close of Escrow, or
any matters that are added subsequent to Buyer’s receipt of the Title
Information Documents, shall be deemed “Permitted Exceptions.” In connection
with its review of title, Buyer may order a current survey (“Current Survey”) to
be certified to the Seller, Buyer and the Title Company and dated no earlier
than the Effective Date at Buyer’s cost (but subject to partial reimbursement by
Seller, as provided in Section 6.6.2). Notwithstanding anything to the contrary
contained in this Agreement, if, despite Buyer’s reasonable efforts, Buyer shall
not receive the Current Survey before the date which is 5 days prior to the
expiration of the Inspection Period, Buyer shall be entitled to object to any
matters which first appear in the Current Survey, and if such objections to the
Current Survey remain uncured, Buyer shall have the right to terminate this
Agreement and recover its Deposit by delivering written notice to Seller no
later than the date which is five days after the expiration of the Inspection
Period (the “Current Survey Termination Date”). If Buyer has not terminated this
Agreement by the Current Survey Termination Date, all matters which are shown on
or which would have been shown on a Current Survey had it been ordered, shall be
4. Due Diligence Items. Seller shall deliver to Buyer each of the following
within five (5) days of the Effective Date (“Due Diligence Items”):
(a) A rent roll ( “Rent Roll”) prepared as of the first day of the month in
which this Agreement is executed. The Rent Rollmust be accompanied by fully
executed copies of all Tenant Leases and amendments thereto (the “Tenant
Leases”) and by Seller’s signed certification that the Rent Roll is true,
complete, and correct in all material respects, to the best knowledge of the
Seller, as of the date shown on said Rent Roll and that there has been no
material adverse change with respect to any item shown on the Rent Roll during
the period from the date thereof to the date of such certificate. At Closing,
Seller must provide Buyer with an updated certified Rent Roll dated not earlier
than five (5) days prior to the Closing. Further, Seller shall make available to
Buyer all tenant financial information in Seller’s possession and copies of the
Tenant Leases delivered pursuant to this subsection shall include all
assignments and subleases, if applicable.
b) A list of all Contracts including service, vendor, or management
contracts affecting the ownership, operation and management of Property together
with copies of same and (2) copies all warranties and guaranties of any kind
issued in connection with the Improvements, fixtures, equipment, structures or
any other part of the Property and any warranties and guaranties issued on the
repair of such items. Said list and copies must be accompanied by Seller’s
signed certificate that the Contracts listed thereon are all of such Contracts
as of the date thereof. Ten (10) days prior to Closing, Buyer shall provide
notice to Seller as to which of said Contracts that Buyer desires to assume to
the extent the same are transferable.
(c) Copies of the most recent tax 2005 statements on the Property, the
Improvements, and the Personal Property. Seller will also provide all
information and documentation in connection with any tax protest, pending
appeals and potential assessments on the Property and specific information on
any Tenants who directly pay taxes on the Property.
(d) A schedule (the “Operating Schedule”) reflecting for all of 2004, and
for the current calendar year to date, the amount of: (i) total rents collected
from Tenants for such year; (ii) annual insurance premiums for such year for
fire, extended coverage, workman’s compensation, vandalism, and malicious
mischief, general liability, rents and other forms of insurance shown thereon;
(iii) expenses incurred for such period for water, electricity, natural gas, and
other utility charges; and(iv) ad valorem and business personal property taxes
for the City, County, School District and any other assessing authority;
(v) repairs, maintenance, and all other costs of operating and maintaining the
Property. Said Operating Schedule must be accompanied by Seller’s statement that
said Operating Schedule is true, complete, and correct in all material respects,
to the best knowledge of Seller.
(e) income and expense reports relating to the Property for the years
2003-2005 (to date).
(f) three(3) year history of the occupancy at the Property.
(g) copies of all the insurance certificates in force at the Property.
(h) copies of the utility bills for the last 12 months from the Effective
Date;
(i) CAM charge pass through billings for each Tenant for the years 2003-2005
and expense stops for such years.
(j) Any engineering or other reports in Seller’s possession or readily
available to Seller that describe or otherwise identify the condition of the
parking area, landscaped areas, light poles, sprinkler systems, and all other
areas of the Property, and/or any repairs, upgrades, or improvements that may be
required or needed.
(k) Any Tenant’s Certificate(s) of Occupancy for the Improvements and any
amendments thereto that Seller has in its possession.
(l) Any and all soil and site assessments and reports, Phase I, II, III or
other environmental or asbestos surveys or reports in Seller’s possession.
(m) Any as built plans and specifications, engineering drawings, plans, etc.
of the Improvements in Seller’s possession and copies of all existing surveys of
the Property.
(n) Any inspection reports that include any aspect of the Property including
Improvements, fixtures, equipment and all structural aspects of the Property,
engineering or other reports in Seller’s possession that describes, or otherwise
identifies the condition of the roof and other structural components and/or any
repairs, upgrades, or improvements that may be required or needed.
(o) intentionally deleted.
(p) Tenant ledgers for the past twelve (12) months showing amounts billed,
amounts paid and Tenant payment history.
(q) To the extent available, all property operating manuals and documents
including, but limited to: (1) O & M Procedures Manual for hazardous materials;
(2) equipment certifications, including but not limited to sprinklers, alarm
systems, and elevator testing; (3) fire evacuation plans (if required and/or
completed).
(r) Copies of all invoices for repair of equipment, fixtures and structural
items in connection with the operation of the Property exceeding $1,500.00 per
invoice for two (2) years preceding the Effective Date.
(s) Current inventory of all tangible Personal Property owned by the Seller
and used in connection with the Property operation, if any.
(t)) The existing survey of the Property, if any (the “Survey”), a current
preliminary title report or title commitment issued after the
EffectiveDate (the “Title Report”) for the issuance of Title Policy to Buyer
from the Escrow Holder, together with good and legible copies of all documents
constituting exceptions to the title as reflected in the Title Report, to the
extent available ( the Survey, Title Report and documents reflected in the Title
Report ,collectively referred to herein as the “Title Information Documents”)
and a UCC search, at Seller’s expense, prepared by a reporting service and dated
after the Effective Date which identifies documents on file with the Texas
Secretary of State and the State where the Seller is organized and the County
(u) The Tenants’ files, books and records relating to the ownership and
operation of the Property shall be available for inspection by the Buyer during
ordinary business hours at the Seller’s management office during the Inspection
Period.
4.1. Estoppel Certificates.
As a condition precedent to Buyer’s obligation to acquire the Property, Seller
shall obtain and deliver to Buyer, 7 days prior to Closing, estoppel
certificates and subordination, non-disturbance and attornment agreement signed
no earlier than 15 days after the Effective Date, in accordance with their
respective Leases, from Tenants representing eighty-five percent of the square
feet which are leased and occupied by Tenants as of the date this Agreement is
fully executed; including, but not limited to the following Tenants: 1)GSA, 2)
Life Touch and 3) Computer Express. Estoppel certificates shall contain at
minimum: 1) no default exists under the Lease, 2) the amount of rents to be paid
on a monthly basis and that no rents have been paid in advance 3) the amount of
any security deposit 4) the amount of any present abatement of rent or offset
against rent and 5) the expiration date of the Lease and whether there are
renewal options that have been exercised and 6) any material adverse matters in
connection with the applicable Lease. The estoppel certificate form to be
submitted to all Tenants shall be the estoppel certificate form attached hereto
and incorporated herein for all purposes as Exhibit “B”. Buyer shall notify
Seller within three (3) business days of receipt of a copy of the executed
estoppel certificate of its approval or disapproval and the basis of such
disapproval, if disapproved. If Buyer disapproves of an estoppel certificate
because of a material, adverse matter disclosed therein, and Seller is unable to
obtain a reasonably acceptable estoppel certificate prior to the Close of
Escrow, this Agreement shall terminate, Buyer shall be entitled to a refund of
the Deposit, and neither party shall have any further obligation to the other
except Buyer’s indemnification obligations under Paragraph 5.
5. Inspections.
Buyer, at its sole expense, shall have the right to conduct feasibility,
environmental, engineering and physical studies or other tests (the
“Inspections”) of the Property at any time during the Inspection Period
(hereinafter defined). Buyer, and its duly authorized agents or representatives
or third parties hired by the Buyer, shall be permitted to enter upon the
Property at all reasonable times during the Inspection Period in order to
conduct engineering studies, soil tests and any other Inspections and/or tests
that Buyer may deem necessary or advisable. Buyer must arrange all Inspections
of the Property with Seller or Seller’s agent at least two (2) business days in
advance of any Inspections. In the event that the review and/or Inspections
conducted pursuant to this paragraph shows any fact, matter or condition to
exist with respect to the Property that is unacceptable to Buyer, in Buyer’s
sole subjective discretion, then Buyer shall be entitled, as its sole and
exclusive remedy, to (1) terminate this Agreement and obtain a refund of the
Deposit, or (2) waive the objection, and close the transaction as otherwise
contemplated herein. Buyer agrees to promptly discharge any liens that may be
imposed against the Property as a result of the Inspections and that are caused
by the Buyer, its agents, representatives or third parties that Buyer hired and
to defend, indemnify and hold Seller harmless from all, claims, suits, losses,
costs, expenses (including without limitation court costs and attorneys’ fees),
liabilities, judgments and damages incurred by Seller as a result of any
Inspections and that are caused by the Buyer, its agents, representatives or
third parties that Buyer hired.
5.1. Approval.
5.1.1. Buyer shall have thirty (30) days after receipt of all Due Diligence
Items and Title Information Documents (“Inspection Period”)to approve or
disapprove the Property. If Buyer accepts the Property, it shall notify Seller
and Escrow Holder of its approval of the Property in writing within the
Inspection Period. If Buyer does not so notify the Seller of its acceptance of
the Property with the Inspection Period this Agreement and the Escrow shall
thereupon be automatically terminated, the Deposit shall be promptly refunded to
the Buyer without further requirement or written release of Deposit from the
Seller and the parties shall be relieved of any further obligation to each other
with respect to the Property, except as provided in Paragraph 5. The Seller and
Buyer agree to enter into a written acknowledgement indicating the date that the
Inspection Period commences after Seller confirms it has delivered the Due
Diligence Items and Title Information Documents to Buyer and Buyer confirms its
receipt of the same. Should Buyer determine that any Due Diligence Items or
Title Information Documents have not been delivered, it shall promptly notify
the Seller and the Seller shall provide the missing items as soon as reasonably
possible. For each day of delay in the delivery of all of the Due Diligence
Items and Title Information Documents, the Inspection Period will be extended by
the same amount of days; provided that the Inspection Period shall in no event
be extended more than 7 days.
5.1.2. Notwithstanding anything to the contrary contained herein, Buyer
then Buyer shall promptly and at its sole expense return to Seller all Due
Diligence Items which have been delivered by Seller to Buyer in connection with
the Inspections, along with copies of all reports, drawings, plans, studies,
summaries, surveys, maps and other data prepared by third parties relating to
the Property, subject to restrictions on Buyer’s ability to make any such
materials available to Seller that are imposed in any agreement with a third
party consultant preparing any such reports or materials (“Buyer’s Reports”).
Buyer shall cooperate with Seller at no expense to Buyer in order to obtain a
waiver of any such limitations.
5.1.3. Notwithstanding any contrary provision of this Agreement, Buyer
acknowledges that Seller is not representing or warranting that any of the Due
Diligence Items prepared by third parties not affiliated with the Buyer are
accurate or complete, such as the Survey, engineering reports and the like.
Seller advises Buyer to independently verify the facts and conclusions set forth
therein, provided however, Seller warrants that it has no knowledge of any
material errors or misstatements in such information regarding the Property. ,
Buyer, however, does warrant that Due Diligence Items that are prepared by the
Buyer or Buyer’s agents, affiliates or representatives are materially accurate
and complete including any and all Tenant information, income and loss
statements of the Property or operating reports delivered in connection with the
Due Diligence Items. Buyer’s warranty in this paragraph shall survive Closing.
5.1.4. In consideration for Buyer undertaking its due diligence, Seller will
not market or show its interest in the Property, to any other person or entity
and will not make, accept, negotiate or otherwise pursue any negotiations for
the disposition of the Property.
6. Escrow.
6.1. Opening.
the execution of this Agreement by Seller and Buyer. Escrow shall be deemed to
be opened as of the date fully executed copies (or counterparts) of this
Agreement are delivered to Escrow Holder by Buyer and Seller and the Escrow
Holder has receipted and dated the same in the signature line provided for the
Escrow Holder at the end of the Agreement. (“Opening of Escrow”). This Agreement
shall be considered as the Escrow instructions between the parties, with such
further instructions as Escrow Holder shall require in order to clarify its
Such further instructions shall be promptly signed by Buyer and Seller and
returned to Escrow Holder within three (3) business days of receipt thereof. In
such further instructions, the terms and conditions of this Agreement shall
control.
6.2.1. Escrow shall close (“Close of Escrow”) within thirty (30) days after
the expiration of the Inspection Period or the written approval of the Property
by the Buyer, whichever is earlier, unless otherwise extended as provided
herein. Buyer shall have a one-time right to extend the closing (“Closing”) by
thirty (30) days upon payment of an additional deposit of Twenty Five Thousand
($25,000). (“Additional Deposit”) to be placed in escrow with the Escrow Holder;
it being understood that Buyer will not be required to make the Additional
Deposit if the sole reason for the extension is due to Seller requiring
additional time to perform its obligations hereunder. The Additional Deposit
will be non-refundable, except for a Seller default or unless otherwise
refundable to Buyer as provided in this Agreement and will apply to the Purchase
Price at Closing. In the event the Buyer elects to extend the Agreement and
after the Additional Deposit is deposited with the Escrow Holder, the term
Deposit as used herein shall for all purposes include the Additional Deposit,
including but not limited to Buyer’s right to obtain a refund of a Deposit from
the Escrow Holder after a rightful termination of the Agreement. Buyer shall
have the right after giving notice to Seller to assign its rights and
obligations as defined herein, provided Buyer shall remain liable hereunder. The
Closing date may be extended to cure Title Defects, if Seller in good faith and
with due diligence is attempting to cure such Title Defects and the same cannot
be reasonably cured by the Closing date. If Closing is required to be extended
due to a Seller’s need to cure Title Defects that Seller has elected to cure,
then Buyer shall not be obligated to provide the Additional Deposit and Closing
shall occur 7 days after Title Defects have been cured. Notwithstanding any
language to the contrary, if Closing, as so extended, has not been cured 45 days
after the date of the original Closing date due to Seller’s inability to cure
the Title Defects, then Buyer may: 1) waive such Title Defects and proceed with
Closing 5 days thereafter with notice to the Seller of the same or 2) terminate
the Agreement by written notice to the Seller and receive a full refund of the
Deposit (except the independent consideration) and the parties shall have no
further obligation hereunder.
6.3.1.
Within 3 days from the Opening of Escrow, the Deposit;
6.3.2. On or before Close of Escrow, the payment required by
Paragraph 2.1.2; provided, however that Buyer shall not be required to deposit
the amount specified in Paragraph 2.1.2 until Buyer has been notified by Escrow
to Buyer and (iii) the only impediment to Close of Escrow is delivery of such
amount by or on behalf of Buyer;
6.3.3. On or before Close of Escrow, such other documents as Title Company
may require from Buyer in order to issue the Title Policy;
6.3.4. An original assignment and assumption agreement (the “Assignment and
Assumption Agreement”) duly executed by Seller assigning and conveying to Buyer
wherein Buyer assumes the Contracts it has notified Seller that it desires to
assume post-closing.
On or before Close of Escrow, Seller shall deliver to Escrow the following:
6.4.1. A duly executed and acknowledged Special Warranty deed, conveying fee
title to the Property in favor of Buyer (the “ Deed”) made subjected only to
Permitted Exceptions and parties in possession under validly existing Leases. In
the event a lender is involved in the finance of the Property, Seller shall also
include a third party’s vendor’s lien in favor of said lender ;
6.4.2. An executed Certificate of Non-Foreign Status and evidence required
by the Escrow Holder to reflect the Seller is authorized to enter into the
transaction;
6.4.3. A bill of sale and assignment transferring and assigning the Personal
Property, Leases, security deposits, warranties and guaranties, Permits, and
Contracts that Buyer has agreed to assume in favor of Buyer and duly executed by
Seller; it being understood that Personal Property shall be transferred “AS IS”;
6.4.4. Such other documents as Title Company may require from Seller in
order to issue the Title Policy in the form required including tax statements
showing no delinquent taxes on the Property;
6.4.5. Tenant Rent Roll current as of the day of Closing certified by the
Seller to be true and correct. ;
6.4.6. Seller shall deliver to Buyer all keys to all buildings and other
improvements located on the Property, combinations to any safes thereon, and
security devices therein in Seller’s possession;
6.4.7. Seller shall deliver all records and files relating to the management
or operation of the Property, including, without limitation, all insurance
property taxes and other charges which are paid by tenants of the Project; and
6.4.8. A counterpart original of the Assignment and Assumption Agreement.
6.4.9. Seller will deliver possession of the Property to the Buyer upon
Closing and funding of this sale.
6.5.1.
6.5.2. Any other expenses agreed to be paid by the Buyer under this
Agreement
6.5.3. All other costs customarily borne by purchasers of real property in
Bexar County, Texas;
6.5.4. If Buyer elects to obtain additional coverage to the Title Policy,
including the survey deletion coverage or any endorsement, the Buyer shall pay
for the additional cost for such additional coverage.
6.6.1.
6.6.2. The premium for the basic title insurance policy, the cost of
recording the Deed, tax statements or certificates, other recording fees in
connection with Seller’s cure of objections to title and other expenses agreed
to be paid by Seller under this Agreement;
6.6.3. If and only if Closing occurs, Seller shall give Buyer a credit in
the amount of $3,000 as a reimbursement for the cost of the Current Survey; and
6.7. Prorations.
Real property taxes, assessments, rents, operating expenses under Contracts
assumed by Buyer and cam charges ( “CAM Charges”) shall be prorated through
Escrow between Buyer and Seller as of Close of Escrow. Rents collected prior of
Close of Escrow shall be prorated through Escrow between Buyer and Seller. Any
Rents collected subsequent to Close of Escrow, the recipient shall promptly
deliver to the other party, not later than five (5) days from receipt thereof, a
check in the amount of the prorated amount due to the other party as of the day
of the Close of Escrow. All rent received shall be allocated to rent due in the
month of Close of Escrow. Rents, operating expenses under Contracts assumed by
the Buyer and Cam Charges shall be approved by Buyer prior to Close of Escrow.
Any delinquent rents collected by Buyer shall be paid to Seller. Seller shall
have the right to pursue any Tenant for delinquent rent, but shall not cause a
Tenant to be delinquent for their current rent or become financially unstable.
If after Close of Escrow either party receives a bill for operating expenses
that should be paid partly or in full by the other party, the party receiving
the bill shall, not later than five (5) days from receipt thereof, send a copy
of the bill together with a proration of the amount due by the other party. The
amount due by the other party shall be paid to the party receiving the bill,
within five (5) days of receipt thereof Tax and assessment prorations shall be
based on the latest available tax bill. If, after Close of Escrow, Buyer
Close of Escrow, or Seller receives any further or supplemental tax bill
relating to any period after Close of Escrow, the recipient shall promptly
deliver a copy of such tax bill to the other party, and not later than ten
(10) days prior to the delinquency date shown on such tax bill Buyer and Seller
shall deliver to the taxing authority their respective shares of such tax bill,
prorated as of Close of Escrow. Notwithstanding, the foregoing, all utilities
shall be read on the Closing date and Buyer shall arrange for such utilities to
be transferred to the name of the Buyer as of the Closing date, accordingly
there will be no proration of utilities. Seller shall provide Buyer a certified
reconciliation of Cam Charges of Tenants 10 days prior to the Closing date.
Seller will pay to Buyer, in cash, the amount of any Cam Charges, including
insurance and utilities paid to Seller by Tenants of the Property, for the
Closing date and periods subsequent to the Closing date. Any CAM Charges
subsequently received by Buyer which are owing to Seller by Tenants of the
Property for periods prior to the Closing date will be forthwith paid by Buyer
to Seller; provided, however, it will be Seller’s responsibility to collect the
same. Buyer will pay to Seller in cash, the amount of any CAM Charges for the
period before Closing which are paid at year end by any Tenants, when the same
are received. The obligations in this paragraph shall survive Closing.
6.7.1. All leasing commissions owing and tenant improvements with respect to
the Property transactions entered into prior to execution of this Agreement
shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless for
Lease commission claims brought against the Property arising therefrom. All
leasing commissions for new Leases and for Lease renewals and expansion options
executed after the date of this Agreement shall be prorated between Buyer and
Seller as their respective periods of ownership bear to the primary term of the
new Lease.
6.7.2. Seller agrees to indemnify and hold Buyer harmless of and from any
nature, including court costs and reasonable attorneys’ fees (except those items
which under the terms of this Agreement specifically become the obligation of
Buyer), brought by third parties and based on events occurring on or before the
date of Closing and which are in any way related to the Property, and all
expenses related thereto, including but not limited to court costs and
attorneys’ fees.
6.7.3. Buyer agrees to indemnify and hold Seller harmless of and from any
nature, including court costs and reasonable attorneys’ fees, brought by third
parties and based on events occurring subsequent to the date of Closing and
which are in any way related to the Property, and all expenses related thereto,
6.8.1. The Buyer and Seller shall use their reasonable efforts to execute a
schedule which shall state the critical dates of performance and delivery items
required of Seller and Buyer hereunder within 10 days after the Effective Date
hereof in order to define the critical dates of performance of each party and
shall update such schedule when dates can be determined subsequent to the
initial execution of the schedule.
7. Representations, Warranties, and Covenants.
Seller hereby represents and warrants as of the date hereof to Buyer as follows
(and for purposes of the following representations, “to the best of Seller’s
actual knowledge” or similar language shall mean the actual knowledge, without
the duty of investigation of Christe Cavaness, Asset Manager of the Property and
Sally Cabreras, Property Manager of the Property):
7.1. Seller is a limited partnership duly formed and validly existing under
the laws of the State of Texas. Seller has full power and authority to enter
into this Agreement, to perform this Agreement and to consummate the
7.2. Seller has good and indefeasible title to the Property, subject to the
conditions of title. There are no outstanding rights of first refusal, rights of
reverter or option relating to the Property or any interest therein. To Seller’s
which affect title to the Property. Subject to the Leases, Seller has enjoyed
the continuous and uninterrupted quiet possession, use and operation of the
Property, without material complaint or objection by any person.
7.4. Seller, to the best of its actual knowledge, without further
independent investigation, except as otherwise disclosed to the Buyer in
writing, is not aware of any material physical defects to the Improvements of
the Property;
7.5. Seller, to the best of its actual knowledge without further independent
investigation, except as otherwise disclosed to the Buyer in writing, is not
aware of any of the following conditions: 1)pending or threatened litigation,
condemnation or assessment affecting the Property and 2) material environmental
hazards affecting the Property; provided, however, the parties acknowledge that
the Seller, as plaintiff, is currently involved in a lawsuit with prior tenants
that vacated Suite 190 and 200. To the extent the Buyer incurs or suffers any
liability in connection with such lawsuit, Seller shall indemnify and hold Buyer
harmless for any such liability; and this provision shall survive Closing
7.6. The warranties in Sections 7.1 through 7.5, shall survive Closing.
7.7. Covenants of Seller. Seller hereby covenants as follows:
7.7.1. At all times from the date hereof through the date of Closing, Seller
maintained by Seller on the date hereof;
7.7.2. From the date of execution of this Agreement through the date of
Closing, Seller will not enter into any new lease with respect to the Property,
Exercise of a renewal option shall be considered a new lease. Any brokerage
commission payable with respect to a new lease shall be prorated between Buyer
to the primary term of the new lease. Further, Seller will not modify any
existing Lease covering space in the Property without first obtaining the
written consent of Buyer which shall not be unreasonably withheld. Buyer shall
have five (5) business days in which to approve or disapprove of any new lease
for which it has a right to consent. Failure to respond in writing within said
time period shall be deemed to be consent;
7.7.3. From the date of execution of this Agreement through the date of
Closing, Seller shall not sell, assign, or convey any right, title or interest
Property (other than the Permitted Exceptions) without promptly discharging the
same prior to Closing;
7.7.4. Seller shall not, without Buyer’s written approval, (a) amend or
waive any right under any Contracts that will be assumed by the Buyer, or
(b) enter into any agreement of any type affecting the Property that would
survive the Closing Date;
7.7.5. Seller shall fully and timely comply with all obligations to be
performed by it under the Leases, the Contracts, and all permits, licenses,
approvals and laws, regulations and orders applicable to the Property.
7.5 Approval of Property. The consummation of the purchase and sale of the
any Leases and Contracts pertaining to the Property, the physical components of
of facts as an accurate survey, environmental report and inspection would show,
the present and future zoning ordinance, ordinances, resolutions. Buyer shall
appurtenances, access, landscaping, parking facilities, or the electrical,
mechanical, HVAC, plumbing, sewage or utility systems, facilities, or appliances
habitability, merchantability, or the fitness, suitability, or adequacy of the
restriction, or any other matter affecting the Property, except as Seller’s
warranties of the same are expressly set forth in this Agreement. EXCEPT AS
EXPRESSLY PROVIDED IN THIS AGREEMENT AND THE DEED, SELLER HAS NOT, DOES NOT, AND
WILL NOT MAKE ANY WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE PROPERTY AND
SELLER SPECIFICALLY DISCLAIMS ANY OTHER IMPLIED WARRANTIES OR WARRANTIES ARISING
CONDITION, MERCHANTABILITY, HABITABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OR
USE. FURTHERMORE, SELLER HAS NOT, DOES NOT, AND WILL NOT MAKE ANY REPRESENTATION
OR WARRANTY WITH REGARD TO COMPLIANCE WITH ANY ENVIRONMENTAL PROTECTION,
POLLUTION, OR LAND USE LAWS, RULES, REGULATIONS, ORDERS, OR REQUIREMENTS
INCLUDING, BUT NOT LIMITED TO, THOSE PERTAINING TO THE HANDLING, GENERATING,
TREATING, STORING OR DISPOSING OF ANY HAZARDOUS WASTE OR SUBSTANCE INCLUDING,
WITHOUT LIMITATION, ASBESTOS, PCB AND RADON. BUYER ACKNOWLEDGES THAT BUYER IS A
SOPHISTICATED BUYER FAMILIAR WITH THIS TYPE OF PROPERTY AND THAT, SUBJECT ONLY
TO THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT AND CLOSING DOCUMENTS,
BUYER WILL BE ACQUIRING THE PROPERTY “AS IS AND WHERE IS, WITH ALL FAULTS,” IN
ITS PRESENT STATE AND CONDITION, SUBJECT ONLY TO NORMAL WEAR AND TEAR AND BUYER
SHALL ASSUME THE RISK THAT ADVERSE MATTERS AND CONDITIONS MAY NOT HAVE BEEN
REVEALED BY BUYER’S INSPECTIONS AND INVESTIGATIONS. BUYER SHALL ALSO ACKNOWLEDGE
AND AGREE THAT THERE ARE NO ORAL AGREEMENTS, WARRANTIES OR REPRESENTATIONS,
THIRD PARTY. THE TERMS AND CONDITIONS OF THIS PARAGRAPH SHALL SURVIVE THE
CLOSING, AND NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS. SELLER
SHALL NOT BE LIABLE OR BOUND IN ANY MANNER BY ANY ORAL OR WRITTEN STATEMENTS,
SPECIFICALLY SET FORTH OR REFERRED TO IN THIS AGREEMENT.
8. Representations and Warranties of Buyer. Buyer hereby represents and
8.1. Buyer is a corporation duly organized and validly existing under the
laws of the State of California. Buyer has full power and authority to enter
indenture, agreement or instrument to which Buyer is a party. This Agreement is
The obligations of Buyer pursuant to this Agreement shall, at the option of
Buyer, be subject to the following conditions precedent:
9.1. All of the representations, warranties and agreements of Seller set
the date hereof and Closing, and Seller shall not have on or prior to closing,
failed to meet, comply with or perform in any material respect any conditions or
9.2. There shall be no change in the matters reflected in the Title
Information Documents , and there shall not exist any encumbrance or title
defect affecting the Property not described in the Title Information Documents
except for the Permitted Exceptions or matters to be satisfied at Closing.
9.3. Unless Seller receives notice from Buyer at least thirty (30) days
prior to Closing, effective as of Closing, the management agreement affecting
9.4. Seller shall have operated the Property from and after the date hereof
in substantially the same manner as prior thereto.
9.5. If any such condition is not fully satisfied by Closing, Buyer shall so
notify Seller and may terminate this Agreement by written notice to Seller
whereupon this Agreement may be canceled, upon return of the Due Diligence
Items, the Deposit shall be paid to Buyer and, thereafter, neither Seller nor
Buyer shall have any continuing obligations hereunder.
9.6. If Buyer notifies Seller of a failure to satisfy the conditions
precedent set forth in this paragraph, Seller may, within five (5) days of
receipt of Buyer’s notices agree to satisfy the condition by written notice to
Seller so satisfies such condition. If Seller fails to agree to cure or fails to
cure such condition by the Closing date, this Agreement shall be canceled and
liability hereunder.
9.7. Seller agrees to cooperate and execute such documents or instruments as
may be necessary or appropriate to allow Buyer to complete a tax-deferred
exchange pursuant to Section 1031 of the IRS Code and Seller’s cooperation in
such regard, shall be at no additional cost, expense, or liability whatsoever to
Seller, and that no additional delays in the scheduled Close of Escrow are
incurred unless mutually agreed upon by all parties to this Agreement.
In the event that the Property should be damaged by any casualty prior to the
Close of Escrow, then if the cost of repairing such damage, as estimated by an
architect or contractor retained pursuant to the mutual agreement of the
parties, is:
10.1. Less than Two Hundred Fifty Thousand Dollars ($250,000), the Close of
Escrow shall proceed as scheduled and any insurance proceeds shall be
distributed to Buyer to the extent not expended by Seller for restoration;
• r if said cost is:
10.2. Greater than Two Hundred Fifty Thousand Dollars ($250,000), then
either Seller or Buyer may elect to terminate this Agreement, in which case upon
return of the Due Diligence Items the Deposit shall be returned to Buyer and
neither party shall have any further obligation to the other except for Buyer’s
indemnification obligations under Paragraph 5.
11.1. If, before the Close of Escrow, proceedings are commenced for the
the Property which, as reasonably determined by Buyer, would render the Property
unacceptable to Buyer or unsuitable for Buyer’s intended use, Buyer shall have
the right, by giving notice to Seller within thirty (30) days after Seller gives
notice of the commencement of such proceedings to Buyer, to terminate this
Agreement, in which event this Agreement shall terminate, the Deposit shall be
other except for Buyer’s indemnification under Paragraph 5. If, before the Close
of Escrow, proceedings are commenced for the taking by exercise of the power of
eminent domain of less than such a material part of the Property, or if Buyer
has the right to terminate this Agreement pursuant to the preceding sentence but
Buyer does not exercise such right, then this Agreement shall remain in full
force and effect and, at the Close of Escrow, the condemnation award (or, if not
account of the taking shall be transferred in the same manner as title to the
Property is conveyed. Seller shall give notice to Buyer within three
(3) business days after Seller’s receiving notice of the commencement of any
12. Notices.
12.1. All notices, demands, or other communications of any type given by any
person, by United States Mail, as a registered or certified item, return receipt
requested or by telecopy or by Federal Express. Notices delivered by mail shall
be deemed given when received. Notices by telecopy or Federal Express shall be
deemed received on the business day following transmission or delivery, as the
case may be. Notices shall be given to the following addresses:
Seller: Theresa Hutton
1551 N. Tustin Ave. #200
(714) 918-9102 fax
Joseph J. McQuade, Esq.
Hirschler Fleischer
701 East Byrd Street
Richmond, VA 23219
(804) 771-9502
(804) 644-0957 fax Buyer: Adler Realty Investments, Inc.
Attn: Michael S. Adler, President
21800 Burbank Blvd., Suite 300
(818) 884-2200
(818) 884-2205 fax
Sharon Scharff Greenwald, Esq.
11911 Orsinger Lane
(210) 694-4371
(210) 1-866 –466-6432
sgreenwald@satx.rr.com
13. Remedies.
13.1. Defaults by Seller. If there is any default by Seller under this
Agreement, following notice to Seller and seven (7) days, during which period
Seller may cure the default, Buyer may, at its option, (a) declare this
Agreement terminated in which case the Deposit shall be returned to Buyer or
(b) treat this Agreement as being in full force and effect and bring an action
against Seller for specific performance.
Buyer may cure the default, then Seller may, as its sole remedy, declare this
obligations and liabilities, except any which survive termination. In the event
this Agreement is terminated due to the default of Buyer hereunder, Buyer shall
deliver to Seller, at no cost to Seller, the Due Diligence Items.
13.3. ARBITRATION OF DISPUTES. ANY CLAIM, CONTROVERSY OR DISPUTE, WHETHER
SOUNDING IN CONTRACT, STATUTE, TORT, FRAUD, MISREPRESENTATION OR OTHER LEGAL
THEORY, RELATED DIRECTLY OR INDIRECTLY TO THIS AGREEMENT, WHENEVER BROUGHT AND
WHETHER BETWEEN THE PARTIES TO THIS AGREEMENT OR BETWEEN ONE OF THE PARTIES TO
THIS AGREEMENT AND THE EMPLOYEES, AGENTS OR AFFILIATED BUSINESSES OF THE OTHER
PARTY, SHALL BE RESOLVED BY ARBITRATION AS PRESCRIBED IN THIS SECTION. THE
FEDERAL ARBITRATION ACT, 9 U.S.C. §§ 1-15, NOT STATE LAW, SHALL GOVERN THE
ARBITRABILITY OF ALL CLAIMS, AND THE DECISION OF THE ARBITRATOR AS TO
ARBITRABILITY SHALL BE FINAL.
A SINGLE ARBITRATOR WHO IS A RETIRED FEDERAL OR CALIFORNIA JUDGE SHALL CONDUCT
THE ARBITRATION UNDER THE THEN CURRENT RULES OF THE AMERICAN ARBITRATION
ASSOCIATION (THE “AAA”). THE ARBITRATOR SHALL BE SELECTED BY MUTUAL AGREEMENT ON
THE ARBITRATOR WITHIN THIRTY (30) DAYS OF WRITTEN NOTICE BY ONE PARTY TO THE
OTHER INVOKING THIS ARBITRATION PROVISION, IN ACCORDANCE WITH AAA PROCEDURES
FROM A LIST OF QUALIFIED PEOPLE MAINTAINED BY THE AAA. THE ARBITRATION SHALL BE
CONDUCTED IN SANTA ANA, CALIFORNIA AND ALL EXPEDITED PROCEDURES PRESCRIBED BY
THE AAA RULES SHALL APPLY.
THERE SHALL BE NO DISCOVERY OTHER THAN THE EXCHANGE OF INFORMATION WHICH IS
PROVIDED TO THE ARBITRATOR BY THE PARTIES. THE ARBITRATOR SHALL HAVE AUTHORITY
ONLY TO GRANT SPECIFIC PERFORMANCE AND TO ORDER OTHER EQUITABLE RELIEF AND TO
AWARD COMPENSATORY DAMAGES, BUT SHALL NOT HAVE THE AUTHORITY TO AWARD PUNITIVE
DAMAGES OR OTHER NONCOMPENSATORY DAMAGES OR ANY OTHER FORM OF RELIEF. THE
ARBITRATOR SHALL AWARD TO THE PREVAILING PARTY ITS REASONABLE ATTORNEYS’ FEES
AND COSTS AND OTHER EXPENSES INCURRED IN THE ARBITRATION, EXCEPT THE PARTIES
SHALL SHARE EQUALLY THE FEES AND EXPENSES OF THE ARBITRATOR. THE ARBITRATOR’S
DECISION AND AWARD SHALL BE FINAL AND BINDING, AND JUDGMENT ON THE AWARD
THEREOF. A LIS PENDENS MAY BE FILED BY EITHER PARTY UNTIL THE ARBITRATION IS
FINALIZED.
14. Assignment.
Buyer may assign its rights under this Agreement to an entity in which Buyer has
a significant interest.
the state in which the Property is located (the “State”). Where required for
proper interpretation, words in the singular shall include the plural; the
terms “successors and assigns” shall include the heirs, administrators,
executors, successors, and assigns, as applicable, of any party hereto.
16. Amendment.
herein or any of the obligations of the other party hereunder, but any such
waiver shall be effective only if in writing and signed by the party waiving
such conditions and obligations.
In the event it becomes necessary for either party to file a suit or arbitration
to enforce this Agreement or any provisions contained herein, the prevailing
damages, reasonable attorneys’ fees and costs of court incurred in such suit or
arbitration.
shall be binding upon the parties hereto nor affect or be effective to
survive the Closing., except as expressly limited herein.
19. Multiple Originals only; Counterparts.
Numerous Agreements may be executed by the parties hereto. Each such executed
copy shall have the full force and effect of an original executed instrument.
20. Acceptance.
Time is of the essence of this Agreement. The date of execution of this
Agreement shall be the date a fully executed Agreement is receipted by the
Escrow Holder. If the final date of any period falls upon a Saturday, Sunday, or
legal holiday under Federal law, the laws of the State or the laws of the State
of California if it is not the State, then in such event the expiration date of
or legal holiday under Federal law, the laws of the State or the State of
California if it is not the State. The use of the term “ business days” in this
Agreement shall mean Monday through Friday and shall exclude weekend days and
days falling on Federal holidays. The term “days” shall mean all days inclusive
of weekends and Federal holidays.
Buyer has contracted or entered into any agreement with any real estate broker,
party with respect to the transaction contemplated hereby, except that Seller
has contracted with (a) Transwestern Commercial Services and (b) Triple Net
Properties Realty, Inc. as its brokers and will pay any commission due to said
brokers. Each party hereby indemnifies and agrees to hold the other party
of the representation and warranty made by such party in this paragraph.
22. Exchange.
Seller reserves the right to structure the sale of the Property as a like kind
exchange pursuant to Section 1031 of the Code. In such event Seller shall have
the right to assign its interest in this Agreement to a qualified exchange
intermediary of its choosing to effect such exchange. Buyer shall sign a
customary assignment and/or notice of assignment, however, such assignment shall
at no cost or expense to Buyer and shall not otherwise affect the term of this
Agreement.
23. Operation of Property.
Seller shall continue to manage and maintain the property in its current
condition and repair until Close of Escrow. Buyer to have the right to contact
and meet with existing Tenants in order to determine their intentions regarding
remaining on the property or moving. Additionally, Buyer to have the right to
approve any new agreement or modification of any existing agreement during due
diligence and escrow period.
24. Lease Guaranty..
At Close of Escrow, Seller shall deposit in an interest-bearing account , the
sum of Four Hundred Forty-Five Thousand Two Hundred Sixty and 68/100 Dollars
($445,260.68) with the Escrow Holder. Two Hundred Forty-Five Thousand Two
Hundred Sixty and 68/Dollars ($245,260.68) of such amount represents
approximately (i) twelve months of rent (at $11,373.92 per month) and
reimbursable expenses (at $5,278.47 per month) for the 13,250 square feet
formerly occupied by the tenant The Pacesetter Corporation (“Pacesetter Space”)
and (ii) twelve months of rent (at $2,708.00 per month) and reimbursable
expenses (at $1,078.80 per month) for the 2,708 square feet formerly occupied by
the tenant Documart (“Documart Space”) (collectively, the “Rent Guaranty
Escrow”). The first month of Rent Guaranty Escrow will be disbursed to the Buyer
at the Close of Escrow and shall be reflected on the settlement statement. All
spaces subject to the Rent Guaranty Escrow and Lease Cost Escrow (defined below)
shall be collectively referred to as the “Guarantied Space”. The amounts
calculated for reimbursable expenses for the Guarantied Space are projections
and not certain. Upon the Buyer’s confirmation of budgeted expenses for the year
2006, the parties agree to either increase or decrease and adjust the Rent
Guaranty Escrow, as the case may be, by the actual amount of reimbursable
expense attributable to the Guarantied Space. Buyer covenants to use
commercially reasonable efforts to lease the Guarantied Space. If at any time a
tenant signs a lease for any portion of the Guarantied Space, upon Buyer
receiving the first month of rent under such lease, it shall provide written
notice to the Escrow Holder to release the portion of the Rent Guaranty Escrow
attributable to such square feet to Seller together with an executed copy of the
lease; provided, if a rental abatement is included in such lease, then
disbursement of the Rent Guaranty Escrow to Seller shall occur no later than the
third month from the execution date of the lease. Said notice shall provide the
exact amount that should be disbursed to Seller and the Escrow Holder may rely
on such amount to make the disbursement to Seller. On the first day of each of
calendar month after the Close of Escrow, Escrow Holder shall disburse to Buyer
from the Rent Guaranty Escrow an amount equal to the rent and reimbursable
expense allocations set forth above for each square foot of the Guarantied Space
which is not subject to a tenant lease. For purposes of determining whether a
lease has been signed with regard to a particular portion of the Guarantied
Space, Escrow Holder shall be required to receive a completely executed copy of
the lease prior to any disbursement to the Seller. In addition to the Rent
Guaranty Escrow, Seller shall pay all broker leasing commissions and tenant
finish out improvement costs in connection with the lease up of the Guarantied
Space (“Lease Cost Escrow”) and shall also escrow the amount of Two Hundred
Thousand Dollars ($200,000) with the Escrow Holder at Closing for such purpose.
On December 31, 2006, the remaining balance of the Rent Guaranty Escrow and the
Lease Cost Escrow shall be disbursed to the Buyer, and no party shall have any
further rights or liabilities relating to the Rent Guaranty Escrow and Lease
Cost Escrow. This section shall survive the Close of Escrow. The Escrow Holder
shall charge $750.00 to administrate this post-closing escrow arrangement and
the parties agree to equally share in this cost.
25.Confidentiality.
Buyer agrees that, prior to the Closing, all Property information received by
Buyer shall be kept confidential as provided in this paragraph. Without the
prior written consent of Seller, prior to the Closing, the Property information
shall not be disclosed by Buyer or its representatives, in any manner
whatsoever, in whole or in part, except (1) to Buyer’s representatives who need
to know the Property information for the purpose of evaluating the Property and
who are informed by the Buyer of the confidential nature of the Property
information and all parties that may be involved with financing the Property for
the Buyer; (2) as may be necessary for Buyer or Buyer’s representatives to
regulatory, disclosure, tax and reporting requirements; to comply with other
self-regulatory organizations having jurisdiction over Buyer or Buyer’s
representatives; to comply with regulatory or judicial processes; or to satisfy
reporting procedures and inquiries of credit rating agencies in accordance with
customary practices of Buyer or its affiliates; and (3) to prospective tenants
of the Property.
26. Offer. Buyer’s full execution and delivery to Seller of an original of
this Agreement (“Buyer’s Offer”) shall be deemed revoked at 6 p.m. C.S.T on the
date which is seven (7) business days after the date Buyer’s Offer is received
by Seller if Seller has not delivered this Agreement, fully executed by Seller,
to the Title Company within seven (7) business days after the date Buyer’s Offer
is received by Seller, and in the case of such a revocation of Buyer’s Offer,
the Title Company shall promptly refund to Buyer any and all Earnest Money
deposited with the Title Company.
1
SIGNATURE PAGE FOR
University Heights Business Park
5563 De Zavala Road
San Antonio, Texas
EXECUTED on this the 4th day of November, 2005.
SELLER:
TREIT – University Heights, LP,
a Texas limited partnership
By: TREIT-University Heights GP, LLC, a
Texas limited liability company,
its general partner
By: Triple Net Properties, LLC, a
Virginia limited liability company,
its Manager
By: /s/ JACK R. MAURER
Name: JACK R. MAURER
EXECUTED on this the 2nd day of November, 2005.
2
BUYER:
BY:_______/s/ MICHAEL S. ADLER________ _
NAME:
ITS:
MICHAEL S. ADLER
PRESIDENT
EXECUTED on this the day of , 2005.
AN ORIGINAL FULLY EXECUTED AGREEMENT WAS RECEIVED INTO ESCROW THIS DAY OF
OCTOBER, 2005 BY THE UNDERSIGNED ESCROW HOLDER ( SAID DATE REFERRED TO HEREIN AS
“OPENING OF ESCROW” OR “EFFECTIVE DATE”)
TITLE COMPANY:
CHICAGO TITLE INSURANCE COMPANY
BY:
NAME:
TITLE:
3 |
EXHIBIT 10.1
THIS AGREEMENT (the “Agreement”) is made and entered into this 5th day of March,
2019, by and between Salisbury Bank and Trust Company, a banking corporation,
located in Lakeville, CT (the “Bank”), and Peter Albero, a current employee of
INTRODUCTION
the “Insurance Policy”), with Midland National and New York Life (hereinafter
referred to as the “Insurers”), on the life of the Employee;
Employee’s designated beneficiary.
follows:
1.
Ownership
1.1.
may be.
1.2.
1
2.
Premiums.
2.1.
2.2.
3.
4.
Employee’s Interests.
4.1.
Executive Management: Pre-Retirement Death Benefit. Upon death of the Employee
while in service to the Bank, the Employee Death Benefit under this Agreement
shall be three (3) times base annual salary, not to exceed $400,000, less
$50,000. (For example: A base annual salary of $150,000 would provide for a
Death Benefit under this Agreement of: $150,000 x 3 = $450,000, reduced to
maximum of $400,000, less $50,000 = $350,000.)
4.2.
Executive Management: Post-Retirement Death Benefit. If the Employee is in
service to the Bank at the time the Employee reaches age 65, upon the death of
the Employee on or after age 65, the Employee Death Benefit under this Agreement
shall be a multiple of final base annual salary, not to exceed $400,000, less
$50,000. The multiple under this paragraph 4.2 shall be:
Age 65 through Age 71
Age 72 through Age 79
1.0 times Final Base Salary
Age 80 and After
0.5 times Final Base Salary
5.
Beneficiary
5.1.
Beneficiary Designation. The Employee’s Beneficiary designation shall be made in
Bank. Employee’s designated Beneficiary may be amended by the Employee from
time to time during the term of this Agreement. Upon the acceptance by the Bank
filed shall be cancelled. The Bank shall be entitled to rely on the last
Beneficiary Designation Form filed by the Employee and accepted by the Bank
2
5.2.
5.3.
payment amount.
5.4.
6.
Death Claims.
6.1.
6.2.
6.3.
Beneficiaries shall be paid solely by the Insurers from the proceeds of the
6.4.
Beneficiaries may be reduced or eliminated if Employee fails or refuses to take
Insurance Policy date.
7.
Termination of Agreement.
7.1.
3
(a)
(b)
(c)
involuntary); or
(d)
7.2.
7.3.
death.
8.
9.
Administration
9.1.
Administrator.
9.2.
9.3.
9.4.
4
9.5.
10.
Claims and Review Procedure
10.1.
10.2.
(a)
(b)
denial is based;
(c)
(d)
(e)
Section 10.4 hereof.
10.3.
Administrator's determination.
10.4.
5
11.
Beneficiary.
12.
13.
Waiver of Jury Trial.TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, BANK AND
EMPLOYEE HEREBY IRREVOCABLY AND EXPRESSLY WAIVE ALL RIGHT TO A TRIAL BY JURY IN
CONTEMPLATED HEREIN OR THE ACTIONS OF THE BANK IN THE NEGOTIATION,
14.
15.
16.
remaining provisions hereof.
17.
Governing Law; Venue; Service of Process. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CONNECTICUT. THIS
AGREEMENT HAS BEEN ENTERED INTO IN LITCHFIELD COUNTY, CONNECTICUT, AND IS
PERFORMABLE FOR ALL PURPOSES IN LITCHFIELD COUNTY, CONNECTICUT. THE PARTIES
HEREBY AGREE THAT ANY LAWSUIT, ACTION, OR PROCEEDING THAT IS BROUGHT (WHETHER IN
TRANSACTIONS CONTEMPLATED THEREBY, OR THE ACTIONS OF THE BANK IN THE
NEGOTIATION, ADMINISTRATION, OR ENFORCEMENT OF ANY OF THIS AGREEMENT SHALL BE
BROUGHT IN A STATE OR FEDERAL COURT OF COMPETENT
6
JURISDICTION LOCATED IN LITCHFIELD COUNTY, CONNECTICUT. EMPLOYEE HEREBY
OF PROCESS UPON IT MAY BE MADE BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT
REQUESTED AT THE ADDRESS FOR NOTICES CONTAINED IN THE SIGNATURE PAGE OF THIS
AGREEMENT.
18.
EMPLOYEE:
By: /s/ Peter Albero
Print Name: Peter Albero
7 |
Exhibit Kinder Morgan, Inc. Subsidiaries of the Registrant Kinder Morgan (Delaware), Inc. – DE Kinder Morgan G.P., Inc. – DE KMGP Services Company, Inc. – DE Kinder Morgan Management, LLC – DE Kinder Morgan Services LLC – DE Valley Operating, Inc. – CO KN Telecommunications, Inc. – CO Kinder Morgan Power Company – CO KN TransColorado, Inc. – CO Kinder Morgan Foundation (nonprofit) – CO KN Gas Gathering, Inc. – CO Canyon Creek Compression Company – IL KM International Services, Inc. – DE Kinder Morgan Michigan, LLC – DE KM Turbine Facility #6 LLC – DE Kinder Morgan Michigan Operator LLC – DE Triton Power Company LLC – DE Triton Power Michigan LLC – DE Kinder Morgan TransColorado LLC – DE Kinder Morgan TransColorado, Inc. – UT KM Insurance, Ltd. – Bermuda Kinder Morgan Illinois Pipeline LLC – DE Knight GP, Inc. – DE Knight Power Company LLC – DE NGPL HoldCo Inc. – DE KM
|
Exhibit 10.3
COHERENT, INC
And Award Agreement
PO Box 54980
5100 Patrick Henry Drive
XXXXXXXXXXX
Award Number:
XXXXXXXX
XXXXXXXXXXX
Plan:
2001
XXXXXX, XX XXXXX
ID:
XXX
Effective [ ], you have been granted [ ] shares of restricted stock under
the Coherent, Inc. Amended 2001 Stock Plan (the “Stock Plan”). Unless otherwise
defined herein, the terms defined in the Stock Plan shall have the same defined
meanings in this Notice of Grant and the attached Award Agreement. Vesting of
this Award is subject to the Company meeting or exceeding the performance goals
set forth in the achievement matrix approved by the Board of Directors, which
you have previously reviewed (the “Achievement Matrix”).
The total value of this award as of the grant date, assuming achievement of all
applicable vesting requirements, is $[ ].
Subject to your continuing as a Service Provider through the relevant vesting
dates, and subject to the Company equaling or exceeding the performance
milestones set forth in the Achievement Matrix, this award will vest in
increments up to the following amounts and on the dates shown:
Shares
Full Vest
[ ]
[ ]
[ ]
[ ]
[ ]
[ ]
Stock Plan, the Award Agreement and the Achievement Matrix. You agree to accept
as final and binding all decisions or interpretations of the Administrator upon
any questions relating to the Stock Plan and this Award.
COHERENT, INC.
Date
XXXXXXXXXXXX
Date
1
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Exhibit 10.1
AMENDMENT NUMBER SIX
TO THE
CELGENE CORPORATION
1995 NON EMPLOYEE DIRECTORS’ INCENTIVE PLAN
(AMENDED AND RESTATED AS OF JUNE 22, 1999
AND AS FURTHER AMENDED)
WHEREAS, the Celgene Corporation (the “Company”) maintains the Celgene
Corporation 1995 Non Employee Directors’ Incentive Plan, as amended and restated
as of June 22, 1999 and as further amended (the “Plan”);
WHEREAS, pursuant to Article 11 of the Plan, the Board of Directors of the
in part, any or all of the provisions of the Plan; and
WHEREAS, the Board desires to amend the Plan, effective as of June 18, 2008.
NOW, THEREFORE, pursuant to Article 11 of the Plan, the Plan is hereby amended,
effective as of June 18, 2008, as follows:
1. Section 5(d) of the Plan is amended in its entirety to read as follows:
“(d) each year on and after the Annual Meeting of Stockholders of the
Corporation held on June 12, 2007 and prior to June 18, 2008 (each, an “Annual
Meeting”), each Non Employee Director who has been elected at such Annual
Meeting and is continuing as a member of the Board as of the completion of such
Annual Meeting shall receive Options to purchase an aggregate of 18,500 shares
of Common Stock (subject to adjustment as provided in Section 9) in
substantially equal quarterly grants beginning in September, 2007; provided,
however, that a Non Employee Director who has been elected at such Annual
Annual Meeting but has not been a member of the Board during the entire period
between such Annual Meeting and the prior Annual Meeting shall receive Options
to purchase an aggregate number of shares equal to the product of (i) 18,500 and
(ii) a fraction, numerator of which is the number of days in the 12 month period
immediately preceding such Annual Meeting during which such Non Employee
Director was a Non Employee Director and the denominator is 365; and”
2. Section 5 of the Plan is amended to include a new subsection (e) to read as
follows:
“(e) each year on and after the Annual Meeting held on June 18, 2008, each Non
Employee Director who has been elected at such Annual Meeting and is continuing
as a member of the Board as of the completion of such Annual Meeting shall
receive an Option, on the date of each such Annual Meeting, to purchase 18,500
shares of Common Stock (subject to adjustment as provided in Section 9);
provided, however, that a Non Employee Director who has been elected at such
Annual Meeting and is continuing as a member of the Board as of the completion
of such Annual Meeting but has not been a member of the Board during the entire
period between such Annual Meeting and the prior Annual Meeting shall receive an
Option to purchase a number of shares of Common Stock equal to the product of
(i) 18,500 and (ii) a fraction, numerator of which is the number of days in the
12 month period immediately preceding such Annual Meeting during which such Non
Employee Director was a Non Employee Director and the denominator is 365 (the
“Annual Option”).”
3. Section 7(b) is amended by the addition of the following language at the end
thereof:
“The Annual Option granted pursuant to Section 5(e) shall vest in full on the
earlier of (i) the day preceding the date of the first Annual Meeting held
following the date of grant and (ii) the first anniversary of the date of grant
of the Annual Option, provided that, in each case, the holder thereof has been a
Non Employee Director of the Corporation at all times through such date.”
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EXHIBIT 99.3 YASHENG GROUP CHARTER OF THE CORPORATE GOVERNANCE NOMINATING COMMITTEE OF THE BOARD OF DIRECTORS This Corporate Governance and Nominating Committee Charter (the “Charter”) was adopted by the Board of Directors (the “Board”) of Yasheng Group, (the “Company”) on September, 24 2010, and shall become effective as date of October 01, 2010. I. Purpose The Board of Directors of Yasheng Group (the "Company") has formed a Corporate Governance and Nominating Committee (the "Committee") to promote the transparency of the corporation and to ensure the integrity of the corporation. This charter is meant to identify the personnel and functions of the Committee. The Committee of the Board of Directors (the “Board”) is appointed by the Board and generally serves as the principal agent of the Board in the following matters: A.Recommending and reviewing the Nominating structure for the Company’s seniorExecutives, including the Chief Executive Officer; B.Reviewing employee nominating and benefit programs; C.Developing and recommending to the Board a set of corporate governance guidelinesapplicable to the Company and to periodically review the guidelines; D.Overseeing the Board’s annual evaluation of its performance and the performance of theother Board committees; E.Advising the Board regarding membership and operations of the Board; and F.Identifying individuals qualified to serve as members of the Board, to select, subject toratification of the Board, the director nominees for the next annual meeting of shareholdersand to recommend to the Board individuals to fill vacancies on the Board. II. Membership A. Number and Independence. The Committee shall be composed of at least three directors, each of whom shall be independent. A director shall qualify as independent if the Board has affirmatively determined, consistent with the independence criteria set forth in the rules and regulations of the U.S. Securities and Exchange Commission (“SEC”) and applicable listing standards adopted by the American Stock Exchange (“AMEX”), that the director is independent. B. Appointment and Removal. The members of the Committee shall be designated and approved by a majority of the Board and shall serve one-year terms or until their successors shall be appointed, subject to such member’s earlier resignation or removal. Any member of the Committee may only be removed, with or without cause, by a majority vote of the independent directors of the full Board then in office. C. Chairperson. The Committee shall recommend, and the Board shall designate, one member of the Committee to serve as Chairperson. The Chairperson of the Committee will, in consultation with management, establish the agenda of the meetings and, where possible, circulate materials in advance to ensure sufficient time for review prior to the meeting. In the absence of the Chairperson of the Committee, the Committee may elect one of its members to act as the de facto Chairperson of that meeting. 1 III. Meetings and Procedures A. Meetings. The Committee shall meet as frequently as it may deem necessary and appropriate in its judgment. Generally, the Committee shall meet quarterly, prior to each meeting of the Board of Directors. The Committee may meet in person or by telephone. B. Quorum. A majority of the members of the Committee present in person or by means of a conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other shall constitute a quorum for the transaction of business. C. Special Meetings. The Chairperson of the Committee or a majority of the members of the Committee may call a special meeting of the Committee. D. Delegation. The Committee may delegate authority to one or more members of the Committee or one or more members of management when appropriate, but no such delegation shall be permitted if the authority is required by law, regulation or listing standard to be exercised by the Committee as a whole. E. Additional Attendees. The Committee may invite to its meetings any officer, employee or director of the Company and such other persons as it deems appropriate in order to carry out its duties. F. Minutes. The Committee shall maintain minutes or other records of meetings and activities of the Committee in accordance with California law and the Company’s By-laws, which minutes shall be maintained with the books and records of the Company. IV. Duties and Responsibilities A.Nominating and Corporate Governance Responsibilities i.Board Size and Composition Identify potential nominees to the Board by applying, among othercriteria, the criteria set forth in Appendix A hereto, review theirqualifications and experience, determine their independence as requiredunder all applicable SEC and NYSE AMEX rules and regulations, andrecommend to the Board a slate of nominees for consideration andpresentation to the shareholders at the Company’s next annual meeting.Candidates will be reviewed in the context of current composition of the Board, the operating requirements of the Company and the long-term interests of the Company’s stockholders. Inselecting the nominees, the Committee shall consider individualsrecommended by management and the Company’s shareholders. Suchrecommendations submitted by the Company’s shareholders shall besubmitted, along with the following information, to the Chairperson of theCommittee at least 120 days prior to the one year anniversary of the date on which the Company first mailed its proxy materials for the prior year’sannual meeting of shareholders:(a) the name and address of the recommending stockholder; (b) the name of the candidate and information about the candidate that would be required to be included in a proxy statement under the rules of the SEC; (c) information about the relationship between the candidate and the recommending stockholder; (d) the consent of the candidate to serve as a director; and (e) proof of the number of shares of the Company’s common stock that the recommending stockholder owns and the length of time the shares have been owned. Review and make recommendations, as the Committee deems appropriate, regarding the composition and size of the Board in order to ensure the Board has the requisite expertise and its membership consists of persons with sufficiently diverse and independent backgrounds. In fulfilling this duty, the Committee shall, as appropriate, consult with the Board. Recommend to the Board, where appropriate, the removal of a director. Recommend to the Board one member of the Board to serve as Chairperson of the Board. The Chairperson shall preside at all meetings of the Board and, in the absence of the Chief Executive Officer, at meetings of the shareholders. The director who is appointed Chairperson is appointed by at least a majority of the remaining directors and serves at the pleasure of the Board. Exercise authority to retain and terminate any search firm to be used to identify director candidates, including authority to approve the fees and other terms of such firm’s engagement. 2 ii.Board Committees Recommend to the Board the responsibilities of the Board committees, including each committee’s membership, operations, and authority to delegate to subcommittees. Evaluate and recommend to the Board those directors to be appointed to the various Board committees, including the persons recommended to serve as chairperson of each committee. In making its evaluations and recommendations, the Committee should consider: (i) the qualifications for membership on each committee; (ii) the extent to which there should be a policy of periodic rotation of directors among the committees; (iii) any limitations on the number of consecutive years a director should serve on any one committee; and (iv) the number of boards and other committees on which the directors serve. iii.Evaluation of the Board and Board Committees Oversee the periodic evaluation of the Board and the Audit and Compensation Committees and deliver reports to the Board setting forth the results of such evaluations. The Committee also shall monitor director performance throughout the year (noting particularly any directors who have had a change in their primary job responsibilities or who have assumed additional directorships since their last assessment). If any serious problems are identified, the Committee will work with the director to resolve such problems or, if necessary, recommend to the Board that it seek such director’s resignation. Periodic review and assess the performance of the Committee and deliver a report to the Board setting forth the results of its evaluation. In conducting this review, the Committee shall address matters that it considers relevant to its performance, including, at a minimum, the adequacy, appropriateness and quality of the information and recommendations presented to the Board, the manner in which they were discussed or debated, and whether the number and length of meetings of the Committee were adequate for the Committee to complete its work in a thorough and thoughtful manner. iv.Other Board Matters Recommend other corporate governance related matters for consideration by the Board, including: (i) the structure of Board meetings, including recommendations for the improvement in the conduct of such meetings, and the timeliness and adequacy of the information provided to the Board prior to such meetings; (ii) director retirement policies; (iii) director and officer insurance policy requirements; (iv) policies regarding the number of Boards on which a director may serve; and (v) director orientation and training. B.General i. Develop and periodically review and assess the adequacy of the Company’s Corporate Governance Guidelines, Code of Conduct and Ethics Policy, monitor compliance with those policies and make recommendations for changes to the Board when necessary. ii. Review on an ongoing basis all related party transactions required to be disclosed pursuant to Regulation S-K for potential conflict of interest situations and approve all such transactions. iii. Report to the Board with respect to the Committee’s activities and report to the Company’s shareholders in the annual proxy statement. iv. Consult with the CEO, as appropriate, and other Board members to assure that its decisions facilitate a sound relationship between and among the Board, Board committees, individual directors, and management. v. Review and reassess the adequacy of this Charter and the charters of each of the other standing committees of the Board annually and recommend any proposed changes to the Board for its approval. vi. Perform any other activities consistent with this Charter, the Company’s Articles of Incorporation, the Company’s By-laws and governing law as the Committee or the Board deems necessary or appropriate. C.Other Matters Nothing contained in this Charter is intended to, or should be construed as, creating any responsibility or liability of the members of the Committee except to the extent otherwise provided under California law which shall continue to set the legal standard for the conduct of the members of the Committee. 3 APPENDIX A Criteria for Director Nominees In making recommendations to the Company’s Board of nominees to serve as directors, the Committee will examine each director nominee on a case-by-case basis, regardless of who recommended the nominee, and take into account all factors it considers appropriate, which may include strength of character, mature judgment, career specialization, relevant technical skills or financial acumen, diversity of viewpoint and industry knowledge. However, the Board and the Committee believe the following minimum qualifications must be met by a director nominee to be recommended by the; Committee: Ø Each director must display high personal and professional ethics, integrity and values. Ø Each director must have the ability to exercise sound business judgment. Ø Each director must be accomplished in his or her respective field, with broad experience at the executive and/or policy-making level in business, government, education, technology or public interest. Ø Each director must have relevant expertise and experience, and be able to offer advice and guidance based on that expertise and experience. Ø Each director must be able to represent all shareholders of the Company and be committed to enhancing long-term shareholder value. Ø Each director must have sufficient time available to devote to activities of the Board and to enhance his or her knowledge of the Company’s business. The Board also believes the following qualities or skills are necessary for one or more directors to possess: Ø At least one independent director should have the requisite experience and expertise to be designated as an “audit committee financial expert” as defined by applicable SEC rules. Ø One or more of the directors generally should be active or former executive officers of public or private companies or leaders of major complex organizations, including commercial, scientific, government, educational and other similar institutions. Ø Directors should be selected so that the Board as a whole collectively possesses a broad range of skills, expertise, industry and other knowledge, and business and other experience useful to the effective oversight of the Company’s business. The Board also seeks members from diverse backgrounds so that the Board consists of members with a broad spectrum of experience and expertise and with a reputation for integrity. Directors should have experience in positions with a high degree of responsibility, be leaders in the companies or institutions with which they are affiliated, and be selected based upon contributions that they can make to the Company. 4
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Exhibit 10.1
PROMISSORY NOTE
THIS PROMISSORY NOTE is made as of the 11th day of July, 2008 by Ivanhoe Energy
Inc. (“Ivanhoe”), a company duly incorporated under the laws of the Yukon
Territory, in favour of Talisman Energy Canada, an Alberta general partnership
(“Talisman”).
FOR VALUE RECEIVED, Ivanhoe hereby acknowledges itself indebted to Talisman and
promises to pay to Talisman, its successors and permitted assigns, the principal
amount of TWELVE MILLION FIVE HUNDRED THOUSAND DOLLARS ($12,500,000) (the
“Principal Amount”) on December 31, 2008 (the “Maturity Date”), provided that
upon the occurrence of an Event of Default (as such term is defined in the Fixed
and Floating Charge Debenture (the “Debenture”) of even date granted by Ivanhoe
to Talisman) the Principal Amount and any interest accrued thereon shall be
payable on demand in accordance with Article 9 of the Debenture and in the
manner provided for herein.
All references in this Promissory Note to $ or dollars means lawful currency of
Canada.
Ivanhoe hereby promises to pay to Talisman interest on the unpaid portion of the
Principal Amount at the Prime Rate plus two per cent (2%) per annum, calculated
daily and not compounded, such interest to be payable on the earlier of the
Maturity Date or upon demand in accordance with this Promissory Note; and if
Ivanhoe should at any time default in the payment of any Principal Amount or any
interest thereon, Ivanhoe shall pay interest on the amount in default both
before and after demand, default and/or judgment at the Prime Rate plus two per
cent (2%) per annum, calculated and compounded daily until each such amount is
paid in full.
All or a portion of any outstanding Principal Amount and any and all interest
earned thereon, may be prepaid at any time without notice, bonus or penalty.
For purposes of this Promissory Note, “Prime Rate” means the rate of interest
expressed as a rate per annum that the main branch of Royal Bank of Canada uses
as a reference rate for calculating interest on dollar denominated commercial
demand loans made by such bank in Canada and that it refers to as its “prime
rate”. The interest rate payable hereunder shall vary automatically without
notice to any interested party hereto whenever there is a variation in such
rate.
This Promissory Note and all rights hereunder are not transferable by the holder
thereof except with the written consent of Ivanhoe, which consent shall not be
unreasonably withheld, provided that this Promissory Note and all rights
hereunder may be assigned to Talisman Energy Inc. or any of its direct or
indirect wholly owned subsidiaries.
before 5:00 p.m. (Calgary Time) on the next succeeding day that is a Business
Day. For purposes of this Promissory Note, a “Business Day” is a day on which
Canadian chartered banks are open for banking business in the City of Calgary.
- 2 -
The payment of Principal and any interest accrued thereon shall be made by bank
wire pursuant to wire transfer instructions provided by Talisman, unless Ivanhoe
is otherwise notified by Talisman.
Ivanhoe hereby waives grace, demand, presentment for payment, notice of
dishonour or default, protest and diligence in collecting.
Each of the provisions contained in this Promissory Note is distinct and
IN WITNESS WHEREOF Ivanhoe makes and delivers this Promissory Note as of the
IVANHOE ENERGY INC.
Authorized Signatory
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OPERATING AGREEMENT
Date: Amended and Restated on October 10, 2005, to be retroactively effective
as of January 1, 2005
Parties of the Agreement:
Party A: Chuangrun Media Company Limited (“HK Chuangrun”)
Address: #1403, 14/F United Publishing Building, King’s Road, North Point,
Hong Kong
Party B: Guangzhou Chuangrun Advertising Co. Ltd. (“GZ Chuangrun”)
Address: 168 Jiangnan Da Dao Zhong, CNOOC Building, #1211, Guangzhou, China
Party C: China Media1 Corp. (“CMDA”)
Address: 2020 Main Street, Suite 500, Irvine, California, USA
Recital:
1.
Both HK Chuangrun and GZ Chuangrun are owned by Mr. Cai Hanxiong. HK Chuangrun
has agreements with the Guangzhou New Baiyun Airport for 100 Indoor advertising
signage locations and 50 Outdoor advertising signage locations. GZ Chuangrun has
an agreement with the Guangzhou MTR for 12 station pillar wrap advertising
locations.
2.
Inan agreement dated December 26, 2004, CMDA acquired the above mentioned
contracts from Mr. Cai Hanxiong.
3.
CMDA wishes to appoint GZ Chuangrun as exclusive agent for the above mentioned
three advertising contracts, and hereby agrees to the following.
1.
The Guangzhou New Baiyun Airport agreements for 100 Indoor advertising signage
locations and 50 Outdoor advertising signage locations stay under HK Chuangrun,
but all benefits revert back to CMDA. In furtherance of the foregoing, for the
term of each of the Guangzhou New Baiyun Airport agreements:
(a) HK Chuangrun hereby assigns and transfers to CMDA all revenues generated
from the operations relating to the agreements with the Guangzhou New Baiyun
Airport for 100 Indoor advertising signage locations and 50 Outdoor advertising
signage locations (the “Airport Revenues”).
(b) CMDA shall cause to be paid from the Airport Revenues all of the
operating expenses of HK Chuangrun incurred relating to the agreements with the
Guangzhou New Baiyun Airport for 100 Indoor advertising signage locations and 50
Outdoor advertising signage locations (the “Airport Expenses”), including, but
not limited to, trade accounts payable, real property lease obligations,
employee obligations, and taxes.
(c) CMDA shall use the Airport Revenues collected to pay the Airport Expenses
until the expiration of each of the Guangzhou New Baiyun Airport agreements.
2.
The Guangzhou MTR 12 station pillar wrap agreement stays under GZ Chuangrun, but
all benefits revert back to CMDA. In furtherance of the foregoing, for the term
of Guangzhou MTR 12 station pillar wrap agreement:
(a ) GZ Chuangrun hereby assigns and transfers to CMDA all revenues generated
from the operations relating to the Guangzhou MTR 12 station pillar wrap
agreement (the “MTR Revenues”).
(b) CMDA shall cause to be paid from the MTR Revenues all of the operating
expenses of GZ Chuangrun incurred relating to the Guangzhou MTR 12 station
pillar wrap agreement (the “MTR Expenses”), including, but not limited to, trade
accounts payable, real property lease obligations, employee obligations, and
taxes.
(c) CMDA shall use the MTR Revenues collected to pay the MTR Expenses until
the expiration of the Guangzhou MTR 12 station pillar wrap agreement.
3.
GZ Chuangrun is appointed exclusive agent for all of HK Chuangrun projects and
the Guangzhou MTR project. GZ Chuangrun and HK Chuangrun will form a joint
venture in Guangzhou after CMDA has received funding, to facilitate management
of the projects.
4.
CMDA will pay the following management fees to GZ Chuangrun as compensation for
GZ Chuangrun acting as agent for CMDA. The management fee includes all daily
operating expenses, but does not include project deposits and upfront fees:
(A) 2005 January to end of December, US$ 1.5 million.
(B) 2006 January to end of December, US$ 2.0 million.
(C) 2007 and thereafter yearly January to end of December, US$ 3 million.
5.
The above management fee is payable in 12 equal monthly installments.
6.
The above management fee only includes the 100 Indoor and 50 Outdoor signs at
the Guangzhou New Baiyun International Airport and the 12 Guangzhou MTR
stations.
7.
GZ Chuangrun will implement the following commission schedule:
(A) Commission ratio for 2005:
(i) New Direct Advertising Clients 15%
(ii) Direct through Advertising Company 10%
(iii) Existing Company Clients 5%
(B) Commission ratio for 2006 and thereafter:
(i) New Direct Advertising Clients 10%
(ii) Direct through Advertising Company 5%
(iii) Existing Company Clients 3%
8.
As the Chief Executive Officer and largest shareholder of CMDA, Mr. Cai Hanxiong
will do his utmost to protect CMDA’s interest and act as guardian of this
agreement.
9.
All other matters will be decided by the board of directors of both parties.
This Agreement is amended and restated on this 10th day of October, 2005 and is
retroactively effective as of January 1, 2005.
/s/ Cai Hanxiong /s/ Cai Hanxiong
(HK Chuangrun)
(GZ Chuangrun) (Cai Hanxiong, Legal Rep.) (Cai Hanxiong, Legal Rep.)
/s/ Ernest Cheung
(China Media1 Corp.) (Ernest Cheung, Director)
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Exhibit 99.1 Westport Announces Vedder Transport Order for 50 Peterbilt LNG Trucks Powered by Westport HD Systems ~LNG Truck Order in Concert with a Refuelling Station Planned by Terasen Gas~ VANCOUVER, Dec. 21 /CNW/ - Westport Innovations Inc. (TSX:WPT / NASDAQ:WPRT), a global leader in alternative fuel, low-emissions transportation technologies, today announced that Vedder Transport Ltd. of Abbotsford, British Columbia has issued a purchase order for 50 Peterbilt 386 liquefied natural gas (LNG) trucks featuring Westport HD Systems. Vedder Transport Ltd., a division of the Vedder Transportation Group, specializes in the transportation of Food Grade products in a bulk liquid or dry state and offers dedicated and irregular route, truck load and less than truck load freight services throughout Canada, and between Canada and the United States. The new trucks, powered by Westport HD, will be used on routes within Southern British Columbia primarily servicing the Bulk Food Grade Industry such as the British Columbia Dairy Producers and other liquid or dry state world wide agricultural organizations, making Vedder Transport Ltd. one of the world's most environmentally clean transporter servicing these markets. Terasen Gas, a subsidiary of Fortis Inc., the largest distributor of natural gas in British Columbia, will fuel the Vedder Transport natural gas fleet through a planned LNG refuelling station in Abbotsford, which is expected to be built in 2011. In addition, Terasen Gas, through its Energy Efficiency and Conservation program, will offset the incremental cost of using LNG-powered trucks rather than their traditional diesel counterparts. "This is a significant order for LNG trucks in Western Canada," said Clark Quintin, President of Westport's HD division. "It further demonstrates that natural gas is rapidly becoming a mainstream fuel solution for the trucking industry in Canada. With the Province's 33% carbon reduction target by 2020, substantial commitment from Vedder Transport and Terasen Gas to operate LNG trucks is helping the Province achieve this target." "At Vedder, we are committed to protecting the environment for future generations. Adding natural gas trucks to our fleet will help us reduce transportation-related emissions, ultimately improving air quality while reducing fuel management expenses," said Fred Zweep, President of the Vedder Transportation Group. "At Terasen Gas, we pride ourselves on being a forward thinking organization committed to helping address B.C.'s climate action goals by providing innovative energy solutions such as this for the transportation sector. We are working to facilitate the use of natural gas in new ways within B.C.," said Doug Stout, Vice President, Energy Solutions and External Relations, Terasen Gas and FortisBC. "These new trucks are a further demonstration that natural gas is an economically-viable, environmentally-friendly and convenient fuel source for the transportation sector." "Peterbilt LNG trucks allow trucking fleets to move to lower-cost, domestically available natural gas while reducing harmful emissions and providing the performance that our customers need," said Arlen Savitt, Assistant General Manager at Peterbilt Motors. "We are excited to deliver an industry-leading product that will support Vedder's business and their commitment to the environment." The Westport HD System consists of the GX 15-litre engine, proprietary Westport fuel injectors, LNG fuel tanks with integrated cryogenic fuel pumps, and associated electronic components to facilitate robust performance and reliable operation. The Westport HD GX engine is certified and compliant to 2010 U.S. Environmental Protection Agency and California Air Resources Board emission limits in North America. About the Vedder Transportation Group The Vedder Transportation Group remains a family owned and operated company with its head office located in Abbotsford, BC. With its two trucking companies, Vedder Transport Ltd and Can-Am West Carriers Inc, the companies offer dedicated and irregular route highway less than truck load (ltl) and truck load (tl) specialized and general freight services throughout Canada and between Canada and the United States. The Vedder Transportation Group now operates a diverse fleet of 300 tractors and over 800 semi trailers, employing hundreds of people. www.vtlg.com About Terasen Gas Terasen Gas is composed of the operations of Terasen Gas Inc., Terasen Gas (Vancouver Island) Inc., and Terasen Gas (Whistler) Inc. Terasen Gas is a leading integrated energy solutions provider, focused on the safe and reliable provision of natural gas, propane and alternative energy solutions. Terasen Gas serves approximately 939,000 residential and commercial customers in more than 125 B.C. communities. Terasen Gas employs more than 1,280 people in British Columbia and is indirectly wholly owned by Fortis Inc., the largest investor-owned distribution utility in Canada. Fortis Inc. shares are listed on the Toronto Stock Exchange and trade under the symbol FTS. Additional information can be accessed at www.fortisinc.com or www.sedar.com. About Westport Innovations Inc. Westport Innovations Inc. is a global leader in alternative fuel, low-emissions technologies that allow engines to operate on clean-burning fuels such as compressed natural gas (CNG), liquefied natural gas (LNG), hydrogen, and biofuels such as landfill gas. Our unique technologies reduce nitrogen oxides (NOx), particulate matter (PM), and greenhouse gas emissions (GHG) while preserving the power, torque, and fuel efficiency of diesel engines. The Company focuses on three distinct categories or target markets - light-, medium-, and heavy-duty - through Westport business units or joint ventures. Juniper Engines is focused on 2.0L and 2.4L engines for industrial applications such as forklifts, oilfield service engines and light-duty automotive. Cummins Westport (CWI), a joint venture with Cummins, sells the world's broadest range of low-emissions alternative fuel engines for commercial urban fleets such as buses, refuse trucks and vocational vehicles ranging from 5.9L to 8.9L. Westport Heavy Duty (Westport HD), our proprietary development platform, is engaged in the engineering, design and marketing of natural gas-enabling technology for the heavy-duty diesel engine and truck market. To learn more about our business, visit our website or subscribe to our RSS feed at www.westport.com, or follow us on Twitter @WestportWPRT. Note: This document contains forward-looking statements, including statements regarding the demand for our products, the future success of our business and technology strategies, investment, cash and capital requirements, intentions of partners and potential customers, the performance of our products and expansion of product coverage, future market opportunities, speed of adoption of natural gas for transportation, our estimates and assumptions used in our accounting policies, accruals, and financial condition. These statements are neither promises nor guarantees, but involve known and unknown risks and uncertainties that may cause our actual results, levels of activity, performance or achievements to be materially different from any future results, levels of activities, performance or achievements expressed in or implied by these forward looking statements. These risks include risks related to our revenue growth, operating results, industry and products, the general economy, conditions of and access to the capital and debt markets, governmental policies and regulation, technology innovations, fluctuations in foreign exchange rates, the progress of clean air plans at the Port of Los Angeles and Long Beach and other global government stimulus packages, the acceptance of natural gas vehicles in fleet markets, the relaxation or waiver of fuel emission standards, the inability of fleets to access capital or government funding to purchase natural gas vehicles, the sufficiency of bio methane for use in our vehicles, the development of competing technologies as well as other risk factors that may affect our actual results, performance or achievements or financial position discussed in our most recent Annual Information Form and other filings with securities regulators. Readers should not place undue reliance on any such forward-looking statements, which speak only as of the date they were made. We disclaim any obligation to publicly update or revise such statements to reflect any change in our expectations or in events, conditions or circumstances on which any such statements may be based, or that may affect the likelihood that actual results will differ from those set forth in the forward looking statements except as required by National Instrument 51-102. %CIK: 0001370416 For further information: Darren Seed Vice President, Investor Relations & Communications Westport Innovations Inc. Phone: 604-718-2046 Email: invest@westport.com Michelle Doyle Personal Assistant Vedder Transportation Group Phone: 604-857-1375 Email: mdoyle@vtlg.com Visit us at: www.vtlg.com Marcus Wong Corporate Communications Manager Terasen Gas Phone: 778-571-3263 Email: marcus.wong@terasengas.com Follow us at: www.twitter.com/terasengas CO: Westport Innovations Inc. CNW 08:00e 21-DEC-10
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Exhibit 10.3
AMENDMENT NUMBER 2 TO THE
This AMENDMENT NUMBER 2 (the “Data Privacy Amendment”), effective as of
October 31, 2007 (“Amendment Effective Date”) is made and entered into by and
between TCS and Nielsen and modifies the AMENDED AND RESTATED MASTER SERVICES
AGREEMENT, dated as of October 1, 2007, between TCS and Nielsen (the
PRELIMINARY STATEMENT
The Parties have agreed to amend and supplement certain of the terms,
conditions, rights and obligations of the Parties under the Agreement with
regard to data privacy and data protection pursuant to the provisions of this
Data Privacy Amendment.
A. DATA PRIVACY
The Parties agree to insert the following provisions of this Section A between
Section 14 (DATA OWNERSHIP, PROTECTION AND RETURN OF DATA) of the Agreement and
Section 15 (CONSENTS) of the Agreement as a new Section 14A (DATA PRIVACY) of
the Agreement:
“Section 14A DATA PRIVACY
In performing the Services, TCS will comply with the requirements of this
“Section 14A.
14A.1 Data Privacy Rules, Generally
(a) “Data Privacy Rules” means the following:
(i) all Laws applicable to Nielsen and the Nielsen Regulatory Requirements
regarding personal data privacy and data protection rights (including breach
notification requirements) with respect to Personally Identifiable Information
held and/or controlled by Nielsen and its Affiliates, including personal data
relating to employees, customers, consumers, panelists, survey respondents, and
other individuals. Such Laws and Nielsen Regulatory Requirements include:
(A) the Gramm-Leach Bliley Act and its effective implementing rules and
regulations (“GLB Act”); (B) the Health Insurance Portability and Accountability
Act of 1996 and its effective implementing rules and regulations (“HIPAA”) and
analogous state laws; (C) the Canadian Privacy Legislation and its effective
implementing rules and regulations; and (D) legislation implementing the
European Directive 95/46/EC on the protection of individuals with regard to the
processing of personal data and on the free movement of such data (the “EU Data
Protection Directive” or the “Directive”) and analogous legislation in European
countries not part of the European Union (collectively “EU Privacy Laws”); and
1
(ii) the provisions of this Agreement that address TCS’ obligations regarding
data privacy and data protection, including Section 5.6, Section 14, this
Section 14A, Section 16, Section 20, and Schedule G to this Agreement.
(b) General Requirements.
(i) TCS and Nielsen will comply, and will support the other Party in complying,
with all relevant provisions of Data Privacy Rules.
(ii) TCS will observe, comply with, and perform the Services in a manner
consistent with, the Data Privacy Rules.
(iii) TCS will cause those TCS Affiliates and Approved Subcontractors performing
the Services to comply with the obligations of TCS provided in this “Section
14A.
(iv) Except as provided in Section 14A.1(c), TCS will meet the requirements of
this “Section 14A at no additional charge to Nielsen.
(v) If TCS suspects or becomes aware of any breach of the Data Privacy Rules,
TCS will promptly notify Nielsen and will cooperate with Nielsen to investigate,
mitigate, rectify and respond to such breach.
(vi) Upon Nielsen’s request, TCS will provide to Nielsen certifications (whether
self-certifications or, on an Out-of-Pocket Expense basis, third party
certifications, as Nielsen reasonably requests) that demonstrate TCS’ compliance
with the Data Privacy Rules.
(vii) Nielsen will have the right to screen and approve all TCS Personnel who
might have access to the Personally Identifiable Information that is the subject
of the Data Privacy Rules.
(viii) Nothing in this Agreement will be deemed to prevent Nielsen from taking
the steps it deems necessary to comply with the Data Privacy Rules.
(ix) The obligations provided in this “Section 14A will survive the termination
(c) Changes to the Data Privacy Rules.
(i) Statutory and Regulatory Changes. If during the Initial Term or a Renewal
Period a change is made to any Laws or Nielsen Regulatory Requirements described
in Section 14A.1(a), or a new Law or Nielsen Regulatory Requirement is
implemented that affects any of the Parties’ rights and obligations regarding
data protection and data privacy in this Agreement, TCS will comply with such
changed or new Law or Nielsen Regulatory Requirement in accordance with the
provisions of Section 20.8.
2
(ii) Change Control Procedure. TCS will perform the Services in compliance with
any additional or revised Nielsen standards, policies and requirements disclosed
to TCS from time to time relating to the Data Privacy Rules, whether or not
additions or revisions arise from changed or new Laws or Nielsen Regulatory
Requirements (such as those relating to information security, or instructions
from Nielsen or any Nielsen Affiliate in connection with a signed EU Model
Contract), subject to application of the Change Control Procedure to the extent
TCS reasonably demonstrates that such standards, policies, requirements and
instructions impose material incremental costs upon TCS in excess of those that
would otherwise be necessary for TCS to comply with its obligations under this
Agreement.
14A.2 EU Privacy Laws.
Without limiting the generality of Section 14A.1, TCS will comply with the
obligations provided in this Section 14A.2 regarding applicable EU Privacy Laws.
(a) Definitions. The following non-capitalized terms used in Section 14A.2 will
have the meanings given to them in the EU Privacy Laws: “controller”; “data
exporter”; “data importer”; “data subject”; “personal data”; “processing” (and
“processed” will be construed accordingly); and “processor”. In addition:
(i) “EU Model Contract” means a contract between the applicable data importer
and the applicable data exporter, which contract will include the standard
contractual clauses provided or approved by the applicable European Union or
implementing country authorities governing the transfer and processing of
personal data outside of the European Union. As of the Agreement Effective Date,
such standard contractual clauses are those provided in the annex to Decision
2002/16/EC of the European Commission dated December 27, 2001 for the transfer
of personal data to processors established in third countries; and
(ii) “Nielsen Personal Data” means personal data that is processed by or on
behalf of TCS in performing the Services, including personal data relating to
the employees, customers, consumers, panelists, and survey respondents of
Nielsen and its Affiliates, and/or which is made available directly or
indirectly to TCS by Nielsen or Nielsen Affiliates.
(b) Compliance with EU Privacy Laws. Nielsen and TCS will each comply, and will
support the other Party in complying, with their respective obligations under
the EU Privacy Laws, including maintaining all necessary notifications or
registrations that may be required.
3
(c) The Parties’ Roles. The Parties agree that:
(i) Nielsen Solely Responsible. Nielsen is solely responsible for determining
the purposes for which and the manner in which Nielsen Personal Data are, or are
to be, processed under this Agreement in the course of TCS performing the
Services; TCS will only process Nielsen Personal Data in accordance with written
instructions given by Nielsen and in accordance with this Agreement; and
(ii) Controller and Processor. Nielsen will be the data “controller” with
respect to all Nielsen Personal Data and TCS will be the data “processor” with
respect to all Nielsen Personal Data.
(d) TCS’ Obligations.
(i) General. In a manner that conforms to any time limits provided in applicable
EU Privacy Laws, and in any event as soon as reasonably practicable, TCS will
comply with any written request to provide reasonable assistance to Nielsen as
necessary to allow Nielsen to comply with EU Privacy Laws.
(ii) Nielsen Consent for Transfers. Where TCS intends to transfer any Nielsen
Personal Data either (A) to third parties (including TCS Affiliates and Approved
Subcontractors), or (B) across any country’s border (except to countries or
territories within the European Union or to a country that the European
Commission has found to ensure an adequate level of protection within the
meaning of Article 25(2) of the Directive), TCS will obtain Nielsen’s prior
written consent, which Nielsen may withhold in its sole discretion. Nielsen may
grant such consent subject to any conditions Nielsen deems appropriate, and any
such transfer of Nielsen Personal Data will in any event be subject to TCS’
compliance with the applicable provisions of Section 14A.2(f).
(iii) Other TCS Obligations.
(A) TCS will promptly notify Nielsen in writing if TCS: (1) receives any
complaints about the processing of Nielsen Personal Data from third parties
(including data subjects); or (2) receives, or becomes aware of, any allegation
by any relevant EU privacy or information commissioner (or any corresponding
supervisory authority) that Nielsen or TCS is not complying with the EU Privacy
Laws; and in each such case, TCS will not make any admissions, or take any
action, which may be prejudicial to the defense or settlement of any such
complaint or allegation and will provide to Nielsen such reasonable assistance
as it may require in connection with such complaint.
(B) Nielsen in any event will ensure that any Nielsen Personal Data it provides
to TCS or requires TCS to obtain on Nielsen’s behalf in relation to this
Agreement can be lawfully processed in the manner contemplated by this
Agreement.
4
(e) Article 17 of the Directive. TCS agrees that with respect to Nielsen
Personal Data TCS is obligated to comply with applicable legislation
implementing Article 17 of the Directive, including the following obligations:
(i) Technical and Organization Measures. Take appropriate technical and
organizational measures (including in accordance with the requirements of this
Agreement) to safeguard against: (A) unauthorized accesses to, and unlawful
processing of, Nielsen Personal Data; (B) accidental loss, misuse or destruction
of, or damage to, Nielsen Personal Data; and (C) unauthorized disclosure of
Nielsen Personal Data;
(ii) Written Instructions. Only process Nielsen Personal Data in accordance with
written instructions given by Nielsen, including as provided in this Agreement;
(iii) Reliability of Third Parties and of Personnel. Take reasonable steps to
ensure the reliability of those third parties (including TCS Affiliates and
Approved Subcontractors) that, and those TCS Personnel who, have access to
Nielsen Personal Data; and
(iv) Training. Ensure that all TCS Personnel involved in processing Nielsen
Personal Data have undergone (and on an ongoing basis continue to undergo)
reasonably adequate training in the care and handling of personal data generally
and Nielsen Personal Data in particular.
(f) Transfers to Third Parties. Where TCS intends to transfer any Nielsen
Personal Data to any third party (including TCS Affiliates and Approved
Subcontractors), the following provisions will apply:
(i) Transfers to Third Parties Within the European Union and Certain Other
Countries. If such transfer is to a third party providing some portion of the
Services within the European Union (or where a third party is providing some
portion of the Services from a country that the European Commission has found to
ensure an adequate level of protection within the meaning of Article 25(2) of
the Directive), TCS will ensure that no transfer takes place until such time as
TCS has concluded a subcontract (or intra-group arrangement) with the relevant
third party, which subcontract (or intra-group arrangement) includes provisions
to protect such Nielsen Personal Data that are substantially equivalent to those
set forth in this Section 14A; or
(ii) Transfers to Third Parties Outside the European Union. If such transfer is
to a third party providing some portion of the Services from outside the
European Union (except where such third party is providing some portion of the
Services from a country that the European Commission has found to ensure an
adequate level of protection within the meaning of Article 25(2) of the
Directive), TCS will ensure that no such transfer takes place until such time as
TCS has:
(A) caused the relevant third party to enter into an EU Model Contract with
Nielsen and/or with any Nielsen Affiliate(s) designated by Nielsen (pursuant to
which the relevant third party will be the data importer and Nielsen and/or the
applicable Nielsen Affiliate will be the data exporter); and
5
(B) concluded a subcontract (or intra-group arrangement) with the relevant third
party, which subcontract (or intra-group arrangement) will include obligations
for such third party with respect to (1) its ability to process Nielsen Personal
Data; and (2) its obligations with regard to legislation implementing Article 17
of the Directive, which will be substantially equivalent to those provided in
Section 14A.2(e).
In addition, prior to the transfer of any Nielsen Personal Data outside the
European Union (or a country that the European Commission has found to ensure an
Directive) for processing, the Parties will take such steps as may be necessary
to comply with the requirements and time limits provided in applicable EU
Privacy Laws of the relevant country or territory, including by lodging a copy
of any EU Model Contract with, or seeking any permits or licenses from, the
relevant privacy or information commissioner (or any corresponding government
office or agency) in the applicable jurisdiction.”
B. OTHER AMENDMENTS TO THE AGREEMENT
1. Defined Terms
Terms used with initial capitalization in this Amendment and not otherwise
defined herein shall have the meaning provided in the Agreement.
2.1. The following definitions shall be added into Section 1.5 of the Agreement,
preserving the alphabetical order of such Section, and the numbering of the
existing definitions shall be adjusted accordingly:
(a) “Data Privacy Rules” has the meaning provided in Section 14A.1(a)(i).
(b) “EU Data Protection Directive” or “Directive” has the meaning provided in
Section 14A.1(a)(i).
(c) “EU Model Contract” has the meaning provided in Section 14A.2(a)(i).
(d) “EU Privacy Laws” has the meaning provided in Section 14A.1(a)(i).
(e) “GLB Act” has the meaning provided in Section 14A.1(a)(i).
(f) “HIPAA” has the meaning provided in Section 14A.1(a)(i).
(g) “Nielsen Personal Data” has the meaning provided in Section 14A.2(a)(ii).
6
2.2 The existing definitions of Canadian Privacy Legislation and Personally
Identifiable Information in Section 1.5 of the Agreement shall be deleted in
(a) “Canadian Privacy Legislation” shall mean the Personal Information
Protection and Electronics Documents Act, S.C. 2001, c-5, and any analogous
provincial laws, including the Act Respecting the Protection of Personal
Information in the Private Sector, R.S.Q. c. P-39.1, the Personal Information
Protection Act, S.B.C. 2003, c-63, the Personal Information Protection Act,
R.S.A., c. P-65, and any similar legislation applicable in Canada.
(b) “Personally Identifiable Information” means any information that relates to
a specific, identifiable individual, and any information that otherwise is
defined as “personal information” or “personal data” (or an equivalent term)
under Laws regarding personal data privacy and data protection (including the EU
Data Protection Directive), regardless of whether such Laws apply to such
information.
3. Section 14 (Ownership of Nielsen Data)
3.1 The second sentence of Section 14.1(a) of the Agreement shall be amended by
inserting the phrase “Regardless of whether the Nielsen Data has been
de-identified or de-personalized,” at the beginning of such sentence.
3.2 Section 14.1(b) of the Agreement shall be amended by inserting the word
“misuse” between the words “loss” and “theft” in the second and fourth lines of
such Section.
3.3 Section 14.1(d) of the Agreement shall be amended by inserting the phrase
“Regardless of whether the Nielsen Data has been de-identified or
de-personalized,” at the beginning of such Section.
3.4 Section 14.3 of the Agreement shall be amended by inserting the word
“misuse” between the words “destruction” and “loss”.
4. Section 23 (Confidentiality)
4.1 Section 23.1(d) of the Agreement shall be deleted in its entirety and
“(d) Personally Identifiable Information of Nielsen employees, customers,
consumers, panelists and survey respondents; and”
4.2 The last sentence of Section 23.1 of the Agreement shall be amended by
adding the parenthetical “(even if de-identified or de-personalized)” at the end
of such sentence.
4.3 Section 23.4 of the Agreement is amended by adding the following sentence as
the final paragraph of such Section, which paragraph shall not be numbered:
“The foregoing does not relieve TCS of its obligations under Section 14A.”
7
5. Section 31 (Miscellaneous Provisions)
Section 31.9 of the Agreement shall be amended by adding the phrase “Section 14A
(Data Privacy)” between the phrases “Section 14 (Data Ownership, Protection and
Return of Data)” and “Section 17.4 (Payment Upon Termination or Expiration)”.
8
All other provisions of the Agreement shall continue to be in full force and
effect. In case of a conflict between the provisions of this Data Privacy
Amendment and the Agreement, the provisions of this Data Privacy Amendment shall
control.
IN WITNESS WHEREOF, the Parties have each caused this Agreement to be signed and
ACNIELSEN (US), INC. TATA AMERICA INTERNATIONAL CORPORATION By: /s/
Michael E. Elias By: /s/ Satyanarayan S. Hegde Name: Michael E. Elias
Name: Satyanarayan S. Hegde Title: V.P. Title: General Counsel &
Senior Vice President TATA CONSULTANCY SERVICES LIMITED By: /s/
Satyanarayan S. Hegde Name: Satyanarayan S. Hegde Title: General
Counsel & Senior Vice President
9 |
Exhibit 10.82
STOCK UNIT GRANT NOTICE
Participant:
Date of Grant:
Vesting Commencement Date:
%%VEST_BASE_DATE,'MM/DD/YYYY'%-%
Number of Stock Units
Subject to Award:
Vesting Schedule:
Subject to Section 2 of the Stock Unit Agreement, the Award shall vest on the
below vesting date(s). Notwithstanding the following, vesting shall terminate
upon the Participant’s Termination of Employment.
%%VEST_DATE_PERIOD2,'MM/DD/YYYY'%-%
%%VEST_DATE_PERIOD3,'MM/DD/YYYY'%-%
%%VEST_DATE_PERIOD4,'MM/DD/YYYY'%-%
Consideration:
Participant’s Services
Issuance Schedule:
Unit Agreement.
of the Award in an amount determined in accordance with Section 11(b) of the
sale to the Company as more specifically set forth in Section 11(b) of the Stock
warrants that (i) Participant has carefully reviewed Section 11(b) of the Stock
it is Participant’s intent that this election to Sell to Cover and Section 11(b)
Section 11(b) of the Stock Unit Agreement) to permit Participant to conduct a
specifically set forth in Section 11(b) of the Stock Unit Agreement.
Agreement (including the provisions of Section 11(b) thereof with respect to the
the exception of any arrangement that would provide for vesting acceleration of
the Award upon the terms and conditions set forth therein.
President & CEO
STOCK UNIT AGREEMENT
of the Award.
you fail to accept the Award prior to the vesting dates set forth in the Grant
Notice, the portion of the Award that otherwise would have vested on each such
date will be forfeited at no cost to the Company, and you will have no further
right, title or interest in such portion. In the event of your Termination of
Employment as a result of your death or Disability prior to acceptance of the
Award, the Company will deem the Award as being accepted.
Plan.
this Agreement.
Obligation (as defined in Section 11(a) hereof) by withholding shares of Common
this Award pursuant to Section 11 hereof, (y) not to permit you to then effect a
Sell to Cover under the 10b5-1 Plan (as defined in Section 11(b) of this
applicable vesting date.
satisfied pursuant to this Section 11(b) to the fullest extent not otherwise
satisfied pursuant to the provisions of Section 11(c) hereof and (ii) further
not otherwise satisfied pursuant to Section 11(c) hereof and (B) all applicable
respect thereto;
Section 11(b) to sell Common Stock to satisfy the Withholding Obligation is
this Section 11(b), collectively, the “10b5-1 Plan”). You acknowledge that by
Common Stock that must be sold pursuant to Section 11(b)(i) to satisfy your
obligations hereunder.
those amounts specified in Section 11(b)(i)(1) above.
beneficiary of this Section 11(b) and the terms of this 10b5-1 Plan.
satisfied.
provided for under Section 11(b), you authorize the Company, at its discretion,
Obligation in cash;
Stock.
15. CLAWBACK/RECOUPMENT. The Award will be subject to recoupment, rescission,
16. MISCELLANEOUS.
Award.
Company.
lawful and valid.
benefit plans.
rights hereunder may be made without your written consent. Without limiting the
|
Exhibit 10.20
EXECUTION VERSION
ABL SUBSIDIARIES GUARANTY
ABL SUBSIDIARIES GUARANTY, dated as of October 20, 2016 (as amended, restated,
“Guaranty”), made by each of the undersigned guarantors (each a “Guarantor” and,
Section 26 hereof, the “Guarantors”). Except as otherwise defined herein,
WHEREAS, Shay Intermediate Holding II Corporation, a Delaware corporation
(“Holdings”), PAE Holding Corporation, a Delaware corporation (the “Lead
Borrower”), the other borrowers party thereto (each, a “Subsidiary Borrower” and
together with the Lead Borrower, the “Borrowers”), the lenders party thereto
Agent”), collateral agent (together with any successor collateral agent, the
“Collateral Agent”), Issuing Bank and Swingline Lender, Bank of America, N.A.,
Citizens Bank, National Association, SunTrust Robinson Humphrey, Inc. and Morgan
Stanley Senior Funding, Inc., as Joint Lead Arrangers and Bookrunners, and Bank
of America, N.A., Citizens Bank, National Association, SunTrust Bank and Morgan
Stanley Senior Funding, Inc., as Co-Documentation Agents and Co-Syndication
Agents, have entered into a Revolving Credit Agreement, dated as of October 20,
“Credit Agreement”), providing for the making of Revolving Loans to, and the
issuance of Letters of Credit on behalf of, the Borrowers, as contemplated
therein (the Lenders, each Issuing Bank, the Swingline Lender, the
Administrative Agent, the Collateral Agent and each other Agent are herein
WHEREAS, the Lead Borrower and/or one or more of its Subsidiaries may at any
time and from time to time enter into one or more Secured Bank Product
Obligations with Secured Bank Product Providers (such Secured Bank Product
Providers, if any, collectively, the “Other Creditors” and, together with the
WHEREAS, it is a condition to the making of Revolving Loans to, and the issuance
of Letters of Credit on behalf of, the Borrowers under the Credit Agreement that
each Guarantor shall have executed and delivered this Guaranty; and
WHEREAS, each Guarantor will obtain benefits from the incurrence of Revolving
Loans by, and the issuance of Letters of Credit to, the Borrowers under the
Credit Agreement and the entering into by the Lead Borrower and/or one or more
of its Subsidiaries of Secured Bank Product Obligations with the Other Creditors
and, accordingly, desires to execute this Guaranty in order to satisfy the
follows:
of (x) the unpaid principal of, premium, if any, and interest on the Notes
issued by, and the Revolving Loans made to, and the Letters of Credit issued to,
the Borrowers under the Credit Agreement and (y) all other obligations
each Borrower to the Lender Creditors under the Credit Agreement and each other
limitation, indemnities, Fees and interest thereon (including, in each case, any
interest, fees, and other amounts accruing after the commencement of any
for in the Credit Agreement, whether or not such interest, fees and other
amounts is an allowed claim or allowable claim in any such proceeding)), whether
the Credit Agreement and each such other Credit Document and the due performance
and compliance by each Borrower with all of the terms, conditions and agreements
contained in all such Credit Documents (all such principal, premium, interest,
reimbursement obligations, liabilities, indebtedness and obligations being
Bankruptcy Code, would become due), liabilities and indebtedness (including, in
each case, any interest accruing after the commencement of any bankruptcy,
agreement governing the respective Secured Bank Product Obligations whether or
not such interest is an allowed claim in any such proceeding) owing by the Lead
Borrower and/or one or more of its Subsidiaries under any Secured Bank Product
Obligations, whether now in existence or hereafter arising, and the due
performance and compliance by such Borrower and such Subsidiaries with all of
the terms, conditions and agreements contained in each agreement governing the
Secured Bank Product Obligations to which it is a party (all such obligations,
liabilities and indebtedness being herein collectively called the “Other
Obligations” and, together with the Credit Document Obligations, the “Guaranteed
Obligations”); provided, that the “Guaranteed Obligations”, with respect to any
Guarantor, shall exclude any Excluded Swap Obligations with respect to such
Guarantor. As used herein, the term “Guaranteed Party” shall mean each Borrower
and/or each Subsidiary thereof party to any agreement governing any Secured Bank
Product Obligations with the applicable Other Creditor. Each Guarantor
understands, agrees and confirms that the Secured Creditors may enforce this
Guaranty up to the full amount of the Guaranteed Obligations against such
Guarantor without proceeding against any other Guarantor, the Borrowers, any
other Guaranteed Party, against any security for the Guaranteed Obligations, or
Obligations.
-2-
irrevocably guarantees the payment of any and all of its Guaranteed Obligations
whether or not due or payable by any Borrower or any such other Guaranteed Party
upon the occurrence in respect of any Borrower or any such other Guaranteed
Party of any of the events specified in Section 11.05 of the Credit Agreement,
and unconditionally and irrevocably, jointly and severally, promises to pay such
Guaranteed Obligations to the Secured Creditors, or order, on demand, in lawful
money of the United States. This Guaranty shall constitute a guaranty of
or other guaranty of the Guaranteed Obligations, whether executed by such
Guarantor, any other Guarantor, any other guarantor or by any other party, and,
to the fullest extent permitted under law, the liability of each Guarantor
hereunder shall not be affected or impaired by: (a) any direction as to
(other than payment of the Guaranteed Obligations in cash), (d) any dissolution,
termination or increase, decrease or change in personnel by any Borrower or any
other Guaranteed Party, (e) any payment made to any Secured Creditor on the
Guaranteed Obligations which any Secured Creditor repays pursuant to court order
(f) any action or inaction by the Secured Creditors as contemplated in Section 6
hereof or (g) any invalidity, irregularity or unenforceability of all or any
part of the Guaranteed Obligations or of any security therefor.
obligations of any other Guarantor, any other guarantor, any Borrower or any
other Guarantor, any other guarantor, any Borrower or any other Guaranteed Party
and whether or not any other Guarantor, any other guarantor, any Borrower or any
payment by any Borrower or any other Guaranteed Party or other circumstance
which operates to toll any statute of limitations as to any Borrower or any such
other Guaranteed Party shall operate to toll the statute of limitations as to
each Guarantor.
5. To the fullest extent permitted under applicable law, each Guarantor hereby
waives notice of acceptance of this Guaranty and notice of any liability to
such Guarantor, any other Guarantor, any other guarantor, any Borrower or any
other Guaranteed Party).
-3-
(including any increase or decrease in the rate of interest or fees thereon or
the principal amount thereof), any security therefor, or any liability incurred
guarantors, any Borrower, any other Guaranteed Party, or other obligors;
unpaid;
any agreement governing any of the Secured Bank Product Obligations, the Credit
otherwise amend, modify or supplement any agreement governing any of the Secured
Bank Product Obligations and the Credit Documents or any of such other
instruments or agreements;
-4-
common law, give rise to a legal or equitable discharge of such Guarantor from
its liabilities under this Guaranty.
inquire into the capacity or powers of any Borrower or any other Guaranteed
Party or the officers, directors, partners or agents acting or purporting to act
on its or their behalf, and any Guaranteed Obligations made or created in
hereunder.
8. Any indebtedness of any Borrower or any other Guaranteed Party now or
hereafter owing to any Guarantor is hereby subordinated to the Guaranteed
Obligations of such Borrower or such other Guaranteed Party to the Secured
Creditors, and such Guaranteed Obligations of such Borrower or such other
Guaranteed Party to any Guarantor, if the Administrative Agent or the Collateral
benefit of the Secured Creditors and be paid over to the Secured Creditors on
account of the Guaranteed Obligations of such Borrower or such other Guaranteed
Guaranty. Without limiting the generality of the foregoing, each Guarantor
hereby agrees with the Secured Creditors that it will not exercise any right of
(i) proceed against any Borrower, any other Guaranteed Party, any other
Creditors’ power whatsoever. Each Guarantor waives any defense (except as shall
be required by applicable statute and cannot be waived) based on or arising out
of any defense of any Borrower, any other Guaranteed Party, any other Guarantor,
any other guarantor of the Guaranteed Obligations or any other party other than
payment in full of the Guaranteed Obligations including, without limitation, any
Guaranteed Party, any other Guarantor, any other guarantor of the
-5-
Guaranteed Obligations or any other party, or the invalidity, illegality or
other Guaranteed Party other than payment in full of the Guaranteed Obligations.
The Secured Creditors may, at their election, foreclose on any security held by
the Administrative Agent, the Collateral Agent or the other Secured Creditors by
have against any Borrower, any other Guaranteed Party or any other party, or any
paid in full. Each Guarantor waives, to the fullest extent permitted under law,
or subrogation or other right or remedy of such Guarantor against any Borrower,
or incurring of new or additional Guaranteed Obligations. Each Guarantor assumes
all responsibility for being and keeping itself informed of the Borrowers’ and
each other Guaranteed Party’s financial condition and assets, and of all other
or risks.
10. The Secured Creditors agree that this Guaranty may be enforced only by the
action of the Administrative Agent or the Collateral Agent, in each case acting
majority of the outstanding Other Obligations) and that no other Secured
the benefit of the Secured Creditors upon the terms of this Guaranty. The
Secured Creditors further agree that this Guaranty may not be enforced against
any director, officer, employee, partner, member or stockholder of any Guarantor
(except to the extent such partner, member or stockholder is also a Guarantor
hereunder).
-6-
11. In order to induce the Lenders to make Revolving Loans to, and issue Letters
of Credit on behalf of, the Borrowers pursuant to the Credit Agreement, and in
order to induce the Other Creditors to execute and deliver any agreement
governing the Secured Bank Product Obligations and to perform the Secured Bank
Product Obligations to which they are a party, each Guarantor represents,
unlimited liability company power and authority, as the case may be, to own its
requires such qualification except, in the case of clauses (ii) and (iii)
hereof, except for failures to be so qualified which, either individually or in
Material Adverse Effect.
(b) Such Guarantor has the corporate, partnership, limited liability company or
deliver and perform the terms and provisions of this Guaranty and each other
Credit Document to which it is a party and has taken all necessary corporate,
partnership, limited liability company or unlimited liability company action, as
the case may be, to authorize the execution, delivery and performance by it of
this Guaranty and each such other Credit Document. Such Guarantor has duly
is a party, and this Guaranty and each such other Credit Document constitutes
the legal, valid and binding obligation of such Guarantor enforceable in
at law).
property or assets of such Guarantor or any of its Restricted Subsidiaries
each case to which such Guarantor or any of its Restricted Subsidiaries is a
have a Material Adverse Effect) or (iii) violate any provision of the
as applicable, of such Guarantor or any of its Restricted Subsidiaries.
-7-
required to be obtained or made by, or on behalf of, any Guarantor to authorize,
connection with, the execution, delivery and performance of this Guaranty by
knowledge, threatened (i) with respect to this Guaranty or any other Credit
Guarantor or any of its Restricted Subsidiaries that, either individually or in
Adverse Effect.
12. Each Guarantor covenants and agrees that on and after the Closing Date and
until the Termination Date (as defined below), such Guarantor will comply, and
will cause each of its Restricted Subsidiaries to comply, with all of the
applicable provisions, covenants and agreements contained in Articles 9 and 10
not in violation of any provision, covenant or agreement contained in Articles 9
caused by the actions of such Guarantor or any of its Restricted Subsidiaries.
Aggregate Commitments under the Credit Agreement have been terminated and all
Obligations have been paid in full, no Note under the Credit Agreement is
outstanding and all Revolving Loans and LC Disbursements thereunder have been
repaid in full (other than (x) contingent indemnification obligations,
(y) Letters of Credit which have been Cash Collateralized or backstopped on
terms reasonably satisfactory to the Administrative Agent and (z) obligations
and liabilities under any agreement governing the Secured Bank Product
Obligations not then due and payable pursuant to Section 11.11 of the Credit
Agreement).
connection with the enforcement of this Guaranty and in connection with any
amendment, waiver or consent relating hereto, in each case, in accordance with
the terms and provisions of Section 13.01 of the Credit Agreement.
Required Lenders (or, to the extent required
-8-
by Section 13.12 of the Credit Agreement, with the written consent of each
Lender) at all times prior to the time at which all Credit Document Obligations
outstanding Other Obligations at all times after the time on which all Credit
Document Obligations have been paid in full; provided, that any change, waiver,
modification or variance affecting the rights and benefits of a single Class (as
defined below) of Secured Creditors (and not all Secured Creditors in a like or
similar manner) shall also require the written consent of the Requisite
Creditors (as defined below) of such Class of Secured Creditors (it being
understood that the addition or release of any Guarantor hereunder in accordance
with the terms hereof or the Credit Agreement shall not constitute a change,
waiver, discharge or termination affecting any Guarantor other than the
Guarantor so added or released and shall not require the consent of any Secured
Creditor other than the Administrative Agent). For the purpose of this Guaranty,
(y) the Other Creditors as the holders of the Other Obligations. For the purpose
to the extent required by Section 13.12 of the Credit Agreement, each Lender)
majority of all obligations outstanding from time to time under the Secured Bank
Product Obligations.
the Credit Documents and each agreement governing the Secured Bank Product
Obligations has been made available to such Guarantor.
17. Subject, in each case, to the limitations set forth in Section 13.02(b) of
the Credit Agreement, in addition to any rights now or hereafter granted under
each Secured Creditor is hereby authorized, at any time or from time to time,
such Secured Creditor to or for the credit or the account of such Guarantor,
such Secured Creditor under this Guaranty, irrespective of whether or not such
Secured Creditor shall have made any demand hereunder and although said
contingent or unmatured.
18. All notices, requests, demands or other communications pursuant hereto shall
be sent in accordance with the terms and provisions set forth in Section 13.03
of the Credit Agreement. All notices and other communications shall be in
as provided in the Credit Agreement, (ii) in the case of any Guarantor, at: PAE
Holding Corporation c/o Platinum Equity, LLC, 360 North Crescent Drive, Beverly
Hills, CA 90210; Facsimile: 310-712-1863, Attention: Legal Department, and
(iii) in the case of any Other Creditor, at such address as such Other Creditor
shall have specified in writing to the Lead Borrower and the Administrative
may hereafter notify the others in writing.
-9-
claimant (including the Lead Borrower or any other Guaranteed Party) then and in
any revocation hereof or other instrument evidencing any liability of the
Borrowers or any other Guaranteed Party, and such Guarantor shall be and remain
such payee.
with respect to this Guaranty (except that in the case of any bankruptcy,
insolvency or similar proceedings with respect to any Guarantor, actions or
proceedings related to this Guaranty and the other Credit Documents may be
brought in such court holding such bankruptcy, insolvency or similar
proceedings) may be brought in the courts of the State of New York or of the
this Guaranty, each Guarantor and each Secured Creditor (by its acceptance of
the benefits of this Guaranty) hereby irrevocably accepts for itself and in
of the aforesaid courts that any such court lacks personal jurisdiction over it.
this Guaranty) further irrevocably consents to the service of process out of any
at its address set forth in Section 18 hereof, such service to become effective
other jurisdiction.
-10-
21. In the event that a Guarantor becomes an Excluded Subsidiary or all of the
capital stock of a Guarantor is sold or otherwise disposed of or liquidated in
compliance with the requirements of Section 10.02 of the Credit Agreement (or
Lenders (or all the Lenders if required by Section 13.12 of the Credit
Agreement)), such Guarantor shall upon consummation of such sale or other
disposition (except to the extent that such sale or disposition is to Holdings
or another Credit Party) be released from this Guaranty automatically and
without further action and this Guaranty shall, as to each such Guarantor,
the capital stock of any Guarantor shall be deemed to be a sale of such
Guarantor for the purposes of this Section 21). Upon the occurrence of the
Termination Date, this Guaranty shall automatically and without further action,
as to all Guarantors, terminate and have no further force and effect. The
Administrative Agent will (and each Secured Creditor (by its acceptance of the
benefits of this Guaranty) irrevocably authorizes the Administrative Agent to),
at the Guarantors’ expense, execute and deliver to the Guarantors such documents
as the Guarantors may reasonably request to evidence, as applicable, the release
of such Guarantor from, or the termination in full of, this Guaranty.
arise at
-11-
right until the Guaranteed Obligations have been paid in full, it being
of contribution arising pursuant to this Section 22 against any other Guarantor
obligations owing under this Guaranty. As used in this Section 22: (i) each
giving effect to any Guaranteed Obligations arising under this Guaranty) on such
that is released from this Guaranty shall thereafter have no contribution
Guaranteed Obligations have been paid in full. Each of the Guarantors recognizes
and acknowledges that the rights to contribution arising hereunder shall
Guarantor would remain solvent, in the reasonable determination of the Required
Lenders.
Agent.
-12-
basis as payments are made by the Borrowers under Sections 2.10 and 5.01 of the
Credit Agreement.
26. It is understood and agreed that any Restricted Subsidiary of the Lead
counterpart hereof, or a joinder agreement substantially in the form of Exhibit
A hereto, and delivering same to the Administrative Agent and (y) taking all
actions as specified in this Guaranty as would have been taken by such Guarantor
27. Each Guaranteed Party that is a Qualified ECP Guarantor (as defined below)
at the time the Guaranty or the grant of the security interest under the Credit
Documents, in each case, by any Specified Loan Party (as defined below), becomes
Guarantor’s obligations and undertakings under this Section 27 voidable under
Guarantor under this Section 27 shall remain in full force and effect until the
Guarantor intends this Section 27 to constitute, and this Section 27 shall be
all purposes of the Commodity Exchange Act. A “Qualified ECP Guarantor” shall
mean, in respect of any Swap Obligation, each Credit Party that has total assets
exceeding $10,000,000 at the time the Guaranty or grant of the relevant security
“Specified Loan Party” means any Credit Party that is not “an eligible contract
participant” under the Commodity Exchange Act (determined after giving effect to
this Section 27).
* * *
-13-
DYNCORP By: /s/ Richard Kirk von Seelen Name: Richard Kirk von Seelen
Title: Treasurer
PAE SHIELD ACQUISITION COMPANY, INC. By: /s/ Stephanie Finn Name: Stephanie
Finn Title: Assistant Secretary
A-T SOLUTIONS CORPORATE HOLDINGS PRIME, INC. By: /s/ Richard Kirk von Seelen
Name: Richard Kirk von Seelen Title: Treasurer
A-T SOLUTIONS CORPORATE HOLDINGS, INC. By: /s/ Richard Kirk von Seelen Name:
Richard Kirk von Seelen Title: Treasurer
A-T SOLUTIONS HOLDINGS, INC. By: /s/ Richard Kirk von Seelen Name: Richard
Kirk von Seelen Title: Treasurer
PAE INTERNATIONAL By: /s/ Richard Kirk von Seelen Name: Richard Kirk von
Seelen Title: Treasurer
[PAE – Signature Page to Subsidiary Guaranty (ABL)]
AFGHAN HOLDCO LLC By: /s/ Stephanie Finn Name: Stephanie Finn Title:
Assistant Secretary
DEFENSE SUPPORT SERVICES INTERNATIONAL 3 LLC By: /s/ Stephanie Finn Name:
Stephanie Finn Title: Assistant Secretary
PAE TRAINING SERVICES, LLC By: /s/ Richard Kirk von Seelen Name: Richard
PAE HUMANITARIAN RESPONSE LLC By: /s/ Richard Kirk von Seelen Name: Richard
DEFENSE SUPPORT SERVICES INTERNATIONAL, LLC By: /s/ Stephanie Finn Name:
DEFENSE SUPPORT SERVICES INTERNATIONAL 2 LLC By: /s/ Stephanie Finn Name:
PAE LOGISTICS LLC By: /s/ Richard Kirk von Seelen Name: Richard Kirk von
Seelen Title: Treasurer
ACCELLIGENCE LLC
By: A-T SOLUTIONS, INC., its sole member
By: /s/ Richard Kirk von Seelen Name: Richard Kirk von Seelen Title:
Treasurer
as Administrative Agent
EXHIBIT A
[Form of]
JOINDER AGREEMENT
Reference is made to the (i) Revolving Credit Agreement, dated as of October 20,
2016 among Shay Intermediate Holding II Corporation, a Delaware corporation
Agents (as amended, modified, restated and/or supplemented from time to time,
the “Credit Agreement”) and (ii) the Subsidiaries Guaranty, dated as of
October 20, 2016 (as amended, restated, amended and restated, modified or
supplemented from time to time, the “Subsidiaries Guaranty”), made by each of
the guarantors party thereto in favor of the Administrative Agent. Capitalized
assigned to such terms in the Credit Agreement or in the Subsidiaries Guaranty,
as applicable.
WHEREAS, the Subsidiary Guarantors have entered into the Subsidiaries Guaranty
in order to induce the Lenders to make the Revolving Loans to, and issue Letters
of Credit to, the Borrowers and the Other Creditors to enter into Secured Bank
Product Obligations with the Lead Borrower and/or one or more of its
Subsidiaries;
WHEREAS, pursuant to Section 9.12 of the Credit Agreement and Section 26 of the
Subsidiaries Guaranty, each person that is or becomes a Wholly-Owned Domestic
Subsidiary of a Restricted Subsidiary after the Closing Date (other than an
Excluded Subsidiary) is required to become a Subsidiary Guarantor under the
this joinder agreement (“Joinder Agreement”) to the Subsidiaries Guaranty as
required by the Credit Agreement;
follows:
1. Guarantee. In accordance with Section 26 of the Subsidiaries Guaranty, the
New Guarantor by its signature below becomes a Guarantor (as defined in the
Subsidiaries Guaranty) under the Subsidiaries Guaranty with the same force and
effect as if originally named therein as a Guarantor (as defined in the
Subsidiaries Guaranty).
the terms and provisions of the Subsidiaries Guaranty applicable to it as a
Subsidiary Guarantor, respectively, thereunder and (b) represents and warrants
that the representations and warranties made by it as a Subsidiary Guarantor
thereunder are true and correct in all material respects (except that any
hereof. Each reference to a Subsidiary Guarantor in the Credit Agreement and to
a Guarantor in the Subsidiary Guaranty shall be deemed to include the New
Guarantor.
other jurisdiction.
5. No Waiver. Except as expressly supplemented hereby, the Subsidiaries Guaranty
Subsidiaries Guaranty.
7. Governing Law. THIS JOINDER AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
first above written.
[ ],
as a Guarantor
By:
Title:
Address for Notices:
as Administrative Agent
By:
Name:
Title:
By:
Name:
Title:
|
Exhibit 10.1
|
Title: Neighbor installed road over my property. [Update.]
Question:[Original post.](https://np.reddit.com/r/legaladvice/comments/5rcjap/neighbor_installed_road_over_my_property/)
Short update.
The neighbor had an accident on his property and will no longer be an issue.
His heir and I settled out of court.
The county is still figuring out how much the fines will be, but they will be quite sizable, and part of the settlement was the agreement that the neighbors estate will cover all fines due to the work.
EDIT: Thought all updates were locked ... but guess not true anymore?
EDIT 2: Wrong sub ... let me konw if I should delete this.
Answer #1: > The neighbor had an accident on his property and will no longer be an issue.
Nebraska's legal system is _metal_.Answer #2: "The neighbor had an accident and will no longer be a problem.
His heir and I settled out of court."
The fuck did you do to him ^^/sAnswer #3: An accident, or an “accident”?Answer #4: Wow! Well, I'm glad everything worked out for you. Kinda sad that the guy had to die but you do what you gotta do I guess.Answer #5: Be very very glad the accident was on his property and not while he was going through your property.Answer #6: Oh my god. Answer #7: Do you need legal advice as to how to handle the subsequent accident? Because that might require a real lawyer.Answer #8: It's in legal advice off topic, updates don't get locked hereAnswer #9: Wait...were you fined and the neighbors agreed to pay for them? Why wouldn't the fines have been levied at the people who caused the damage to begin with??Answer #10: The reason comments are allowed is because you posted it on the legal advice off-topic sub Reddit rather than the main legal advice sub. Answer #11: Did you agree to allow use of the road? Did you remove or block it to prevent use? Were you compensated for the damage or just the fines? |
Exhibit 10.4
Execution Version
GM FINANCIAL,
as Servicer,
and
2020-3 SERVICING SUPPLEMENT
Dated as of August 24, 2020
TABLE OF CONTENTS
Page
1
SECTION 1.1.
General Definitions 1
ARTICLE II SERVICING OF 2020-3 DESIGNATED POOL
2
SECTION 2.1.
Servicing of 2020-3 Designated Pool 2
SECTION 2.2.
Identification of 2020-3 Lease Agreements and 2020-3 Leased Vehicles;
Securitization Value 2
SECTION 2.3.
Accounts 2
SECTION 2.4.
SECTION 2.5.
Reallocation and Repurchase of 2020-3 Lease Agreements and 2020-3 Leased
SECTION 2.6.
2020-3 Designated Pool Collections 7
SECTION 2.7.
SECTION 2.8.
Third Party Claims 8
SECTION 2.9.
SECTION 2.10.
SECTION 2.11.
SECTION 2.12.
Representations and Warranties 12
SECTION 2.13.
SECTION 2.14.
Reserve Account 13
SECTION 2.15.
SECTION 2.16.
14
SECTION 2.17.
SECTION 2.18.
Separate Existence 15
SECTION 2.19.
SECTION 2.20.
Dispute Resolution 16
ARTICLE III MISCELLANEOUS
19
SECTION 3.1.
Termination of 2020-3 Servicing Supplement 19
SECTION 3.2.
Amendment 19
SECTION 3.3.
GOVERNING LAW 20
SECTION 3.4.
Relationship of 2020-3 Servicing Supplement to Other Trust Documents 20
SECTION 3.5.
[Reserved] 20
SECTION 3.6.
Notices 20
SECTION 3.7.
Severability of Provisions 20
SECTION 3.8.
Binding Effect 21
i
SECTION 3.9.
21
SECTION 3.10.
21
SECTION 3.11.
Further Assurances
21
SECTION 3.12.
Third-Party Beneficiaries
21
SECTION 3.13.
No Petition
21
SECTION 3.14.
Limitation of Liability
21
SECTION 3.15.
22
SECTION 3.16.
Review Reports
22
SECTION 3.17.
Regulation RR Risk Retention
22
EXHIBITS
A-1
ii
2020-3 SERVICING SUPPLEMENT, dated as of August 24, 2020 (as the same may be
“2020-3 Servicing Supplement” or this “Agreement”), among ACAR Leasing Ltd., a
RECITALS
Servicer; and
the 2020-3 Exchange Note Supplement, dated as of August 24, 2020 (as the same
the “2020-3 Exchange Note Supplement”) to the Second Amended and Restated Credit
Collateral Agent, pursuant to which an Exchange Note (the “2020-3 Exchange
servicing of the Trust Assets allocated to the 2020-3 Designated Pool.
ARTICLE I
DEFINITIONS AND INTERPRETIVE PROVISIONS
SECTION 1.1. General Definitions. Capitalized terms used in this 2020-3
meanings assigned to them in Appendix 1 to the 2020-3 Exchange Note Supplement
reference into this 2020-3 Servicing Supplement.
ARTICLE II
SERVICING OF 2020-3 DESIGNATED POOL
SECTION 2.1. Servicing of 2020-3 Designated Pool. The parties hereto agree
that the Servicer shall service, administer and make collections on the 2020-3
this 2020-3 Servicing Supplement.
SECTION 2.2. Identification of 2020-3 Lease Agreements and 2020-3 Leased
as 2020-3 Exchange Note Assets the Lease Agreements and the Leased Vehicles
relating to such Lease Agreements listed on the Schedule of 2020-3 Lease
Agreements and 2020-3 Leased Vehicles attached as Schedule A to the 2020-3
for each 2020-3 Lease Agreement as of the Cutoff Date.
the term of the Indenture, a 2020-3 Eligible Deposit Account in the name of and
(said account being called the “2020-3 Exchange Note Collections Account” and
being initially identified as “GM Financial 2020-3 Exchange Note Collections
Account”). Deposits to and withdrawals from the 2020-3 Exchange Note Collections
Account shall be made as set forth in the 2020-3 Servicing Agreement, the 2020-3
initially identified as “GM Financial 2020-3 Indenture Collections Account”).
Deposits to and withdrawals from the 2020-3 Indenture Collections Account shall
be made as set forth in the 2020-3 Exchange Note Supplement and the Indenture.
identified as “GM Financial 2020-3 Note Payment Account”). Deposits to and
Indenture.
Financial 2020-3 Reserve Account”).
2
2020-3 Servicing Supplement and the other Program Documents and the Accounts
shall cease to be a 2020-3 Eligible Deposit Account, the Indenture Trustee
an institution at which it shall be a 2020-3 Eligible Deposit Account.
(f) If, at any time, any of the Accounts ceases to be a 2020-3 Eligible
related Exchange Note may consent) establish a new Account as a 2020-3 Eligible
Intermediary agrees that:
to the Issuer;
2020-3 Servicing Agreement and the Indenture will be promptly credited to the
applicable Account;
Asset;
3
of the Accounts.
all or a portion of the funds in the 2020-3 Exchange Note Collections Account,
Account shall be invested at the direction of the Servicer in 2020-3 Permitted
deposited in the 2020-3 Exchange Note Collections Account, the Indenture
deposited into the 2020-3 Exchange Note Collections Account, the Indenture
2020-3 Exchange Note Collections Account, the Indenture Collections Account or
the 2020-3 Exchange Note Collections Account and all investment earnings on the
2020-3 Exchange Note Collections Account will be taxable to the Titling Trust.
or to sell any 2020-3 Permitted Investment held in the 2020-3 Exchange Note
4
perfected in the 2020-3 Exchange Note Collections Account, the Indenture
such 2020-3 Permitted Investment or the proceeds of such sale, in either case
Default, no such 2020-3 Permitted Investment shall be sold prior to maturity.
funds on deposit in the 2020-3 Exchange Note Collections Account, the Indenture
in the 2020-3 Exchange Note Collections Account, the Indenture Collections
not in any way be held liable by reason of any insufficiency in the 2020-3
Reserve Account resulting from any loss on any 2020-3 Permitted Investment
2020-3 Permitted Investments issued by the Indenture Trustee, in its commercial
terms.
SECTION 2.5. Reallocation and Repurchase of 2020-3 Lease Agreements and
2020-3 Leased Vehicles; Purchase of Matured Vehicles.
(a) In the event the Servicer (i) grants certain payment deferments or end
of lease extensions with respect to any 2020-3 Lease Agreement that are
inconsistent with the Customary Servicing Practices or that extend the term of
such 2020-3 Lease Agreement past the Exchange Note Final Scheduled Payment Date,
(ii) modifies any 2020-3 Lease Agreement to change the related Contract Residual
Value or Monthly Payment, or (iii) is notified the Titling Trust no longer owns
any 2020-3 Leased Vehicle, except to the extent that any such modification
listed in clauses (i) and (ii) of this Section 2.5(a) is required by law or
court order, the Servicer shall, on the Deposit Date related to the Collection
Period in which such extension was granted, modification was made or notice was
received, as applicable, cause the reallocation of the affected 2020-3 Lease
Agreement and the related 2020-3 Leased Vehicle to the Lending Facility Pool by
depositing to the 2020-3 Exchange Note Collections Account an amount equal to
the
5
Repurchase Payment with respect to such 2020-3 Lease Agreement and the related
2020-3 Leased Vehicle.
warranty contained in Section 2.12 was incorrect in respect of any 2020-3 Lease
Agreement or the related 2020-3 Leased Vehicle as of the Cutoff Date or the
2020-3 Closing Date, as applicable, in a manner that materially adversely
affects the interest of the Issuer or the Noteholders in such 2020-3 Lease
Agreement or such 2020-3 Leased Vehicle, the entity discovering such
reallocate the affected 2020-3 Lease Agreement and the related 2020-3 Leased
as of the Cutoff Date or the 2020-3 Closing Date, as applicable. If the Servicer
shall cause the reallocation of the affected 2020-3 Lease Agreement and the
related 2020-3 Leased Vehicle to the Lending Facility Pool by depositing to the
2020-3 Exchange Note Collections Account on the Deposit Date relating to the
respect to such 2020-3 Lease Agreement and the related 2020-3 Leased Vehicle.
of any 2020-3 Lease Agreement and the related 2020-3 Leased Vehicle pursuant to
6
that is a 2020-3 Lease Agreement or 2020-3 Leased Vehicle on the date that such
the Noteholders of each reallocation to the Lending Facility Pool of a 2020-3
Lease Agreement and the related 2020-3 Leased Vehicle pursuant to Section 2.5(a)
(e) The Servicer may purchase any 2020-3 Leased Vehicle that becomes a
a purchase price equal to the Contract Residual Value of the related 2020-3
Lease Agreement.
permitted to reallocate any 2020-3 Lease Agreements and related 2020-3 Leased
Vehicles from the 2020-3 Designated Pool to the Lending Facility Pool except in
accordance with the terms of this Section 2.5 and Section 3.1 of the 2020-3
Exchange Note Supplement.
discovers or is notified of such change, the Servicer shall purchase such 2020-3
Lease Agreement and the related 2020-3 Leased Vehicle by either (i) depositing
2020-3 Servicing Agreement.
SECTION 2.6. 2020-3 Designated Pool Collections.
(a) The Servicer shall, with respect to all 2020-3 Designated Pool
Collections, from time to time determine the amount of such 2020-3 Designated
Pool Collections and during each Collection Period shall deposit all such 2020-3
Servicer shall remit, or shall cause its agent to remit, all 2020-3 Designated
Pool Collections to the 2020-3 Exchange Note Collections Account by the close of
of any 2020-3 Designated Pool Collections received by the
7
Servicer or such agent for which the Servicer or such agent, as applicable, does
not have all Payment Information by the close of business on such second (2nd)
Business Day, by the close of business on the day on which all such Payment
Information is received. Pending deposit into the 2020-3 Exchange Note
Collections Account, 2020-3 Designated Pool Collections may be employed by the
Servicer at its own risk and for its own benefit and need not be segregated from
its own funds.
performance of its obligations under the 2020-3 Servicing Agreement, on each
September 30, 2020 (the “Designated Pool Servicing Fee”) in accordance with
Article V of the 2020-3 Exchange Note Supplement in an amount equal the sum of
Cutoff Date through and including September 30, 2020, over 360), times (ii) the
Administrative Charges collected on the 2020-3 Lease Agreements and 2020-3
the 2020-3 Exchange Note Assets, the Servicer shall immediately notify the
seq. (the “Credit Risk Retention Rules”). In addition, upon the determination by
the Servicer of a Benchmark Replacement and/or the making of any Benchmark
Replacement Conforming Changes, the Servicer will include in the Servicer’s
Certificate any information regarding the Unadjusted Benchmark Replacement, the
Benchmark Replacement Adjustment, any such Benchmark Replacement Conforming
Changes and the Interest Accrual Period in which such Benchmark Replacement will
be implemented. Notwithstanding Section 3.2(a) of the Basic Servicing Agreement,
the Servicer shall deliver such Servicer Reports in accordance with this
Section 2.9 until the date on which the Notes are no longer Outstanding.
8
(b) In addition to the report with respect to the 2020-3 Exchange Note
31) of each year, beginning March 31, 2021, an Officer’s Certificate, dated as
performance under the 2020-3 Servicing Agreement has been made under such
review, the Servicer has fulfilled all its obligations under the 2020-3
year, beginning on March 31, 2021, a report regarding the Servicer’s assessment
Issuer, on or before March 31 of each year, beginning on March 31, 2021, a
AB.
Collateral Agent under this 2020-3 Servicing Supplement and in its capacity as
certificates delivered by it pursuant to the 2020-3 Servicing Agreement to the
Basic Servicing Agreement and the Officer’s Certificate relating to the 2020-3
Exchange Note delivered by it pursuant to Section 2.9(b) of this 2020-3
Servicing Supplement.
asset-related document containing the asset-level information for each 2020-3
9
December 31) of each year, beginning on March 31, 2021, a report with respect to
Exchange Act.
Exchange Act.
2021 with respect to the twelve (12) months ended the immediately preceding
elapsed from the 2020-3 Closing Date to the date of such certificate (which
Default” under the 2020-3 Servicing Agreement with respect to the 2020-3
Exchange Note:
(i) any failure by the Servicer to deposit in the 2020-3 Exchange Note
cause the Titling Trust to make any required payments from the 2020-3 Exchange
Note
10
Collections Account on account of the 2020-3 Exchange Note or any failure of the
Servicer to make any required payment under any other Program Document, which
by the Indenture Trustee, or (2) an Authorized Officer of the Servicer has
actual knowledge of such failure;
covenants or agreements of the Servicer set forth in the 2020-3 Servicing
the interests of the 2020-3 Secured Parties and shall continue unremedied for a
the Servicer;
the 2020-3 Servicing Agreement or in any other Program Document or which is
interests of the 2020-3 Secured Parties or the Issuer which failure, if capable
respect to the 2020-3 Exchange Note, the Titling Trust shall, acting at the
obligations of the Servicer under the 2020-3 Servicing Agreement in accordance
obligations of the Servicer hereunder in respect of the 2020-3 Lease Agreements
and 2020-3 Leased Vehicles. Any such Person shall accept its appointment by a
the Servicer is removed as servicer of the 2020-3 Exchange Note Assets, (i) the
Successor Servicer all Lease Documents with respect to the 2020-3 Lease
Agreements and the 2020-3 Leased Vehicles that are then in the possession of the
with respect to the
11
2020-3 Exchange Note Assets, and (iii) the Servicer shall deliver to the
Successor Servicer all servicing records directly maintained by the Servicer,
maintained by the Servicer, in computer format in connection with servicing the
2020-3 Exchange Note Assets. If no Person has accepted its appointment as
Successor Servicer when the predecessor Servicer ceases to act as Servicer in
accordance with this Section 2.11, the Indenture Trustee, will, without further
action, be automatically appointed the Successor Servicer. Notwithstanding the
above, if the Indenture Trustee is unwilling or legally unable to act as
Successor Servicer, it may appoint, or petition a court of competent
jurisdiction to appoint, an institution whose business includes the servicing of
lease agreements and the related lease assets, as Successor Servicer. The
Indenture Trustee will be released from its duties and obligations as Successor
Servicer on the date that a new servicer agrees to appointment as Successor
Servicer hereunder. All reasonable costs and expenses incurred in connection
with transferring the servicing of the 2020-3 Exchange Note Assets to the
successor Servicer and amending this agreement to reflect such succession as
have been entitled to under this 2020-3 Servicing Supplement if the Servicer had
Agreement, with respect to any Servicer Default related to the 2020-3 Exchange
default of the Servicer in the performance of its obligations under the 2020-3
Servicing Agreement and its consequences with respect to the 2020-3 Exchange
every purpose of the 2020-3 Exchange Note Servicing Agreement. No such waiver
thereto.
and the Noteholders as of the 2020-3 Closing Date:
Basic Servicing Agreement as to each 2020-3 Lease Agreement and the related
2020-3 Leased Vehicle were true and correct as of the Cutoff Date;
(c) Each 2020-3 Lease Agreement and 2020-3 Leased Vehicle is an Eligible
connection with the 2020-3
12
Servicing Agreement or any of the other Program Documents or any transaction
contemplated hereby or thereby is, and all information hereafter furnished by
the Servicer or any of its Affiliates to the Indenture Trustee, the Owner
Trustee or any of the Noteholders will be, (i) true and accurate in every
material respect on the date such information is stated or certified, and
(ii) does not and will not contain any material misstatement of fact or omit to
therein misleading, in the case of each of (i) and (ii) when taken together with
all other information provided on or prior to the date hereof; and
as of the 2020-3 Closing Date.
(f) With respect to any 2020-3 Lease Agreement that constitutes “electronic
relating to the 2020-3 Designated Pool, maintains control of a single
electronically authenticated authoritative copy of the related 2020-3 Lease
Agreement.
Documents relating to the 2020-3 Designated Pool, as agent and bailee for the
the 2020-3 Designated Pool shall be identified and maintained in such a manner
Successor Servicer. If the Servicer is terminated under the 2020-3 Servicing
(b) With respect to any 2020-3 Lease Agreement that constitutes “electronic
relating to the 2020-3 Designated Pool, shall at all times maintain control of a
single electronically authenticated authoritative copy of the related 2020-3
Lease Agreement.
2020-3 Designated Pool, acknowledges that it is holding such instruments and
Trustee.
(a) On the 2020-3 Closing Date, GMF Leasing LLC shall deposit the Specified
Noteholders.
13
Date.
of any 2020-3 Lease Agreement under applicable law, (d) the breach or inaccuracy
of any representation or warranty made with respect to any 2020-3 Lease
Agreement or 2020-3 Leased Vehicle, or (e) the acts or omissions of any
Noteholders. Notwithstanding the
14
foregoing, GM Financial shall not merge or consolidate with any other Person or
permit any other Person to become a successor to GM Financial’s business, unless
warranty made pursuant to Section 2.12 shall have been breached (for purposes
consummation of such transaction), (y) GM Financial shall have delivered to the
Owner Trustee, the Indenture Trustee and the Noteholders an Officer’s
relating to such transaction have been complied with, and (z) GM Financial shall
have delivered to the Owner Trustee, the Collateral Agent and the Indenture
Trustee an Opinion of Counsel stating, in the opinion of such counsel, either
that (i) all financing statements and continuation statements and amendments
the interest of the Trust in the 2020-3 Exchange Note and the Other Conveyed
Property (and reciting the details of the filings), or (ii) no such action shall
the 2020-3 Servicing Agreement except if it is prohibited by law from performing
its obligations in respect of the 2020-3 Exchange Note Assets under the Basic
Basic Servicing Agreement.
Trust Documents; and
15
2020-3 Leased Vehicle may be reallocated from the 2020-3 Designated Pool to the
Residual Value of the related 2020-3 Leased Vehicle is deposited to the 2020-3
Proceeds with respect to such 2020-3 Leased Vehicle are determined prior to the
deposit of such Base Residual Value to the 2020-3 Exchange Note Collections
2020-3 Exchange Note Collections Account in full satisfaction of this
2020-3 Leased Vehicle to the 2020-3 Exchange Note Collections Account in
2020-3 Exchange Note Collections Account for its own account, and (ii) the
the 2020-3 Exchange Note Collections Account from its own funds by no later than
Proceeds are determined.
2020-3 Lease Agreement may be a Pull Ahead Lease Agreement pursuant to a Pull
Ahead Program if all amounts due and payable under the related 2020-3 Lease
such 2020-3 Lease Agreement and the Servicer’s Customary Servicing Practices,
and allocated to the 2020-3 Exchange Note Collections Account) are deposited to
the 2020-3 Exchange Note Collections Account by no later than the second (2nd)
Business Day following the date that such 2020-3 Lease Agreement would terminate
reimbursement from any 2020-3 Designated Pool Collections for any amounts that
it deposits to the 2020-3 Collections Account from its own funds in connection
any 2020-3 Lease Agreement and the related 2020-3 Leased Vehicle to the Lending
representation and warranty with respect to such 2020-3 Lease Agreement and the
related 2020-3 Leased Vehicle (each, a “Reallocation Request”), and the
the form of a reallocation of the related 2020-3 Lease Agreement and the related
2020-3 Leased Vehicle to the Lending Facility Pool against payment of the
Reallocation
16
Request by the party that originally requested the reallocation or a cure of the
condition that led to the related breach in the manner set forth herein), then
the Servicer or Depositor shall describe the unresolved Reallocation Request on
the Form 10-D that is filed that relates to the Collection Period during with
the related 180-day period ended, and any of the party that originally requested
the reallocation, any Noteholder or the Indenture Trustee on behalf of certain
Noteholders in accordance with the following sentence (any such Person, a
“Requesting Party”) may refer the matter, in its discretion, to either mediation
(including non-binding arbitration) or binding third-party arbitration;
provided, that if the Noteholder seeking to refer the matter to mediation or
arbitration is not a Noteholder of record, such Noteholder must provide the
Servicer and the Indenture Trustee with a written certification stating that it
is a beneficial owner of a Note, together with supporting documentation
ownership) before the Servicer will be obligated to participate in the related
mediation or arbitration. Noteholders representing five percent or more of the
Outstanding Amount of the most senior Class of Notes may direct the Indenture
Trustee, by notice in writing, in relation to any matter described in the
preceding sentence, to initiate either mediation (including non-binding
arbitration) or binding third party arbitration, as directed by such
control.
17
will control.
for conflict.
Documents.
18
conference.
available by law.
ARTICLE III
MISCELLANEOUS
SECTION 3.1. Termination of 2020-3 Servicing Supplement. This 2020-3
it relates to the 2020-3 Exchange Note) will be terminated in the event that the
following the payment in full of the 2020-3 Exchange Note.
(a) This 2020-3 Servicing Supplement (and, accordingly, the Basic Servicing
Agreement, insofar as it relates to the 2020-3 Exchange Note) may be amended by
to the extent that any such
19
amendment materially affects any Other Exchange Note, such amendment shall
require the consent of the Exchange Noteholder thereof affected thereby.
Indenture Trustee to consent to any amendment of this 2020-3 Servicing
Supplement is subject to the following terms: the parties hereto will not
(1) without the prior written consent of the Required Noteholders, waive timely
performance or observance by the Servicer under the 2020-3 Servicing Agreement
and (2) without the prior written consent of all Noteholders, reduce the
required percentage of the Notes that is required to consent to any amendment
pursuant to this Section 3.2 and (ii) any consent provided by the Indenture
Trustee in violation of such terms shall be of no force or effect hereunder.
SECTION 3.4. Relationship of 2020-3 Servicing Supplement to Other Trust
Documents. Unless the context otherwise requires, this 2020-3 Servicing
between the provisions of this 2020-3 Servicing Supplement and the Basic
Servicing Agreement, with respect to the servicing of any 2020-3 Exchange Note
Assets, the provisions of this 2020-3 Servicing Supplement shall prevail. This
2020-3 Servicing Supplement shall supplement the Basic Servicing Agreement as it
relates to the 2020-3 Exchange Note and the 2020-3 Designated Pool and not to
SECTION 3.6. Notices. For purposes of the 2020-3 Servicing Agreement, all
Minneapolis, Minnesota 55415. Notices to the other parties to this 2020-3
Servicing Agreement.
covenants, agreements, provisions or terms of this 2020-3 Servicing Supplement
or the 2020-3 Servicing Agreement shall be for any reason whatsoever held
2020-3 Servicing Supplement or the 2020-3 Servicing Agreement, as applicable,
covenants,
20
agreements, provisions and terms of this 2020-3 Servicing Supplement or the
SECTION 3.8. Binding Effect. The provisions of this 2020-3 Servicing
Supplement and the 2020-3 Servicing Agreement shall be binding upon and inure to
SECTION 3.10. Counterparts and Consent to Do Business Electronically. This
2020-3 Servicing Supplement may be executed in multiple counterparts, each of
which shall be deemed to be an original, but together they shall constitute one
and the same instrument. Facsimile and .pdf signatures shall be deemed valid and
binding to the same extent as the original and the parties affirmatively consent
to the use thereof, with no such consent having been withdrawn. Each party
agrees that this 2020-3 Servicing Supplement and any documents to be delivered
in connection with this 2020-3 Servicing Supplement may be executed by means of
an electronic signature that complies with the federal Electronic Signatures in
Global and National Commerce Act, state enactments of the Uniform Electronic
case to the extent applicable. Any electronic signatures appearing on this
2020-3 Servicing Supplement and such other documents are the same as handwritten
signatures for the purposes of validity, enforceability, and admissibility. Each
as may be reasonably requested in order to effect the purposes of this 2020-3
Servicing Supplement and the 2020-3 Servicing Agreement and to better assure and
Noteholder shall be third-party beneficiaries of the 2020-3 Servicing Agreement.
Except as otherwise provided in the 2020-3 Servicing Agreement, no other Person
agreed by the parties hereto that (a) this 2020-3 Servicing Supplement is
executed and delivered by
21
Wilmington Trust Company, not individually or personally but solely as owner
trustee of the Titling Trust and the Settlor, in the exercise of the powers and
authority conferred and vested in it under the Titling Trust Agreement and
Settlor Trust Agreement, as applicable, (b) each of the representations,
undertakings and agreements herein made on the part of the Titling Trust and the
Settlor is made and intended not as personal representations, undertakings and
for binding only the Titling Trust and the Settlor, (c) nothing herein contained
shall be construed as creating any liability on Wilmington Trust Company,
individually or personally, to perform any covenant either express or implied
(d) Wilmington Trust Company has made no investigation as to the accuracy or
Agreement, and (e) under no circumstances shall Wilmington Trust Company be
Trust and the Settlor or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Titling Trust and
the Settlor under this 2020-3 Servicing Supplement or the other related
documents.
Report (as defined in the 2020-3 Asset Representations Review Agreement), the
Interest”) (as defined in the Credit Risk Retention Rules) on the 2020-3 Closing
representations and
22
Servicer hereunder.
23
IN WITNESS WHEREOF, the parties hereto have caused this 2020-3 Servicing
Trustee
By: /s/ Cynthia L. Major Name: Cynthia L.
Major Title: Officer
By: /s/ Robert T. Pigott III Name: Robert T.
Pigott III Title: Senior Vice President, Corporate Treasury APGO TRUST, as
Settlor
Trustee
By: /s/ Drew H. Davis Name: Drew H. Davis
Title: Vice President WELLS FARGO BANK, NATIONAL ASSOCIATION, not in its
individual capacity but solely as Indenture Trustee and as Collateral Agent By:
/s/ Marianna Stershic Name: Marianna Stershic
Title: Vice President
[Signature Page to the 2020-3 Servicing Supplement]
EXHIBIT A
FORM OF SERVICER REPORT
A-1
GM Financial Automobile Leasing Trust 2020-3
_____% Exchange Note
Class A-1 _______% Asset Backed Notes
Class A-2A _____% Asset Backed Notes
Class A-3 _____% Asset Backed Notes
Class A-4 _____% Asset Backed Notes
Class B _____% Asset Backed Notes
Class C _____% Asset Backed Notes
Class D _____% Asset Backed Notes
Servicer’s Certificate
Beginning of Period: 2020-3 Original Agg. End of
Period: Designated Pool Units Start Date Closing Date
Securitization Value Number of days in Interest Period (Actual/360):
Report Due Date: Total Distribution
RECONCILIATION OF 2020-3 DESIGNATED POOL AGGREGATE SECURITIZATION VALUE
{1}
{2}
Reduction in Agg. Securitization Value due to payments {2}
{3}
{3}
{4}
buyouts, cancellations, repurchases {4}
{5}
Other adjustments {5}
{6}
Total change in Agg. Securitization Value {6}
{7}
End of period Aggregate Securitization Value {7}
{8}
Pool Factor {8}
RECONCILIATION OF 2020-3 EXCHANGE NOTE
{9}
{10}
{11}
{12}
{13}
{14}
Original Note Balance {14}
{15}
Beginning of period Note Balance {15}
{16}
Noteholders’ Principal Distributable Amount {16}
{17}
Noteholders’ Accelerated Principal Amount {17}
{18}
Aggregate Principal Parity Amount {18}
{19}
Matured Principal Shortfall {19}
{20}
End of period Note Balance {20}
{21}
Note Pool Factor {21}
Class B Class C Class D
TOTAL
{22}
Original Note Balance {22}
{23}
Beginning of period Note Balance {23}
{24}
Noteholders’ Principal Distributable Amount {24}
{25}
Noteholders’ Accelerated Principal Amount {25}
{26}
Aggregate Principal Parity Amount {26}
{27}
Matured Principal Shortfall {27}
{28}
End of period Note Balance {28}
{29}
Principal payment calculation:
{30} Beginning of period Designated Pool
Balance
{30} {31} Ending Designated Pool Balance
{31} {32} Unpaid prior Exchange Note Principal Payment
Amount
{32} {33} Sum of {31} + {32}
{33} {34} Exchange Note Principal Payment
Amount {30} - {33}
{34} Interest
calculation:
Days Days Basis Interest {35}
RECONCILIATION OF EXCHANGE
NOTE COLLECTION ACCOUNT
Additions: {36} 2020-3 Designated Pool Collections
(net of Liquidation Proceeds and fees)
{36} {37} Net Liquidation Proceeds collected during
period
{37} {38} Investment Earnings
{38} {39} Investment Earnings - transferred to
Indenture Note Collection Account
{39} {40} Deposit from Servicer
{40} {41} Total Additions:
{42} To the Servicer, Designated Pool Servicing Fee
{42} {43} To the 2020-3 Exchange Noteholder, the
Exchange Note Interest Payment Amount
{43} {44} To the 2020-3 Exchange Noteholder, the
{44} {45} To the 2020-3 Exchange Noteholder, any funds
available to pay obligations pursuant to Indenture Section 8.3 (a)(i) through
(xvii)
{45} {46} To the 2020-3 Exchange Noteholder, all
remaining funds to be applied as Excess Exchange Note Payments
{46} {47} Total Distributions:
{47}
Beginning Agg. Securitization Value {48} {49} Ending
Agg. Securitization Value {49} {50} Principal
Distributable Amount {48} - {49} {50}
{51} Noteholders’ Principal Carryover Amount
{51} {52} Principal Distributable Amount +
{52} {53} Amount required to reduce
Outstanding Amount after giving effect to distributions made pursuant to
Indenture Section 8.3 (i) through (xiii) to the Required Pro Forma Note Balance
{53} {54} Noteholders’ Principal Distributable
Amount Lessor of {52} and {53}
{54}
Beg Note Balance Interest Carryover Interest Rate Days
Days Basis Interest {55} Class A-1
{56} Class A-2A {57}
Class A-2B {58} Class A-3
{59} Class A-4 {60}
Class B {61} Class C
{62} Class D
Available Funds:
{63} 2020-3 Exchange Note Collections
{63} {64} Investment Earnings
{64} {65} Investment Earnings - transferred from Exchange
Note Collection Account
{65} {66} Investment Earnings - and amounts released from
Reserve Account pursuant to Section 2.14(b)(ii) of Servicing Supplement
{66} {67} Optional Purchase Price
{67} {68} Indenture Section 5.4 disposition of Collateral
{68} {69} Available Funds:
{69} {70} Reserve Account Withdrawal Amount
{70} {71} Total Distributable Funds:
{71}
Distributions:
{72} To the Successor Servicer, unpaid transition expenses, pro rata
{72} {73} To the Indenture Trustee, any accrued and unpaid
fees & expenses, pro rata
{73} {74} To the Issuer Owner Trustee, any accrued and
unpaid fees & expenses, pro rata
{74} {75} To the Asset Representations Reviewer, any
accrued and unpaid fees & expenses, pro rata
{75} {76} Class A-1 Noteholders’ Interest Distributable
Amount pari passu
{76} {77} Class A-2A Noteholders’ Interest Distributable
Amount pari passu
{77} {78} Class A-2B Noteholders’ Interest Distributable
Amount pari passu
{78} {79} Class A-3 Noteholders’ Interest Distributable
Amount pari passu
{79} {80} Class A-4 Noteholders’ Interest Distributable
Amount pari passu
{80} {81} Class A Noteholders’ Principal Parity Amount or
Matured Principal Shortfall
{81} {82} Class B Noteholders’ Interest Distributable
Amount
{82} {83} Class B Noteholders’ Principal Parity Amount or
Matured Principal Shortfall
{83} {84} Class C Noteholders’ Interest Distributable
Amount
{84} {85} Class C Noteholders’ Principal Parity Amount or
Matured Principal Shortfall
{85} {86} Class D Noteholders’ Interest Distributable
Amount
{86} {87} Class D Noteholders’ Principal Parity Amount or
Matured Principal Shortfall
{87} {88} Noteholders’ Principal Distributable Amount
{88} {89} To the Reserve Account, the Reserve Amount
Required Amount
{89} {90} To the Noteholders, the Accelerated Principal
Amount (as calculated below)
{90} {91} To the Successor Servicer, any amounts in excess
of the caps set forth, pro rata
{91} {92} To the Indenture Trustee, any amounts in excess
{92} {93} To the Asset Representations Reviewer, any
amounts in excess of the caps set forth, pro rata
{93} {94} To the Issuer Owner Trustee, any amounts in
excess of the caps set forth, pro rata
{94} {95} To the Issuer Trust Certificateholders, the
aggregate amount remaining
{95} {96} Total Distributions:
{96}
PRINCIPAL PARITY AMOUNT CALCULATION (X) (Y) (I) (II)
Cumulative Aggregate Excess of
Total Available Funds Lesser of Class Note Balance
Securitization Value (X) - (Y) in Indenture Collection Account
(I) or (II) {97} Class A {98}
Class B {99} Class C
ACCELERATED PRINCIPAL AMOUNT CALCULATION {101} Excess Total
Available Funds {101} {102}
Beginning Note Balance {102} {103} Principal
payments through Indenture Section 8.3 (a) (i) through (xv) {103}
{104} Pro-Forma Note Balance {104}
{105} Ending Aggregate Securitization Value {105}
{106} __% of Aggregate Securitization Value as of Cutoff until
Class A-2 is paid in full,__% Thereafter ($____________) {106}
{107} Required Pro Forma Note Balance {105} - {106}
{107} {108} Excess of Pro Forma Balance
minus Required Pro Forma Balance {104} - {107}
{108} {109} Lesser of Excess Total
Available Funds and Excess of Pro Forma Note Balance
{109}
OVERCOLLATERALIZATION CALCULATIONS Exchange Note: {110}
Ending Aggregate Securitization Value {110} {111}
End of Period Note Balance {111} {112}
Overcollateralization {112} {113}
Overcollateralization% {113} Asset
Backed Notes: {114} Ending Aggregate Securitization Value
{114} {115} End of Period Note Balance {115}
{116} Overcollateralization {116}
{117} Overcollateralization% {117}
RECONCILIATION OF 2020-3 CASH RESERVE ACCOUNT
{118} Specified Reserve Balance {118}
{119} Beginning of Period Reserve Account balance {119}
{120} Investment Earnings {120} {121} From the
Indenture Collection Account, the Reserve Account Required Amount
{121} {122} To the Indenture Collection Account, the Reserve
Account Withdrawal Amount {122} {123} Total Reserve
balance available: {123} {124}
Specified Reserve Balance {124}
{125} Release Excess Cash to Indenture Collection Available Funds
{125} {126} End of period Reserve
Account balance {126}
Dollars Percentage {127} Receivables with Scheduled Payment delinquent
61 days or more
{127} {128} Compliance
(Trigger Violation is a Delinquency Rate Greater Than ____%)
{128} CREDIT RISK RETENTION(1)
Dollars Percentage {129} Fair Value of Residual Interest
{129} {130} Total Fair Value of Notes and Residual
Interest
{130} {131} Compliance (Fair
Value must be at least 5% of the aggregate value of the Notes and Residual
Interest)
{131}
GM Financial
GMALT 2020-3
Supplemental Monthly Data
Date
Aggregate
Securitization Value
Residual Value
Beginning of Period
Change
End of Period
Delinquency
Leases with scheduled payment delinquent Number of Leases
Agg. Securitization Value Percentage(1)
0 - 30 days
31 - 60 days
61 - 90 days
91 - 120 days
Total
Lease Terminations
Current Period Cumulative Number of Leases Agg. Securitization
Value Number of Leases Agg. Securitization Value
Retained vehicles by lessee
Early terminations
Standard terminations
Total retained by lessee
Returned Vehicles
Early terminations
Standard terminations
Total returned to dealer
Repurchases
Other
Total terminations
Lease Extensions/Deferments
Current Period Number of Leases Agg. Securitization Value
Percentage
Term Extensions
Deferments
Current Period Cumulative
less: Sales proceeds
less: Sales proceeds
Prepay Speed
|
Title: Inmates stolen identity
Question:My boyfriend is currently incarcerated and has been for several years. When talking about plans for the future, I asked how his credit was. He said that he's never checked but there might be a student loan on there, so he asked me to try to check it. I attempted to make a credit karma account for him, and when confirming my identity it said there was a mortgage taken out in his name December of 2016, and an auto loan June of 2014 (he has been in prison since April of 2014) I was unable to get any further information because it required me to identify the loan company and monthly payment for said loans, which I don't have because it wasn't him. I am just wondering where to go from here, and how much we could do considering he is in prison and we are not legally married. Advice please!! I am located in Indiana.
Answer #1: You were supposed to answer "None." They are just control questions.
"When did you buy your first house:
A)1999,
B) 2005,
**C**) I didn't." |
COUGAR OIL AND GAS CANADA INC. Suite 1120, 833 – 4 Avenue S.W. Calgary, AlbertaT2P 3T5 Phone:+1 403-262-8044 Fax:+1 403-513-2670 info@cougarenergyinc.com www.cougarenergyinc.com November 22, 2011 Mr. Karl Hiller Branch Chief United States Securities and Exchange Commission Washington DC 20549 Re:As related to your letter of November 4, 2011 DearSirs: I am responding to your letter to Cougar Oil and Gas Canada Inc. (“Company”), dated November 4, 2011. Due to a key staff member not in office for the last 2 weeks, and the majority of our focused efforts to file Cougar Oil and Gas Canada, Inc 3d quarter financials on SEDAR and as information in a 6K on EDGAR – we have not adequate time to provide a response to that letter. We ask for additional time until November 25, 2011 to provide the response. Sincerely. Wm S (Bill) Tighe 403-513-2663 CEO Cougar Oil and Gas Canada, Inc.
|
Title: [BC, Canada] Do I have to tell a prospective landlord about my service animal?
Question:I'm looking for a place to live in an extremely tight rental market. I have a service animal that alerts me if I am about to have a seizure.
I know that landlords are not *supposed* to disqualify me from consideration because I have a service animal, but what landlords are supposed to do doesn't always match up with what they actually do.
I have applied for 42 apartments. I have been forthcoming about my service animal, she has been with me when I've viewed these units. I have received no calls back and I strongly suspect that she is the reason why.
She is **not** a pet, so legally she would not be a violation of a no-pets clause in a lease.
Am I able to just look at these units without her, decline to mention that I have a disability and a service animal, and then move in with her when I find a place?
Answer #1: Just to be clear; your dog is trained to complete a specific task to assist with your disability and is certified by the province as a service dog? |
Name: COMMISSION REGULATION (EC) No 3028/95 of 22 December 1995 on the supply of fruit juice and fruit jams intended for the people of Armenia and Azerbaijan
Type: Regulation
Date Published: nan
29 . 12. 95 EN Official Journal of the European Communities No L 315/31 COMMISSION REGULATION (EC) No 3028/95 of 22 December 1995 on the supply of fruit juice and fruit jams intended for the people of Armenia and Azerbaijan THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Community, Having regard to Council Regulation (EC) No 1975/95 of 4 August 1995 on actions for the free supply of agricul tural products to the people of Georgia, Armenia, Azer baijan, Kyrgyzstan and Tajikistan ('), and in particular Article 4 (3) thereof, Whereas, Regulation (EC) No 1975/95 provides that actions for the free supply of agricultural products may relate to foodstuffs available or capable of being obtained on the market by means of payment with products available following intervention measures ; Whereas, to respond to requests from the beneficiary States for fruit juices and fruit jams, it is appropriate to open a tender to determine the most advantageous condi tions for the supply of such products and to provide the payment of the successful tenderer with fruit withdrawn from the market following the withdrawal operations in application of Articles 1 5 and 1 5A of Council Regulation (EEC) No 1035/72 of 18 May 1972 on the common orga nization of the market in fruit and vegetables ^), as last amended by Commission Regulation (EC) No 1363/95 (3); Whereas, it is appropriate to provide for the application of Commission Regulation (EC) No 2009/95 (4), laying down the rules for the application of Regulation (EC) No 1975/95, and in particular Article 2 (2) thereof, subject to the provisions of the present Regulation ; Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Fruit and Vegetables, and in particular Article 2 (2) thereof and the specific provisions of the present Regulation . Article 2 The supply shall include : (a) delivery of the foodstuffs specified in Annex I, free on board, stowed on board ship. The loading rate of the port proposed must be at least 1 000 tonnes per day ; (b) the packaging and marking of the product in accord ance with the instructions set out in Annex I ; (c) the holding available of the goods for a period of 30 days from the dates fixed in Annex I for the supply. Article 3 1 . In accordance with Article 4 of Regulation (EC) No 2009/95 the offers shall be presented to the following address : Commission of the European Communities, EAGGF-Guarantee, Division VI/G.2 (Office 10/05 or 10/08), Rue de la Loi/Wetstraat 130 , B-1049 Brussels. The closing date for the lodgement of tenders shall be 15 January 1996 at 5 p.m. (Brussels time). In the case of non-acceptance of offers on 15 January 1996, a second closing date for the lodgement of offers shall be 25 January 1996 at 12 noon (Brussels time). In this case all of the dates referred to in Annex I shall be carried forward by 10 days. 2 . The offer of the tenderer shall indicate, for each lot, the total quantity of fruit, withdrawn from the market in accordance with Articles 15 and 15A of Regulation (EEC) No 1035/72, which he undertakes : (a) to take over from the producer organizations concerned, in payment of all supply costs to the deli very stage defined in Article 2 ; (b) not to put on the fresh market again . The offer shall be expressed in net weight for each of the products covered by the offer. 3 . The tendering security referred to at Article 6 (1 ) (f) of Regulation (EC) No 2009/95 is fixed at ECU 25 per tonne of product to be supplied. HAS ADOPTED THIS REGULATION : Article 1 A tendering procedure is hereby initiated for the supply of a maximum of 2 000 tonnes of fruit juices and 1 000 tonnes of fruit jams as indicated in Annex I, in accor dance with the provisions of Regulation (EC) No 2009/95, ( «) OJ No L 191 , 12. 8 . 1995, p. 2. (*) OJ No L 118 , 20 . 5. 1972, p. 1 . 0 OJ No L 132, 16. 6 . 1995 , p. 8 . W OJ No L 196, 19 . 8 . 1995, p. 4. No L 315/32 PEN Official Journal of the European Communities 29 . 12. 95 4. The security referred to at Article 8 ( 1 ) of Regulation (EC) No 2009/95 is fixed at ECU 165 per tonne of fruit withdrawn from the market. Article 5 The successful tenderer shall undergo any controls or checks requested by the intervention agencies or the Commission . Article 6 1 . The removal certificate referred to in the third indent of Article 12 (3) of Regulation (EC) No 2009/95 shall be established on the basis of the model in Annex II . 2 . The take over certificate shall be established on the basis of the model in Annex III. Article 7 This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Communities. Article 4 The intervention agencies : (a) shall ensure the successful tenderers a priority access to the products withdrawn from the market with a view to providing the conditions for a proper execu tion of the supply operation ; (b) shall verify that the products taken over by the successful tenderer have been withdrawn from the market in accordance with Regulation (EEC) No 1035/72, and that for each product the quantities correspond to those of the offers of the successful tenderers communicated by the Commission . This Regulation shall be binding in its entirety and directly applicable in all Member States . ' Ddne at Brussels, 22 December 1995. For the Commission Franz FISCHLER Member of the Commission 29. 12. 95 EN Official Journal of the European Communities No L 315/33 ANNEX I Lot No 1 Product to be supplied : 500 tonnes (net) of apple juice as defined in Article 1 (5) of the Council Directive 93/77/EEC ('), and in accordance with the provisions of that Directive, to be deli vered to a single port. Characteristics and quality of the goods : BRIX 1 2 Delivery date : 8 February 1996 Product to be withdrawn : Apples Lot No 2 Product to be supplied : 500 tonnes (net) of apple juice as defined in Article 1 (5) of the Directive 93/77/EEC, and in accordance with the provisions of that Directive, to be deli vered to a single port. Characteristics and quality of the goods : BRIX 1 2 Delivery date : 12 February 1996 Product to be withdrawn : Apples Lot No 3 Product to be supplied : 500 tonnes (net) of orange juice as defined in Article 1 (5) of the Directive 93/77/EEC, and in accordance with the provisions of that Directive, to be deli vered to a single port. Characteristics and quality of the goods : BRIX 12 Delivery date : 16 February 1996 Product to be withdrawn : Oranges Lot No 4 Product to be supplied : 500 tonnes (net) of orange juice as defined in Article 1 (5) of the Directive 93/77/EEC, and in accordance with the provisions of that Directive, to be deli vered to a single port. Characteristics and quality of the goods : BRIX 1 2 Delivery date : 20 February 1996 Product to be withdrawn : Oranges Lot No 5 Product to be supplied : 500 tonnes (net) of diverse fruit jams as defined in point 2 of Annex I of the Council Directive 79/693/EEC (2), and in accordance with the provisions of that Directive, to be delivered to a single port. Characteristics and quality of the goods : Minimum 35 % fruit BRIX 65 Delivery date : 24 February 1996 Product to be withdrawn : Apples Lot No 6 Product to be supplied : 500 tonnes (net) of diverse fruit jams as defined in point 2 of Annex I of the Directive 79/693/EEC, and in accordance with the provisions of that Directive, to be delivered to a single port Characteristics and quality of the goods : Minimum 35 % fruit BRIX 65 Delivery date : 28 February 1996 Product to be withdrawn : Oranges (') OJ No L 244, 30. 9. 1993, p. 23 . M OJ No L 205, 13 . 8 . 1979, p. 5. No L 315/34 EN Official Journal of the European Communities 29 . 12. 95 Packaging : Lots 1 to 4 : The juice shall be packed in Tetrabrick' type packs of 1 litre which in turn shall be packed in cartons containing 12 litres . Lots 5 and 6 : The jams shall be packed in metal ' ring pull ' cans of 500 grammes net which in turn shall be packed in cartons containing 12 kilograms (net). Lots 1 to 6 : The cartons shall be packed on euro-pallets at the rate of 72 cartons per pallet The pallets shall be shrink wrapped and fastened by means of straps, four times vertically, twice in each direction . Marking : The 'tetrabrick' packs, the metal cans and the cartons shall bear the following information in the Russian language ; (a) the word 'Regulation ' followed by the appropriate number ; (b) the description of the product ; (c) the words 'European Community' ; (d) the net weight ; (e) the month and year of manufacture ; (f) the code or full name of the processing enterprise ; (g) the European flag, as defined in Annex I and II of OJ No C 114, 29. 4. 1991 . The dimensions of the information to be mentioned, and the European flag, on the 'tetrabrick' packs and the metal cans are those prescribed in Annex II of OJ No C 1 14, 29. 4. 1991 for 'tetrabrick' packs of 500 grams and metal cans of 340 to 440 grams. Stage of supply : Fob stowed. 29 . 12. 95 EN Official Journal of the European Communities No L 315/35 ANNEX II Certificate of removal of products withdrawn from the market Intervention agency : Tender Regulation : (EC) No Sucessful tenderer : Product : Lot No : Producer organization which carried out the withdrawal : Name : Address : Place of takeover : Quantities removed : Effective date of last physical removal : Signature, date and stamp of the intervention agency No L 315/36 EN Official Journal of the European Communities 29. 12. 95 ANNEX III Take-over certificate I, the undersigned (name/first name/position) acting on behalf of certify that the following goods have been taken over : Product : \ Packaging : Number of cartons : I pallets : I Total quantity in tonnes (net) : (gross) : Place and date of take over : I Name of boat : \ Name and address of monitoring agency : Name and signature of its on-the-spot representative : Observations or remarks : Signature and stamp of transporter |
Exhibit 10.1
AMENDMENT TO LOAN AGREEMENT
This Second Amendment, dated November 7, 2019 (the “Second Amendment”), to that
certain Loan Agreement and Promissory Note, dated October 3, 2019, as amended on
October 15, 2019 (collectively, the “Loan Agreement”) between SG Blocks, Inc.
(“Lender’) and CPF GP 2019-1 LLC (the “Borrower”), is entered into by and
between the Lender and Borrower. Capitalized terms used herein and not defined
WITNESSETH:
WHEREAS, the Lender and Borrower desire to amend the Loan Agreement to amend the
Section entitled “Lender Advances” as set forth below.
acknowledged, the parties hereto agree to amend the Loan Agreement as follows:
1. The Section entitled “Lender Advances” is hereby deleted and replaced with
the following:
“Lender Advances:
Lender shall make the first Advance in the amount of $500,000 no later than
Lender shall advance the remaining $250,000 no later than April 15, 2020.”
2.The Loan Agreement, as amended by this Second Amendment, contains the entire
agreement between the parties hereto regarding the subject matter thereof, and
therein or herein. This Second Amendment may not be modified or amended except
3.This Second Amendment shall be governed by and construed and enforced in
accordance with the local laws of the State of Delaware applicable to agreements
of laws principles.
4.This Second Amendment may be executed simultaneously in any number of
LENDER: BORROWER: SG BLOCKS, INC. CPF GP 2019-1 LLC By:
/s/ Paul M. Galvin By: /s/ Greg Jacobson Name: Paul M. Galvin Name: Greg
Jacobson Title: Chief Executive Officer Title: Manager
|
Exhibit 10.2
2005 Equity Incentive Plan, As Amended
Cardica, Inc.
2005 Equity Incentive Plan
As Amended by the Board of Directors: October 1, 2009
Approved by the Stockholders: November 11, 2009
1. General.
2. Definitions.
terms indicated below:
the Company; (iv) such
information or trade secrets; or (v) such Participant’s gross misconduct. The
its sole discretion. Any determination by the Company that the Continuous
of outstanding Stock Awards held by such Participant shall have no effect upon
transaction;
other disposition; or
Company.
its Subsidiaries;
Plan.
determined as follows:
promulgated thereunder.
Incentive Stock Option.
thereunder.
Award.
adjustments in the method of calculating the attainment of Performance Goals for
a Performance Period as follows: (i) to exclude restructuring and/or other
principles. The Board also retains the discretion to reduce or eliminate the
or any Affiliate.
3. Administration.
effective.
the authority to concurrently
some or all of the powers previously delegated.
3,435,377 shares of Common Stock. Such share reserve consists of the number of
3,400,000 shares of Common Stock. In addition, the share reserve shall be
maximum number of shares of Common Stock that may be
issued pursuant to the exercise of Incentive Stock Options shall be
1,658,377 shares of Common Stock plus the amount of any increase in the number
5. Eligibility.
following provisions:
the Code.
the Code.
obligations; or
the Option exercise.
Agreements need not be identical; provided,
law.
Agreement.
Continuous Service under the terms of the Stock Bonus Award Agreement.
Bonus Award Agreement.
law.
Unit Award Agreement.
Appreciation Right on
such date, over (ii) an amount (the strike price) that will be determined by the
Board at the time of grant of the Stock Appreciation Right.
Stock Appreciation Right.
Stock Awards.
authority is obtained.
9. Miscellaneous.
terms.
Award:
lapse (contingent upon the effectiveness of the Corporate
Transaction). No vested Stock Unit Award shall terminate pursuant to this
Section 10(c)(ii) without being settled by delivery of shares of Common Stock,
Corporate Transaction.
exercised notwithstanding the Corporate Transaction. No vested Stock Unit Award
shall terminate pursuant to this Section 10(c)(iii) without being settled by
such exercise.
to, amendments to provide terms more favorable than
terminated.
|
Execution Version
INTERCREDITOR AGREEMENT
DATED AS OF
FEBRUARY 17, 2016
BETWEEN
AS PRIORITY LIEN AGENT
AND
AS SECOND LIEN COLLATERAL TRUSTEE
THIS IS THE INTERCREDITOR AGREEMENT REFERRED TO IN (A) THE INDENTURE DATED AS OF
FEBRUARY 17, 2016, AMONG PETROQUEST ENERGY, INC., THE SUBSIDIARY GUARANTORS
NAMED THEREIN AND WILMINGTON TRUST, NATIONAL ASSOCIATION, AS TRUSTEE, (B) THE
CREDIT AGREEMENT DATED AS OF OCTOBER 8, 2008, AS AMENDED, SUPPLEMENTED, RESTATED
OR OTHERWISE MODIFIED FROM TIME TO TIME, AMONG PETROQUEST ENERGY, L.L.C., AS
BORROWER, PETROQUEST ENERGY, INC., AS PARENT, THE LENDERS PARTY THERETO FROM
TIME TO TIME AND JPMORGAN CHASE BANK, N.A., AS ADMINISTRATIVE AGENT, (C) THE
OTHER NOTE DOCUMENTS REFERRED TO IN SUCH INDENTURE AND (D) THE OTHER LOAN
DOCUMENTS REFERRED TO IN SUCH CREDIT AGREEMENT.
5279325v2
TABLE OF CONTENTS
Page No.
Article I
DEFINITIONS 1
Section 1.01
Article II
LIEN PRIORITIES 16
Section 2.01
Relative Priorities 16
Section 2.02
Prohibition on Marshalling, Etc 17
Section 2.03
No New Liens 18
Section 2.04
Similar Collateral and Agreements 18
Section 2.05
No Duties of Priority Lien Agent 19
Section 2.06
No Duties of Second Lien Collateral Trustee 20
Article III
ENFORCEMENT RIGHTS; PURCHASE OPTION 21
Section 3.01
Limitation on Enforcement Action 21
Section 3.02
Standstill Periods; Permitted Enforcement Action 22
Section 3.03
Insurance 25
Section 3.04
Notification of Release of Collateral 26
Section 3.05
No Interference; Payment Over 26
Section 3.06
Purchase Option 29
Article IV
OTHER AGREEMENTS 31
Section 4.01
Release of Liens; Automatic Release of Second Liens and Third Liens 31
Section 4.02
Certain Agreements With Respect to Insolvency or Liquidation Proceedings 32
Section 4.03
Reinstatement 39
Section 4.04
Refinancings; Additional Second Lien Debt; Initial Third Lien Indebtedness;
Additional Third Lien Debt 40
i
Section 4.05
Amendments to Second Lien Documents and Third Lien Documents 42
Section 4.06
Legends 43
Section 4.07
Second Lien Secured Parties and Third Lien Secured Parties Rights as Unsecured
Creditors; Judgment Lien Creditor 43
Section 4.08
Postponement of Subrogation 43
Section 4.09
Acknowledgment by the Secured Debt Representatives 44
Section 4.10
Permitted Prepayments of Second Lien Obligations and Third Lien
Obligations 44
Article V
GRATUITOUS BAILMENT FOR PERFECTION OF CERTAIN SECURITY INTERESTS 44
Section 5.01
General 44
Section 5.02
Deposit Accounts 45
Article VI
APPLICATION OF PROCEEDS; DETERMINATION OF AMOUNTS 46
Section 6.01
Application of Proceeds 46
Section 6.02
Determination of Amounts 47
Article VII
47
Section 7.01
No Reliance; Information 47
Section 7.02
No Warranties or Liability 48
Section 7.03
Obligations Absolute 49
Section 7.04
Grantors Consent 49
Article VIII
REPRESENTATIONS AND WARRANTIES 50
Section 8.01
Representations and Warranties of Each Party 50
Section 8.02
Representations and Warranties of Each Representative 50
ii
Article IX
MISCELLANEOUS 50
Section 9.01
Notices 50
Section 9.02
Waivers; Amendment 51
Section 9.03
Actions Upon Breach; Specific Performance 52
Section 9.04
Parties in Interest 53
Section 9.05
Survival of Agreement 53
Section 9.06
Counterparts 53
Section 9.07
Severability 53
Section 9.08
Governing Law; Jurisdiction; Consent to Service of Process 53
Section 9.09
Section 9.10
Headings 54
Section 9.11
Conflicts 54
Section 9.12
Provisions Solely to Define Relative Rights 54
Section 9.13
Certain Terms Concerning the Second Lien Collateral Trustee and the Third Lien
Collateral Trustee 54
Section 9.14
Certain Terms Concerning the Priority Lien Agent, the Second Lien Collateral
Trustee and the Third Lien Collateral Trustee 55
Section 9.15
Authorization of Secured Agents 55
Section 9.16
Further Assurances 55
Section 9.17
Relationship of Secured Parties 56
Section 9.18
Third Lien Provisions 56
ANNEX AND EXHIBITS
Annex I — Legends
Exhibit A — Form of Priority Confirmation Joinder
Exhibit B — Security Documents
iii
iv
INTERCREDITOR AGREEMENT, dated as of February 17, 2016 (as amended, supplemented
this “Agreement”), between JPMORGAN CHASE BANK, N.A., as administrative agent
Priority Lien Agent”) and WILMINGTON TRUST, NATIONAL ASSOCIATION, solely in its
capacity as collateral trustee for the Second Lien Secured Parties referred to
“Original Second Lien Collateral Trustee”).
Reference is made to (a) the Priority Credit Agreement (defined below) and (b)
the Second Lien Indenture (defined below) governing the Second Lien Indenture
Notes (defined below).
From time to time following the date hereof, PetroQuest Energy, Inc., a Delaware
corporation (together with its successors and assigns, the “Company”) may (i)
incur Additional Notes and Additional Second Lien Obligations (each defined
below) to the extent permitted by the Secured Debt Documents (as defined below)
in connection with the Second Lien Indenture and any Additional Notes or
Additional Second Lien Obligations, and the Company and certain Grantors
(defined below), the Second Lien Trustee (defined below) and the Second Lien
Collateral Trustee (defined below) have entered into the Second Lien Collateral
Trust Agreement (defined below), and (ii) incur Initial Third Lien Obligations
and Additional Third Lien Obligations (each as defined below) to the extent
permitted by the Secured Debt Documents (as defined below) in connection with
the Initial Third Lien Obligations, and the Company, certain of its subsidiaries
and the Third Lien Collateral Trustee (defined below) shall, concurrently with
the incurrence of such Additional Third Lien Obligations, enter into a Third
Lien Collateral Trust Agreement (defined below).
Lien Secured Parties) and the Second Lien Collateral Trustee (for itself and on
behalf of the Second Lien Secured Parties) agree as follows:
Article I
DEFINITIONS
Section 1.01 Construction; Certain Defined Terms. The definitions of terms
effect as the word “shall.” Unless the context requires otherwise, (%4) any
otherwise modified, (%4) any reference herein to any Person shall be construed
subsidiaries, (23) the words “herein,” “hereof and “hereunder,” and words of
and not to any particular provision hereof, (23) all references herein to
and Annexes of this Agreement, (23) unless otherwise expressly qualified herein,
(23) the term “or” is not exclusive.
1
5279325v2
New York UCC.
(b) Unless otherwise set forth herein, all references herein to (%4) the
Second Lien Collateral Trustee shall be deemed to refer to the Second Lien
Collateral Trustee in its capacity as collateral trustee under the Second Lien
Collateral Trust Agreement and (%4) the Third Lien Collateral Trustee shall be
deemed to refer to the Third Lien Collateral Trustee in its capacity as
collateral trustee under the Third Lien Collateral Trust Agreement.
(c) All terms capitalized but not defined herein shall have the meaning
assigned to them in the Priority Credit Agreement as in effect on the date
hereof.
specified below:
“Additional Notes” has the meaning given to such term in the Second Lien
“Additional Second Lien Debt Facility” means any Debt for which the requirements
of Section 4.04(b) of this Agreement have been satisfied, as amended, restated,
modified, renewed, refunded, restructured, increased, supplemented, replaced or
applicable Secured Debt Document; provided that neither the Second Lien
Indenture nor any Second Lien Substitute Facility shall constitute an Additional
Second Lien Debt Facility at any time.
“Additional Second Lien Documents” means the Additional Second Lien Debt
Facility and the Additional Second Lien Security Documents.
“Additional Second Lien Obligations” means, with respect to any Grantor, any
Obligations of such Grantor owed to any Additional Second Lien Secured Party (or
any of its Affiliates) in respect of the Additional Second Lien Documents.
“Additional Second Lien Secured Parties” means, at any time, the Second Lien
Collateral Trustee, the trustees, agents or other representatives of the holders
of any Series of Second Lien Debt who maintain the transfer register for such
Series of Second Lien Debt, the beneficiaries of each indemnification obligation
undertaken by any Grantor under any Additional Second Lien Document and each
other holder of, or obligee in respect of, any holder or lender pursuant to any
Series of Second Lien Debt outstanding at such time; provided that the Indenture
Second Lien Secured Parties shall not be deemed Additional Second Lien Secured
Parties.
“Additional Second Lien Security Documents” means the Additional Second Lien
Debt Facility (insofar as the same grants a Lien on the Collateral) and any
other security agreements, pledge agreements, collateral assignments, mortgages,
deeds of trust, collateral agency agreements, control agreements, or grants or
purporting to create) a Lien upon the Second Lien Collateral in favor of the
Additional Second Lien Secured Parties.
2
5279325v2
“Additional Third Lien Debt Facility” means any Debt for which the requirements
modified, renewed, refunded, restated, restructured, increased, supplemented,
replaced or refinanced in whole or in part from time to time in accordance with
each applicable Secured Debt Document; provided that no Third Lien Substitute
Facility shall constitute an Additional Third Lien Debt Facility at any time.
“Additional Third Lien Documents” means the Additional Third Lien Debt Facility
and the Additional Third Lien Security Documents.
“Additional Third Lien Obligations” means, with respect to any Grantor, any
Obligations of such Grantor owed to any Additional Third Lien Secured Party (or
any of its Affiliates) in respect of the Additional Third Lien Documents.
“Additional Third Lien Secured Parties” means, at any time, the Third Lien
of any Series of Third Lien Debt who maintain the transfer register for such
Series of Third Lien Debt, the beneficiaries of each indemnification obligation
undertaken by any Grantor under any Additional Third Lien Document and each
Series of Third Lien Debt outstanding at such time.
“Additional Third Lien Security Documents” means the Additional Third Lien Debt
Facility (insofar as the same grants a Lien on the Collateral) and any other
purporting to create) a Lien upon the Third Lien Collateral in favor of the
Additional Third Lien Secured Parties (including any such agreements,
associated with any Third Lien Substitute Facility).
“Bank Product” means each and any of the following bank services and products
provided to the Company or any other Grantor by any lender under the Priority
Credit Agreement or any Affiliate of any such lender: • commercial credit cards,
• stored value cards, and • Treasury Management Arrangements (including
“Bank Product Obligations” means any and all Obligations of the Company or any
other Grantor, whether absolute or contingent and howsoever and whensoever
modifications thereof and substitutions therefor) in connection with any Bank
Product.
3
5279325v2
“Board of Directors” means: • with respect to a corporation, the board of
directors of the corporation; • with respect to a partnership, the Board of
Directors of the general partner of the partnership; and • with respect to any
“Borrowing Base” has the meaning set forth in the Priority Credit Agreement.
into such equity.
“Class” means • in the case of Priority Lien Debt, the Priority Lien Debt, taken
together, • in the case of Second Lien Debt, every Series of Second Lien Debt,
taken together and • in the case of Third Lien Debt, every Series of Third Lien
Debt, taken together.
personal or mixed, constituting the Priority Lien Collateral, the Second Lien
Collateral and/or the Third Lien Collateral.
limitation, the Priority Credit Agreement), commercial paper facilities or other
debt instruments, indentures or agreements providing for revolving credit loans,
term loans, receivables financings (including through the sale of receivables to
the lenders or to special purpose entities formed to borrow from the lenders
against such receivables), letters of credit, capital markets financings and/or
private placements involving bonds or other debt securities, or other debt
obligations, in each case, as amended, restated, modified, renewed, refunded,
restructured, supplemented, replaced or refinanced from time to time in whole or
in part from time to time, including without limitation any amendment increasing
the amount of Debt incurred or available to be borrowed thereunder, extending
the maturity of any Debt incurred thereunder or contemplated thereby or
deleting, adding or substituting one or more parties thereto (whether or not
such added or substituted parties are banks or other institutional lenders).
defined in the other clauses of this definition) of others
4
5279325v2
“DIP Lenders” has the meaning assigned to such term in Section 4.02(b).
following:
any) on all Priority Lien Debt (other than any undrawn letters of credit);
(c) discharge or cash collateralization (in an amount equal to the lesser of
(%4) 105% of the aggregate undrawn amount and (%4) the percentage of the
constituting Priority Lien Obligations and the aggregate fronting and similar
credit;
(d) payment in full in cash of Hedging Obligations constituting Priority Lien
Obligations (and, with respect to any particular agreement regarding Hedging
Obligations, termination of such agreement and payment in full in cash of all
Obligations thereunder or such other arrangements as have been made by the
counterparty thereto (and communicated to the Priority Lien Agent) pursuant to
the terms of the Priority Credit Agreement); and
(e) payment in full in cash of all other Priority Lien Obligations, including
without limitation, Bank Product Obligations, that are outstanding and unpaid at
the time the Priority Lien Debt is paid in full in cash (other than any
made at or prior to such time);
provided however that, if, at any time after the Discharge of Priority Lien
Obligations has occurred, the Company enters into any Priority Lien Document
applicable Secured Debt Documents, then such Discharge of Priority Lien
Obligations
5
5279325v2
Agreement with respect to such new Priority Lien Obligations (other than with
Discharge of Priority Lien Obligations), and, from and after the date on which
the Company designates such Debt as Priority Lien Debt in accordance with this
Agreement, the Obligations under such Priority Lien Document shall automatically
and without any further action be treated as Priority Lien Obligations for all
rights in respect of Collateral set forth in this Agreement, any Second Lien
Obligations shall be deemed to have been at all times Second Lien Obligations
and at no time Priority Lien Obligations and any Third Lien Obligations shall be
deemed to have been at all times Third Lien Obligations and at no time Priority
Lien Obligations or Second Lien Obligations. For the avoidance of doubt, a
Replacement as contemplated by Section 4.04(a) shall not be deemed to cause a
Discharge of Priority Lien Obligations.
following:
any) on all Second Lien Debt; and
(b) payment in full in cash of all other Second Lien Obligations that are
provided however that, if at any time after the Discharge of Second Lien
Obligations has occurred, the Company enters into any Second Lien Document
applicable Secured Debt Documents, then such Discharge of Second Lien
of this Agreement with respect to such new Second Lien Obligations (other than
Discharge of Second Lien Obligations), and, from and after the date on which the
Company designates such Debt as Second Lien Debt in accordance with this
Agreement, the Obligations under such Second Lien Document shall automatically
and without any further action be treated as Second Lien Obligations for all
rights in respect of Collateral set forth in this Agreement, any Third Lien
Obligations shall be deemed to have been at all times Third Lien Obligations and
at no time Second Lien Obligations. For the avoidance of doubt, a Replacement as
Second Lien Obligations.
meaning.
Obligations for the principal amount of Debt (including letters of credit and
letter of credit reimbursement obligations) under the Priority Credit Agreement
and/or any other Credit Facility pursuant to which Priority Lien Debt has been
definition of “Priority Lien Cap.”
government.
6
5279325v2
granted any Lien in favor of any of the Priority Lien Agent, the Second Lien
Collateral Trustee or the Third Lien Collateral Trustee on any of its assets or
properties to secure any of the Secured Obligations.
“Hedging Obligations” of any Person means the Obligations of such Person
pursuant to any Interest Rate Agreement, Currency Agreement or Oil and Gas
Hedging Contract.
“Indenture Excluded Property” has the meaning assigned to the term “Excluded
Property” in the Second Lien Indenture as in effect on the date hereof.
“Indenture Second Lien Documents” means the Second Lien Indenture, the Second
Lien Indenture Notes, the Indenture Second Lien Guarantees, the Indenture Second
Lien Security Documents and all other loan documents, notes, guarantees,
instruments and agreements governing or evidencing the Indenture Second Lien
Obligations or any Second Lien Substitute Facility.
“Indenture Second Lien Guarantees” has the meaning assigned to the term
“Guarantee” in the Second Lien Indenture as in effect on the date hereof.
“Indenture Second Lien Obligations” means, with respect to any Grantor, any
Obligations of such Grantor owed to any Indenture Second Lien Secured Party (or
any of its Affiliates) in respect of the Indenture Second Lien Documents.
“Indenture Second Lien Secured Parties” means, at any time, the Second Lien
Trustee, the Second Lien Collateral Trustee, the trustees, agents and other
representatives of the holders of the Second Lien Indenture Notes (including any
holders of notes pursuant to supplements executed in connection with the
issuance of any Series of Second Lien Debt under the Second Lien Indenture) who
maintain the transfer register for such Second Lien Indenture Notes or such
undertaken by any Grantor under any Indenture Second Lien Document and each
other holder of, or obligee in respect of, any Second Lien Indenture Notes, any
holder or lender pursuant to any Indenture Second Lien Document outstanding at
such time; provided that the Additional Second Lien Secured Parties shall not be
deemed Indenture Second Lien Secured Parties.
“Indenture Second Lien Security Documents” means the Second Lien Indenture
(insofar as the same grants a Lien on the Collateral), the Second Lien
Collateral Trust Agreement, each agreement listed in Part B of Exhibit B hereto
hereof, executed and delivered by the Company or any other Grantor creating (or
purporting to create) a Lien upon Collateral in favor of the Second Lien
Collateral Trustee (including any such agreements, assignments, mortgages, deeds
of trust and other documents or instruments associated with any Second Lien
Substitute Facility).
7
5279325v2
“Initial Third Lien Debt Facility” means Debt secured by a Third Lien for which
the requirements of Section 4.04(c) of this Agreement have been satisfied, as
time in accordance with each applicable Secured Debt Document.
“Initial Third Lien Documents” means the Initial Third Lien Debt Facility and
the Initial Third Lien Security Documents.
“Initial Third Lien Obligations” means, with respect to any Grantor, any
Obligations of such Grantor owed to any Initial Third Lien Secured Party (or any
of its Affiliates) in respect of the Initial Third Lien Documents.
“Initial Third Lien Secured Parties” means, at any time, the Third Lien Trustee,
the Third Lien Collateral Trustee, the trustees, agents and other
representatives of the holders of the Initial Third Lien Debt Facility
(including any holders of notes pursuant to supplements executed in connection
with the issuance of Series of Third Lien Debt under the Initial Third Lien Debt
Facility) who maintain the transfer register for such Third Lien Debt, the
any Initial Third Lien Document and each other holder of, or obligee in respect
of, any Initial Third Lien Obligations, any holder or lender pursuant to any
Initial Third Lien Document outstanding at such time; provided that the
Additional Third Lien Secured Parties shall not be deemed Initial Third Lien
Secured Parties.
“Initial Third Lien Security Documents” means the Initial Third Lien Debt
Initial Third Lien Secured Parties (including any such agreements, assignments,
Third Lien Substitute Facility).
insolvency; or
(c) any other proceeding of any type or nature (including any composition
agreement) in which substantially all claims of creditors of the Company or any
8
5279325v2
for security purposes or • production payments and the like payable out of Oil
servitudes, permits, conditions, covenants, exceptions or reservations.
“Modified ACNTA” has the meaning set forth in the Second Lien Indenture as in
effect on the date hereof, and any component definition used therein has the
or not drawn), interest (including, to the extent legally permitted, all
and other liabilities payable under the documentation governing any Debt.
the General Counsel, the Controller, the Secretary or Corporate Secretary, any
Executive Vice President, any Senior Vice President, any Vice President or any
any Officer of Company.
“Oil and Gas Hedging Contract” means any oil and gas hedging agreement and other
agreement or arrangement designed to protect the Company or any Grantor against
fluctuations in oil and gas prices.
“Oil and Gas Properties” means • Hydrocarbon Interests; • the Properties now or
hereafter pooled or unitized with Hydrocarbon Interests; • all presently
may affect all or any portion of the Hydrocarbon Interests; • all operating
attributable to such Hydrocarbon Interests; • all Hydrocarbons in and under and
revenues and other incomes from or attributable to the Hydrocarbon Interests; •
all tenements, hereditaments, appurtenances and Properties in any manner
appertaining, belonging, affixed or incidental to the Hydrocarbon Interests; and
• all Properties, rights, titles, interests and estates described or referred to
structures, fuel separators, liquid extraction plants,
9
5279325v2
plants and pipeline systems, power and cogeneration facilities and any
infrastructure related to any thereof, tanks and tank batteries, fixtures,
preamble hereto.
“Original Second Lien Collateral Trustee” has the meaning assigned to such term
“Original Second Lien Trustee” means Wilmington Trust, National Association, in
its capacity as trustee under the Second Lien Indenture, and together with its
or other entity.
“PQLLC” means PetroQuest Energy, L.L.C., a Louisiana limited liability company.
Exhibit A.
“Priority Credit Agreement” means the Credit Agreement, dated as of October 2,
2008, among PQLLC as borrower, the Company as parent guarantor, the Original
Priority Lien Agent, the lenders party thereto from time to time and the other
supplemented or otherwise modified from time to time with the same and/or
different lenders and/or agents and any credit agreement, loan agreement, note
“Priority Lien” means a Lien granted by the Company or any Grantor in favor of
the Priority Lien Agent, at any time, upon any Property of such Company or such
Grantor to secure Priority Lien Obligations (including Liens on such Collateral
under the security documents associated with any Priority Substitute Credit
Facility).
after the date of execution and delivery of a Priority Substitute Facility, the
holders of the Debt and other Obligations evidenced thereunder or governed
“Priority Lien Cap” means, as of any date, • the aggregate principal amount of
all Debt outstanding at any time under the Priority Credit Agreement (with
outstanding letters of credit being deemed to have a principal amount equal to
the stated amount thereof) not in excess of the greatest of (%4) $50,000,000,
(%4) the Borrowing Base in effect at the time of incurrence of such Debt, and
(%4) 30% of Modified ACNTA at the time of incurrence of such Debt plus • the
amount of all Hedging Obligations, to the extent such Hedging Obligations are
secured by the Priority Liens, plus • the amount of all Bank Product
Obligations, plus • the
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amount of accrued and unpaid interest (excluding any interest paid-in-kind) and
outstanding fees, to the extent such Obligations are secured by the Priority
Liens, plus (e) any amount of protective advances made by the First Lien Secured
Parties in respect of any Collateral (including advances for insurance, taxes
and maintenance of Collateral), plus (f) fees, indemnifications, reimbursements
and expenses as may be due pursuant to the terms of any Priority Lien Debt.
“Priority Lien Collateral” means all “Collateral”, as defined in the Priority
Credit Agreement or any other Priority Lien Document, and any other assets of
any Grantor now or at any time hereafter subject to Liens which secure, but only
to the extent securing, any Priority Lien Obligation.
“Priority Lien Debt” means the Debt under the Priority Credit Agreement
and all Debt incurred under any Priority Substitute Credit Facility.
Hedging Obligations and the Bank Product Obligations, provided that Hedging
Obligations shall only constitute Priority Lien Obligations to the extent that
such Hedging Obligations are secured under the terms of the Priority Credit
payment with respect to the Priority Lien Obligations (whether by or on behalf
of the Company, as proceeds of security, enforcement of any right of set-off, or
otherwise) is declared to be fraudulent or preferential in any respect, set
aside, or required to be paid to a debtor in possession, trustee, receiver, or
similar Person, then the Obligation or part thereof originally intended to be
satisfied will be deemed to be reinstated and outstanding as if such payment had
not occurred.
“Priority Lien Secured Parties” means, at any time, (a) the Priority Lien Agent,
(b) each lender or issuing bank under the Priority Credit Agreement, (c) each
Obligation that is a lender under the Priority Credit Agreement or an Affiliate
(as defined herein or in the Priority Credit Agreement) thereof at the time such
Hedging Obligation or Bank Product Obligation is entered into, or is a secured
party (or a party entitled to the benefits of the security) under any Priority
Lien Document, (d) the beneficiaries of each indemnification obligation
undertaken by any Grantor under any Priority Lien Document, (e) each other
Person that provides letters of credit, guarantees or other credit support
related thereto under any Priority Lien Document and (f) each other holder of,
or obligee in respect of, any Priority Lien Obligations (including pursuant to a
Priority Substitute Credit Facility), in each case to the extent designated as a
Priority Lien Document outstanding at such time.
executed and delivered by
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the Company or any other Grantor creating (or purporting to create) a Lien upon
Collateral in favor of the Priority Lien Agent (including any such agreements,
associated with any Priority Substitute Credit Facility).
“Replaces” means, • in respect of any agreement with reference to the Priority
Credit Facility, that such agreement refunds, refinances, amends and restates or
replaces the Priority Credit Agreement, the Priority Lien Obligations or such
Priority Substitute Credit Facility in whole (in a transaction that is in
compliance with Section 4.04(a)) and that all commitments thereunder are
terminated, or, to the extent permitted by the terms of the Priority Credit
Agreement, Priority Lien Obligations or such Priority Substitute Credit
Facility, in part, • in respect of any agreement with reference to the Second
Lien Documents, the Second Lien Obligations or any Second Lien Substitute
Facility, that such Debt refunds, refinances, amends and restates or replaces
the Second Lien Documents, the Second Lien Obligations or such Second Lien
Substitute Facility in whole (in a transaction that is in compliance with
Section 4.04(a)) and that all commitments thereunder are terminated, or, to the
extent permitted by the terms of the Second Lien Documents, the Second Lien
Obligations or such Second Lien Substitute Facility, in part, and • in respect
of any agreement with reference to the Third Lien Documents, the Third Lien
Obligations or any Third Lien Substitute Facility, that such Debt refunds,
refinances, amends and restates or replaces the Third Lien Documents, the Third
Lien Obligations or such Third Lien Substitute Facility in whole (in a
thereunder are terminated, or, to the extent permitted by the terms of the Third
Lien Documents, the Third Lien Obligations, or such Third Lien Substitute
Facility, in part. “Replace,” “Replaced” and “Replacement” shall have
correlative meanings.
Collateral Trustee, at any time, upon any Collateral by any Grantor to secure
Second Lien Obligations (including Liens on such Collateral under the security
documents associated with any Second Lien Substitute Facility).
Obligations.
“Second Lien Collateral Trust Agreement” means the Collateral Trust Agreement,
dated as of February 17, 2016, among the Company, the other Grantors from time
to time party thereto, the Second Lien Trustee, the other Second Lien
Representatives from time to time party thereto and the Second Lien Collateral
Trustee, as amended, restated, adjusted, waived, renewed, extended, supplemented
or otherwise modified from time to time, in accordance with each applicable
Second Lien Document.
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“Second Lien Collateral Trustee” means the Original Second Lien Collateral
Trustee, together with its successors in such capacity appointed pursuant to the
terms of the Second Lien Collateral Trust Agreement.
“Second Lien Debt” means the Debt under the Second Lien Indenture Notes issued
on the date hereof and guarantees thereof and all additional Debt incurred under
any Additional Second Lien Documents and all additional Debt in respect of
Additional Notes and guarantees thereof, in each case, that was permitted to be
incurred and secured in accordance with the Secured Debt Documents and with
respect to which the requirements of Section 4.04(b) have been (or are deemed)
satisfied, and all Debt incurred under any Second Lien Substitute Facility.
“Second Lien Documents” means the Indenture Second Lien Documents and the
“Second Lien Indenture” means the Indenture, dated as of February 17, 2016,
among the Company, the Grantors party thereto from time to time, the Second Lien
Collateral Trustee and the Second Lien Trustee, as amended, restated, adjusted,
waived, renewed, extended, supplemented or otherwise modified from time to time
in accordance with the terms hereof (including any supplements executed in
connection with the issuance of any Series of Second Lien Debt under the Second
Lien Indenture) unless restricted by the terms of this Agreement, and any credit
other agreement or instrument evidencing or governing the terms of any Second
Lien Substitute Facility.
“Second Lien Indenture Notes” means • the 10% Second Lien Secured Notes due 2021
issued under the Second Lien Indenture on the date hereof, and • any Additional
Notes for which the requirements of Section 3.8 of the Second Lien Collateral
Trust Agreement have been satisfied.
“Second Lien Obligations” means Second Lien Debt and all other Obligations in
respect thereof. Notwithstanding any other provision hereof, the term “Second
incurred under the Second Lien Indenture and the other Second Lien Documents,
whether incurred before or after commencement of an Insolvency or Liquidation
Proceeding and whether or not allowable in an Insolvency or Liquidation
Proceeding.
“Second Lien Representative” means • in the case of the Second Lien Indenture
Notes, the Second Lien Trustee, and • in the case of any other Series of Second
Second Lien Debt who (%4) is appointed as a Second Lien Representative (for
purposes related to the administration of the security documents) pursuant to
the indenture, credit agreement or other agreement governing such Series of
Second Lien Debt, together with its successors in such capacity, and (%4) has
become party to the Second Lien Collateral Trust Agreement by executing a
joinder in the form required under the Second Lien Collateral Trust Agreement.
“Second Lien Secured Parties” means the Indenture Second Lien Secured Parties
and the Additional Second Lien Secured Parties.
“Second Lien Security Documents” means the Indenture Second Lien Security
Documents and the Additional Second Lien Security Documents.
“Second Lien Standstill Period” has the meaning assigned to such term in Section
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requirements contained in Section 4.04(a) and (b) of this Agreement have been
satisfied and that is permitted to be incurred pursuant to the Priority Lien
Second Lien Indenture and/or any Additional Second Lien Debt Facility then in
existence. For the avoidance of doubt, no Second Lien Substitute Facility shall
be required to be evidenced by notes or other instruments and may be a facility
any such Second Lien Substitute Facility shall be subject to the terms of this
Agreement for all purposes (including the lien priority as set forth herein as
of the date hereof) as the other Liens securing the Second Lien Obligations are
subject to under this Agreement.
“Second Lien Trustee” means the Original Second Lien Trustee, together with its
successors in such capacity appointed pursuant to the terms of the Second Lien
Indenture.
Documents and the Third Lien Documents.
“Secured Debt Representative” means the Priority Lien Agent, the Second Lien
Collateral Trustee and the Third Lien Collateral Trustee.
“Secured Obligations” means the Priority Lien Obligations, the Second Lien
Obligations and the Third Lien Obligations.
“Secured Parties” means the Priority Lien Secured Parties, the Second Lien
Secured Parties and the Third Lien Secured Parties.
“Security Documents” means the Priority Lien Security Documents, the Second Lien
Security Documents and the Third Lien Security Documents.
“Series of Second Lien Debt” means, severally, the Second Lien Indenture Notes
and each other issue or series of Second Lien Debt (including any Additional
Second Lien Debt Facility) for which a single transfer register is maintained.
“Series of Secured Debt” means the Priority Lien Debt, each Series of Second
Lien Debt and each Series of Third Lien Debt.
“Series of Third Lien Debt” means, severally, the Initial Third Lien Debt
Facility and each other issue or series of Third Lien Debt (including any
Additional Third Lien Debt Facility) for which a single transfer register is
maintained.
“Standstill Period” means the Second Lien Standstill Period, the Third Lien
First Standstill Period and the Third Lien Second Standstill Period, as
applicable.
indirectly, by • such Person, • such Person and one or more Subsidiaries of such
Person or • one or more Subsidiaries of such Person.
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“Third Lien” means a Lien granted by a Third Lien Document to the Third Lien
Third Lien Obligations (including Liens on such Collateral under the security
documents associated with any Third Lien Substitute Facility).
“Third Lien Collateral” means all “Collateral”, as defined in any Third Lien
subject to Liens which secure, but only to the extent securing, any Third Lien
Obligations.
“Third Lien Collateral Trust Agreement” means from and after the date of
execution and delivery of the Initial Third Lien Debt Facility, a collateral
trust agreement entered into among the Company, the other Grantors, the Third
Lien Trustee, the other Third Lien Representatives and the Third Lien Collateral
Third Lien Document.
“Third Lien Collateral Trustee” means from and after the date of execution and
delivery of the Initial Third Lien Debt Facility, the agent, collateral agent,
trustee, collateral trustee or other representative of the lenders or other
thereby, in each case, together with its successors in such capacity pursuant to
the terms of the Third Lien Collateral Trust Agreement.
“Third Lien Debt” means Debt under the Initial Third Lien Debt Facility and Debt
incurred under any Additional Third Lien Documents and with respect to which the
requirements of Section 4.04(c) have been satisfied, and all Debt incurred under
any Third Lien Substitute Facility.
“Third Lien Documents” means the Initial Third Lien Documents, the Additional
Third Lien Documents and all other loan documents, notes, guarantees,
instruments and agreements governing or evidencing any Third Lien Substitute
Facility.
“Third Lien First Standstill Period” has the meaning assigned to such term in
Section 3.02(a)(ii).
“Third Lien Obligations” means Third Lien Debt and all other Obligations in
respect thereof. Notwithstanding any other provision hereof, the term “Third
incurred under the Third Lien Documents, whether incurred before or after
“Third Lien Representative” means • in the case of the Initial Third Lien Debt
Facility, the Third Lien Trustee and • in the case of any other Series of Third
Third Lien Debt who (%4) is appointed as a Third Lien Representative (for
become party to the Third Lien Collateral Trust Agreement by executing a joinder
in the form required under the Third Lien Collateral Trust Agreement.
“Third Lien Second Standstill Period” has the meaning assigned to such term in
“Third Lien Secured Parties” means the Initial Third Lien Secured Parties and
the Additional Third Lien Secured Parties.
“Third Lien Security Documents” means the Initial Third Lien Security Documents
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“Third Lien Substitute Facility” means any facility with respect to which the
Documents and the Second Lien Documents, the proceeds of which are used to,
among other things, Replace any Initial Third Lien Debt Facility and/or
Additional Third Lien Debt Facility then in existence. For the avoidance of
doubt, no Third Lien Substitute Facility shall be required to be evidenced by
notes or other instruments and may be a facility evidenced or governed by a
any other agreement or instrument; provided that any such Third Lien Substitute
(including the lien priority as set forth herein as of the date hereof) as the
other Liens securing the Third Lien Obligations are subject to under this
Agreement.
“Third Lien Trustee” means, from and after the date of execution and delivery of
the Initial Third Lien Debt Facility or Third Lien Substitute Facility, the
thereby, together with its successors in such capacity.
ARTICLE II
LIEN PRIORITIES
Section 2.01 Relative Priorities. • The grant of the Priority Liens pursuant
to the Priority Lien Documents, the grant of the Second Liens pursuant to the
Second Lien Documents and the grant of the Third Liens pursuant to the Third
Lien Documents create three separate and distinct Liens on the Collateral.
(a) Notwithstanding anything contained in this Agreement, the Priority Lien
Documents, the Second Lien Documents, the Third Lien Documents or any other
agreement or instrument or operation of law to the contrary, or any other
circumstance whatsoever and irrespective of (%4) how a Lien was acquired
(whether by grant, possession, statute, operation of law, subrogation, or
otherwise), (%4) the time, manner, or order of the grant, attachment or
perfection of a Lien, (%4) any conflicting provision of the New York UCC or
other applicable law, (%4) any defect in, or non-perfection, setting aside, or
avoidance of, a Lien or a Priority Lien Document, a Second Lien Document or a
Third Lien Document, (%4) the modification of a Priority Lien Obligation, a
Second Lien Obligation or a Third Lien Obligation, or (%4) the subordination of
a Lien on Collateral securing a Priority Lien Obligation to a Lien securing
another obligation of the Company or other Person that is permitted under the
Financing, each of the Second Lien Collateral Trustee, on behalf of itself and
the other Second Lien Secured Parties, and the Third Lien Collateral Trustee, on
behalf of itself and the other Third Lien Secured Parties, hereby agrees that
(%5) any Priority Lien on any Collateral now or hereafter held by or for the
operation, effect and all other respects to (%6) any and all Second Liens on any
Collateral and (%6) any and all Third Liens on any Collateral, (%5) any Second
Lien on any Collateral now or hereafter held by or for
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the benefit of any Second Lien Secured Party shall be (%6) junior and
subordinate in right, priority, operation, effect and all other respects to any
and all Priority Liens on any Collateral, in any case, subject to the Priority
Lien Cap as provided herein and (%6) senior in right, priority, operation,
effect and all other respects to any and all Third Liens on any Collateral, and
(%5) any Third Lien on any Collateral now or hereafter held by or for the
benefit of any Third Lien Secured Party shall be junior and subordinate in
right, priority, operation, effect and all other respects to (%6) any and all
Priority Liens on any Collateral and (%6) any and all Second Liens on any
Collateral.
(b) It is acknowledged that, subject to the Priority Lien Cap (as provided
herein), (%4) the aggregate amount of the Priority Lien Obligations may be
Documents, (%4) a portion of the Priority Lien Obligations consists or may
consist of Debt that is revolving in nature, and the amount thereof that may be
subsequently reborrowed, and (%4)(%5) the Priority Lien Documents may be
from time to time and (%5) the Priority Lien Obligations may be increased,
Second Liens or Third Liens hereunder or the provisions of this Agreement
defining the relative rights of the Priority Lien Secured Parties, the Second
Lien Secured Parties and the Third Lien Secured Parties. The lien priorities
Replacement of either the Priority Lien Obligations (or any part thereof), the
Second Lien Obligations (or any part thereof) or the Third Lien Obligations (or
Priority Lien Obligations or by any action that any Secured Debt Representative
Section 2.02 Prohibition on Marshalling, Etc. • Until the Discharge of
Priority Lien Obligations, the Second Lien Collateral Trustee will not assert
any marshalling, appraisal, valuation, or other similar right that may otherwise
be available to such Second Lien Collateral Trustee, for itself or as a
representative of another Person.
(a) Until the Discharge of Priority Lien Obligations and the Discharge of
Second Lien Obligations, the Third Lien Collateral Trustee will not assert any
marshalling, appraisal, valuation, or other similar right that may otherwise be
available to such Third Lien Collateral Trustee, for itself or as a
Section 2.03 No New Liens. The parties hereto agree that, • so long as the
shall, nor shall any Grantor permit any of its subsidiaries to, • grant or
permit any additional Liens on any asset of a Grantor to secure any Third Lien
Obligation, or take any action to perfect any additional Liens, unless it has
granted, or substantially concurrently therewith grants (or offers to grant), a
Lien on such asset of such Grantor to secure (%5) the Priority Lien Obligations
and has taken all actions required to perfect such Liens and (%5) the Second
Lien Obligations and has taken all actions required to perfect such Liens;
provided, however, the refusal or inability of the Priority Lien Agent or the
Second Lien Collateral Trustee to accept such Lien will not prevent the Third
Lien Collateral Trustee from taking the Lien, (%4) grant or permit any
additional Liens on any asset of a Grantor to secure any Second Lien Obligation,
asset of such Grantor to secure (%5) the Priority Lien Obligations and has taken
all actions required to perfect such Liens and (%5) the Third Lien Obligations
and has taken all actions required to perfect such Liens; provided, however, the
refusal or inability of the Priority Lien Agent or the Third Lien Collateral
Trustee to accept
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such Lien will not prevent the Second Lien Collateral Trustee from taking the
Lien, or (%4) grant or permit any additional Liens on any asset of a Grantor
(other than Indenture Excluded Property) to secure any Priority Lien Obligation,
asset of such Grantor to secure (%5) the Second Lien Obligations and has taken
refusal or inability of the Second Lien Collateral Trustee or the Third Lien
Collateral Trustee to accept such Lien will not prevent the Priority Lien Agent
from taking the Lien and, for the avoidance of doubt, this clause (iii) shall
not apply to any Indenture Excluded Property, and • after the Discharge of
Priority Lien Obligations but prior to the Discharge of Second Lien Obligations,
none of the Grantors shall, nor shall any Grantor permit any of its subsidiaries
to, (%4) grant or permit any additional Liens on any asset of a Grantor to
secure any Second Lien Obligation, or take any action to perfect any additional
Liens, unless it has granted, or substantially concurrently therewith grants (or
offers to grant), a Lien on such asset of such Grantor to secure the Third Lien
Obligations; provided, however, the refusal or inability of the Third Lien
Collateral Trustee to accept such Lien will not prevent the Second Lien
Collateral Trustee from taking the Lien or (%4) grant or permit any additional
Liens on any asset of a Grantor to secure any Third Lien Obligations unless it
has granted, or substantially concurrently therewith grants (or offers to
grant), a Lien on such asset of a Grantor to secure the Second Lien Obligations
refusal or inability of the Second Lien Collateral Trustee to accept such Lien
will not prevent the Third Lien Collateral Trustee from taking the Lien, with
each such Lien as described in clauses (a) and (b) of this Section 2.03 to be
subject to the provisions of this Agreement. To the extent that the provisions
without limiting any other right or remedy available to the Priority Lien Agent,
the other Priority Lien Secured Parties, the Second Lien Collateral Trustee or
the other Second Lien Secured Parties, each of the Second Lien Collateral
Trustee, for itself and on behalf of the other Second Lien Secured Parties and
the Third Lien Collateral Trustee, for itself and on behalf of the other Third
Lien Secured Parties, agrees that any amounts received by or distributed to any
Second Lien Secured Party or Third Lien Secured Party, as applicable, pursuant
shall be subject to Section 3.05(b).
acknowledge and agree that it is their intention that the Priority Lien
identical other than with respect to any Indenture Excluded Property which shall
not constitute either Second Lien Collateral or Third Lien Collateral. In
furtherance of the foregoing, the parties hereto agree • to cooperate in good
faith in order to determine, upon any reasonable request by the Priority Lien
Agent, the Second Lien Collateral Trustee or the Third Lien Collateral Trustee,
the specific assets included in the Priority Lien Collateral, the Second Lien
Collateral and the Third Lien Collateral, the steps taken to perfect the
Priority Liens, the Second Liens and the Third Liens thereon and the identity of
the respective parties obligated under the Priority Lien Documents, the Second
Lien Documents and the Third Lien Documents in respect of the Priority Lien
Obligations, the Second Lien Obligations and the Third Lien Obligations,
respectively, • that the Second Lien Security Documents creating Liens on the
Collateral shall be in all material respects the same forms of documents as the
respective Priority Lien Security Documents creating Liens on the Collateral
other than (%4) with respect to the priority nature of the Liens created
thereunder in such Collateral, (%4) such other modifications to such Second Lien
Security Documents which are less restrictive than the corresponding Priority
Lien Security Documents, (%4) provisions in the Second Lien Security Documents
which are solely applicable to the rights and duties of the Second Lien Secured
Parties, (%4) such deletions or modifications of representations, warranties and
covenants as are customary with respect to security documents establishing Liens
securing publicly traded debt securities and (%4) such deletions or
modifications necessary to exclude the Indenture Excluded Property from the
Second Lien Collateral, • that the Third Lien Security Documents creating Liens
on the Collateral shall be in all material respects the same
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forms of documents as the respective Priority Lien Security Documents and Second
Lien Security Documents creating Liens on the Collateral other than (%4) with
respect to the priority nature of the Liens created thereunder in such
Collateral, (%4) such other modifications to such Third Lien Security Documents
which are less restrictive than the corresponding Priority Lien Security
Documents and Second Lien Security Documents, (%4) provisions in the Third Lien
Security Documents which are solely applicable to the rights and duties of the
Third Lien Secured Parties, (%4) with such deletions or modifications of
representations, warranties and covenants as are customary with respect to
security documents establishing Liens securing publicly traded debt securities,
and (%4) such deletions or modifications necessary to exclude the Indenture
Excluded Property from the Third Lien Collateral, • that at no time shall there
be any Grantor that is an obligor in respect of the Second Lien Obligations that
is not also an obligor in respect of the Priority Lien Obligations and • that at
no time shall there be any Grantor that is an obligor in respect of the Third
Lien Obligations that is not also an obligor in respect of the Priority Lien
Obligations and the Second Lien Obligations.
Section 2.05 No Duties of Priority Lien Agent. Each of the Second Lien
Collateral Trustee, for itself and on behalf of each Second Lien Secured Party,
and the Third Lien Collateral Trustee, for itself and on behalf of each Third
Lien Secured Party, acknowledges and agrees that neither the Priority Lien Agent
nor any other Priority Lien Secured Party shall have any duties or other
obligations to any such Second Lien Secured Party or Third Lien Secured Party
with respect to any Collateral, other than to transfer to the Second Lien
Collateral Trustee any remaining Collateral and any proceeds of the sale or
other Disposition of any such Collateral remaining in its possession following
the associated Discharge of Priority Lien Obligations, in each case without
representation or warranty on the part of the Priority Lien Agent or any
Priority Lien Secured Party. In furtherance of the foregoing, each Second Lien
Secured Party and Third Lien Secured Party acknowledges and agrees that until
the Discharge of Priority Lien Obligations (subject to the terms of Section
3.02, including the rights of the Second Lien Secured Parties and the Third Lien
Secured Parties following the expiration of any applicable Standstill Period),
the Priority Lien Agent shall be entitled, for the benefit of the Priority Lien
Secured Parties, to sell, transfer or otherwise Dispose of or deal with such
Collateral, as provided herein and in the Priority Lien Documents, without
regard to • any Second Lien or any rights to which the Second Lien Collateral
Trustee or any Second Lien Secured Party would otherwise be entitled as a result
of such Second Lien or • any Third Lien or any rights to which the Third Lien
Collateral Trustee or any Third Lien Secured Party would otherwise be entitled
as a result of such Third Lien. Without limiting the foregoing, each Second Lien
Secured Party and Third Lien Secured Party agrees that neither the Priority Lien
Agent nor any other Priority Lien Secured Party shall have any duty or
obligation first to marshal or realize upon any type of Collateral, or to sell,
Dispose of or otherwise liquidate all or any portion of such Collateral, in any
manner that would maximize the return to the Second Lien Secured Parties or the
Third Lien Secured Parties, notwithstanding that the order and timing of any
such realization, sale, Disposition or liquidation may affect the amount of
proceeds actually received by the Second Lien Secured Parties or the Third Lien
Secured Parties, as applicable, from such realization, sale, Disposition or
liquidation. Each of the Second Lien Secured Parties and Third Lien Secured
Parties waives any claim such Second Lien Secured Party or Third Lien Secured
Party may now or hereafter have against the Priority Lien Agent or any other
Priority Lien Secured Party arising out of any actions which the Priority Lien
Agent or the Priority Lien Secured Parties take or omit to take (including
accordance with this Agreement and the Priority Lien Documents or the valuation,
use, protection or release of any security for the Priority Lien Obligations.
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Section 2.06 No Duties of Second Lien Collateral Trustee. The Third Lien
Collateral Trustee, for itself and on behalf of each Third Lien Secured Party,
acknowledges and agrees that neither the Second Lien Collateral Trustee nor any
other Second Lien Secured Party shall have any duties or other obligations to
such Third Lien Secured Party with respect to any Collateral, other than to
transfer to the Third Lien Collateral Trustee any remaining Collateral and any
proceeds of the sale or other Disposition of any such Collateral remaining in
its possession following the associated Discharge of Second Lien Obligations
(provided such Discharge of Second Lien Obligations occurs after the Discharge
of Priority Lien Obligations), in each case without representation or warranty
on the part of the Second Lien Collateral Trustee or any Second Lien Secured
Party. In furtherance of the foregoing, each Third Lien Secured Party
acknowledges and agrees that after the Discharge of Priority Lien Obligations
and until the Discharge of Second Lien Obligations (subject to the terms of
Section 3.02, including the rights of the Third Lien Secured Parties following
expiration of the Third Lien Second Standstill Period), the Second Lien
Collateral Trustee shall be entitled, for the benefit of the Second Lien Secured
as provided herein and in the Second Lien Documents, without regard to any Third
Lien or any rights to which the Third Lien Collateral Trustee or any Third Lien
Secured Party would otherwise be entitled as a result of such Third Lien.
Without limiting the foregoing, each Third Lien Secured Party agrees that
neither the Second Lien Collateral Trustee nor any other Second Lien Secured
type of Collateral, or to sell, Dispose of or otherwise liquidate all or any
portion of such Collateral, in any manner that would maximize the return to the
proceeds actually received by the Third Lien Secured Parties from such
realization, sale, Disposition or liquidation. Following the Discharge of
Priority Lien Obligations and the Discharge of Second Lien Obligations, the
Third Lien Collateral Trustee and the other Third Lien Secured Parties may,
subject to any other agreements binding on the Third Lien Collateral Trustee or
such other Third Lien Secured Parties, assert their rights under the New York
UCC or otherwise to any proceeds remaining following a sale, Disposition or
other liquidation of Collateral by, or on behalf of the Third Lien Secured
Parties. Each of the Third Lien Secured Parties waives any claim such Third Lien
Secured Party may now or hereafter have against the Second Lien Collateral
Trustee or any other Second Lien Secured Party arising out of any actions which
the Second Lien Collateral Trustee or the Second Lien Secured Parties take or
omit to take (including actions with respect to the creation, perfection or
any part of the Second Lien Obligations from any account debtor, guarantor or
any other party) in accordance with this Agreement and the Second Lien Documents
or the valuation, use, protection or release of any security for the Second Lien
Obligations.
ARTICLE III
Section 3.01 Limitation on Enforcement Action. • Prior to the Discharge of
Priority Lien Obligations, each of the Second Lien Collateral Trustee, for
itself and on behalf of each Second Lien Secured Party, and the Third Lien
hereby agrees that, subject to Section 3.05(b) and Section 4.07, none of the
Second Lien Collateral Trustee, any other Second Lien Secured Party, the Third
Lien Collateral Trustee or any other Third Lien Secured Party shall commence any
upon, or take any other action available to it in respect of, any Collateral
under any Second Lien Security Document or Third Lien Security Document, as
applicable, applicable law or otherwise (including but not
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limited to any right of setoff), it being agreed that only the Priority Lien
Agent, acting in accordance with the applicable Priority Lien Documents, shall
have the exclusive right (and whether or not any Insolvency or Liquidation
Proceeding has been commenced), to take any such actions or exercise any such
remedies, in each case, without any consultation with or the consent of the
Lien Collateral Trustee or any other Third Lien Secured Party. In exercising
rights and remedies with respect to the Collateral, the Priority Lien Agent and
the other Priority Lien Secured Parties may enforce the provisions of the
Priority Lien Documents and exercise remedies thereunder, all in such order and
in such manner as they may determine in their sole discretion and regardless of
whether such exercise and enforcement is adverse to the interest of any Second
Lien Secured Party or Third Lien Secured Party. Such exercise and enforcement
upon foreclosure, to incur expenses in connection with any such Disposition and
Commercial Code, the Bankruptcy Code or any other Bankruptcy Law. Without
limiting the generality of the foregoing, the Priority Lien Agent will have the
exclusive right to deal with that portion of the Collateral consisting of
deposit accounts and securities accounts (collectively “Accounts”), including
exercising rights under control agreements with respect to such Accounts. Each
of the Second Lien Collateral Trustee, for itself and on behalf of the other
Second Lien Secured Parties and the Third Lien Collateral Trustee, for itself
and on behalf of the other Third Lien Secured Parties, hereby acknowledges and
agrees that no covenant, agreement or restriction contained in any Second Lien
Security Document, any other Second Lien Document, any Third Lien Security
Document or any other Third Lien Document, as applicable, shall be deemed to
restrict in any way the rights and remedies of the Priority Lien Agent or the
other Priority Lien Secured Parties with respect to the Collateral as set forth
in this Agreement. Notwithstanding the foregoing, subject to Section 3.05, each
of the Second Lien Collateral Trustee, on behalf of the Second Lien Secured
Parties, and the Third Lien Collateral Trustee, on behalf of the Third Lien
Secured Parties, may, but will have no obligation to, take all such actions (not
adverse to the Priority Liens or the rights of the Priority Lien Agent and the
Priority Lien Secured Parties) it deems necessary to perfect or continue the
perfection of the Second Liens in the Collateral or to create, preserve or
protect (but not enforce) the Second Liens in the Collateral or to perfect or
continue the perfection of the Third Liens in the Collateral or to create,
preserve or protect (but not enforce) the Third Liens in the Collateral, as
applicable. Nothing herein shall limit the right or ability of the Second Lien
Secured Parties or any Third Lien Secured Parties to (%4) purchase (by credit
bid or otherwise) all or any portion of the Collateral in connection with any
enforcement of remedies by the Priority Lien Agent to the extent that, and so
long as, the Priority Lien Secured Parties receive payment in full in cash of
all Priority Lien Obligations upon giving effect thereto or (%4) file a proof of
claim with respect to the Second Lien Obligations or the Third Lien Obligations,
as applicable.
(b) Following the Discharge of Priority Lien Obligations but prior to the
Discharge of Second Lien Obligations, the Third Lien Collateral Trustee, for
itself and on behalf of each Third Lien Secured Party, hereby agrees that,
subject to Section 3.05(b) and Section 4.07, neither the Third Lien Collateral
Trustee nor any other Third Lien Secured Party shall commence any judicial or
to, or otherwise take any action to enforce its interest in or realize upon, or
take any other action available to it in respect of, any Collateral under any
Third Lien Security Document, applicable law or otherwise (including but not
limited to any right of setoff), it being agreed that only the Second Lien
Collateral Trustee, acting in accordance with the applicable Second Lien
the Third Lien Collateral Trustee or any other Third Lien Secured Party. In
exercising rights and remedies with respect to the Collateral, the Second Lien
Collateral Trustee and the other Second Lien Secured Parties may (but shall not
be obligated
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to) enforce the provisions of the Second Lien Documents and exercise remedies
adverse to the interest of any Third Lien Secured Party. Such exercise and
Law. Without limiting the generality of the foregoing, the Second Lien
Collateral Trustee will have the exclusive right to deal with the Accounts,
including exercising rights under control agreements with respect to such
Accounts. The Third Lien Collateral Trustee, for itself and on behalf of the
other Third Lien Secured Parties, hereby acknowledges and agrees that no
covenant, agreement or restriction contained in any Third Lien Security Document
or any other Third Lien Document shall be deemed to restrict in any way the
rights and remedies of the Second Lien Collateral Trustee or the other Second
Lien Secured Parties with respect to the Collateral as set forth in this
Agreement. Notwithstanding the foregoing, subject to Section 3.05, the Third
Lien Collateral Trustee may, but will have no obligation to, on behalf of the
Third Lien Secured Parties, take all such actions (not adverse to the Second
Liens or the rights of the Second Lien Collateral Trustee and the Second Lien
Secured Parties) it deems necessary to perfect or continue the perfection of the
Third Liens in the Collateral or to create, preserve or protect (but not
enforce) the Third Liens in the Collateral.
Section 3.02 Standstill Periods; Permitted Enforcement Action. • Prior to the
Discharge of Priority Lien Obligations and notwithstanding the foregoing Section
3.01, both before and during an Insolvency or Liquidation Proceeding:
(i) after a period of 180 days has elapsed (which period will be tolled
with respect to any Collateral as a result of (%5) any injunction issued by a
court of competent jurisdiction or (%5) the automatic stay or any other stay or
other prohibition in any Insolvency or Liquidation Proceeding) since the later
of (1) the date on which the Second Lien Debt is accelerated or (2) the date on
which the Second Lien Collateral Trustee has delivered to the Priority Lien
Agent written notice of the acceleration of any Second Lien Debt (the “Second
Lien Standstill Period”), the Second Lien Collateral Trustee and the other
Second Lien Secured Parties may enforce or exercise any rights or remedies with
respect to any Collateral; provided, however, that notwithstanding the
expiration of the Second Lien Standstill Period or anything in the Second Lien
Collateral Trust Agreement or the Second Lien Documents to the contrary, in no
event may the Second Lien Collateral Trustee or any other Second Lien Secured
Priority Lien Agent on behalf of the Priority Lien Secured Parties or any other
the Second Lien Representatives by the Priority Lien Agent); provided, further,
that, at any time after the expiration of the Second Lien Standstill Period, if
have commenced and be diligently pursuing (or shall have sought or requested
relief from, or modification of, the automatic stay or any other stay or other
prohibition in any Insolvency or Liquidation Proceeding to enable the
action or proceeding, and the Second Lien Collateral Trustee shall have
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commenced the enforcement or exercise of any rights or remedies with respect to
any material portion of the Collateral or any such action or proceeding, then
for so long as the Second Lien Collateral Trustee is diligently pursuing such
rights or remedies, none of any Priority Lien Secured Party, the Priority Lien
Agent, any Third Lien Secured Party or the Third Lien Collateral Trustee shall
take any action of a similar nature with respect to such Collateral, or
vote in favor of any resolution for, any such action or proceeding; provided,
further, that, if the Second Lien Collateral Trustee or any Second Lien Secured
Party exercises rights or remedies in accordance with the terms of this Section
3.02(a)(i), then such Person shall promptly give notice thereof to the Priority
Lien Agent; and
(ii) after a period of 270 days has elapsed (which period will be tolled
court of competent jurisdiction or • the automatic stay or any other stay or
of (1) the date on which the Third Lien Debt is accelerated or (2) the date on
which the Third Lien Collateral Trustee has delivered to the Priority Lien Agent
and the Second Lien Collateral Trustee written notice of the acceleration of any
Third Lien Debt (the “Third Lien First Standstill Period”), the Third Lien
Collateral Trustee and the other Third Lien Secured Parties may enforce or
however, that notwithstanding the expiration of the Third Lien First Standstill
Period or anything in the Third Lien Collateral Trust Agreement or the Third
Lien Documents to the contrary, in no event may the Third Lien Collateral
Trustee or any other Third Lien Secured Party enforce or exercise any rights or
remedies with respect to any Collateral, or commence, join with any Person at
any such action or proceeding, if (%6) the Priority Lien Agent on behalf of the
Priority Lien Secured Parties or any other Priority Lien Secured Party or (%6)
the Second Lien Collateral Trustee on behalf of the Second Lien Secured Parties
or any other Second Lien Secured Party shall have commenced, and shall be
the Collateral or any such action or proceeding (prompt written notice thereof
to be given to the Third Lien Representatives by the Priority Lien Agent or the
Second Lien Collateral Trustee, as applicable); provided, further, that, at any
time after the expiration of the Third Lien First Standstill Period, if none of
any Priority Lien Secured Party, the Priority Lien Agent, any Second Lien
Secured Party or the Second Lien Collateral Trustee shall have commenced and be
diligently pursuing the enforcement or exercise of any rights or remedies with
proceeding, and the Third Lien Collateral Trustee shall have commenced the
the Third Lien Collateral Trustee is diligently pursuing such rights or
remedies, none of any Priority Lien Secured Party, the Priority Lien Agent, any
Second Lien Secured Party or the Second Lien Collateral Trustee shall take any
action of a similar nature with respect to such Collateral, or commence, join
any resolution for, any such action or proceeding; provided, further, that, if
the Third Lien Collateral Trustee or any Third Lien Secured Party exercises
rights or remedies in accordance with the terms of this Section 3.02(a)(ii),
then such Person shall promptly give written notice thereof to the Priority Lien
Agent and the Second Lien Collateral Trustee.
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Discharge of Second Lien Obligations and notwithstanding the foregoing Section
3.01, both before and during an Insolvency or Liquidation Proceeding, after a
period of 180 days has elapsed (which period will be tolled during any period in
which the Second Lien Collateral Trustee is not entitled, on behalf of the
Second Lien Secured Parties, to enforce or exercise any rights or remedies with
respect to any Collateral as a result of (%4) any injunction issued by a court
of competent jurisdiction or (%4) the automatic stay or any other stay or
prohibition in any Insolvency or Liquidation Proceeding) since the later of (1)
the Third Lien Collateral Trustee has delivered to the Second Lien Collateral
Trustee written notice of the acceleration of any Third Lien Debt (the “Third
Lien Second Standstill Period”), the Third Lien Collateral Trustee and the other
Third Lien Secured Parties may enforce or exercise any rights or remedies with
expiration of the Third Lien Second Standstill Period or anything in the Third
Lien Collateral Trust Agreement or the Third Lien Documents to the contrary, in
no event may the Third Lien Collateral Trustee or any other Third Lien Secured
Second Lien Collateral Trustee on behalf of the Second Lien Secured Parties or
to be given to the Third Lien Representatives by the Second Lien Collateral
Trustee); provided, further, that, at any time after the expiration of the Third
Lien Second Standstill Period, if neither the Second Lien Collateral Trustee nor
any other Second Lien Secured Party shall have commenced and be diligently
pursuing the enforcement or exercise of any rights or remedies with respect to
any material portion of the Collateral or any such action or proceeding, and the
Third Lien Collateral Trustee shall have commenced the enforcement or exercise
of any rights or remedies with respect to any material portion of the Collateral
or any such action or proceeding, then for so long as the Third Lien Collateral
Trustee is diligently pursuing such rights or remedies, neither any Second Lien
Secured Party nor the Second Lien Collateral Trustee shall take any action of a
similar nature with respect to such Collateral, or commence, join with any
resolution for, any such action or proceeding; provided, further, that, if the
Third Lien Collateral Trustee or any Third Lien Secured Party exercises rights
or remedies in accordance with the terms of this Section 3.02(b), then such
Person shall promptly give written notice thereof to the Second Lien Collateral
Trustee.
Section 3.03 Insurance. • Unless and until the Discharge of Priority Lien
rights of the Second Lien Secured Parties and the Third Lien Secured Parties
following expiration of any applicable Standstill Period), the Priority Lien
Grantors under the Priority Lien Documents, to adjust and settle claims in
respect of Collateral under any insurance policy in the event of any loss
Unless and until the Discharge of Priority Lien Obligations has occurred, and
subject to the rights of the Grantors under the Priority Lien Documents, all
a deed in lieu of condemnation) in respect of the Collateral shall be paid to
the Priority Lien Agent pursuant to the terms of the Priority Lien Documents
(including for purposes of cash collateralization of commitments, letters of
credit and Hedging Obligations). If the Second Lien Collateral Trustee, any
Second Lien Secured Party, the Third Lien Collateral Trustee or any Third Lien
Secured Party shall, at any time prior to the Discharge of Priority Lien
Obligations, receive any proceeds of any such insurance policy or any such award
or payment in contravention of the foregoing, it shall forthwith pay such
named
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covering any of the Collateral, the Second Lien Collateral Trustee, any other
Second Lien Secured Party, the Third Lien Collateral Trustee or any other Third
Lien Secured Party shall have the right to adjust or settle any claim under any
such insurance policy, then unless and until the Discharge of Priority Lien
Obligations has occurred, the Second Lien Collateral Trustee, any such Second
Lien Secured Party, the Third Lien Collateral Trustee and any such Third Lien
Secured Party shall promptly, without delay or hindrance, follow the
instructions of the Priority Lien Agent, or of the Grantors under the Priority
Lien Documents to the extent the Priority Lien Documents grant such Grantors the
right to adjust or settle such claims, with respect to such adjustment or
settlement (subject to the terms of Section 3.02, including the rights of the
Second Lien Secured Parties and the Third Lien Secured Parties following
expiration of any applicable Standstill Period).
(a) Following the Discharge of Priority Lien Obligations but prior to the
Discharge of Second Lien Obligations (subject to the terms of Section 3.02,
including the rights of the Third Lien Secured Parties following expiration of
the Third Lien Second Standstill Period), the Second Lien Collateral Trustee
shall have the sole and exclusive right (but not the obligation), subject to the
rights of the Grantors under the Second Lien Documents, to adjust and settle
claims in respect of Collateral under any insurance policy in the event of any
Unless and until the Discharge of Second Lien Obligations has occurred, and
subject to the rights of the Grantors under the Second Lien Documents, all
the Second Lien Collateral Trustee pursuant to the terms of the Second Lien
Documents and, after the Discharge of Second Lien Obligations has occurred, to
the Third Lien Collateral Trustee to the extent required under the Third Lien
Documents and then, to the extent no Third Lien Obligations are outstanding, to
the owner of the subject property, to such other Person as may be entitled
Third Lien Collateral Trustee or any Third Lien Secured Party shall, at any time
following the Discharge of Priority Lien Obligations but prior to the Discharge
of Second Lien Obligations, receive any proceeds of any such insurance policy or
any such award or payment in contravention of the foregoing, it shall forthwith
pay such proceeds over to the Second Lien Collateral Trustee. In addition, if by
virtue of being named as an additional insured or loss payee of any insurance
policy of any Grantor covering any of the Collateral, the Third Lien Collateral
Trustee or any other Third Lien Secured Party shall have the right to adjust or
settle any claim under any such insurance policy, then unless and until the
Discharge of Second Lien Obligations has occurred, the Third Lien Collateral
Trustee and any such Third Lien Secured Party shall promptly, without delay or
hindrance, follow the instructions of the Second Lien Collateral Trustee, or of
the Grantors under the Second Lien Documents to the extent the Second Lien
the Third Lien Second Standstill Period).
Agent, the Second Lien Collateral Trustee and the Third Lien Collateral Trustee
shall give the other Secured Debt Representatives prompt written notice of the
Disposition by it of, and release by it of the Lien on, any Collateral. Such
notice shall describe in reasonable detail the subject Collateral, the parties
involved in such Disposition or release, the place, time, manner and method
thereof, and the consideration, if any, received therefor; provided, however,
that the failure to give any such notice shall not in and of itself in any way
impair the effectiveness of any such Disposition or release.
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(a) No Interference. (%4) The Second Lien Collateral Trustee, for itself and
on behalf of each Second Lien Secured Party, agrees that each Second Lien
Secured Party (%5) will not take or cause to be taken any action the purpose or
effect of which is, or could be, to make any Second Lien pari passu with, or to
give such Second Lien Secured Party any preference or priority relative to, any
Priority Lien with respect to the Collateral or any part thereof, (%5) will not
Priority Lien Obligations or Priority Lien Document, or the validity,
attachment, perfection or priority of any Priority Lien, or the validity or
enforceability of the priorities, rights or duties established by the provisions
of this Agreement, (%5) will not take or cause to be taken any action the
purpose or effect of which is, or could be, to interfere, hinder or delay, in
other Disposition of the Collateral by any Priority Lien Secured Party or the
Priority Lien Agent acting on their behalf, (%5) shall have no right to
(%6) direct the Priority Lien Agent or any other Priority Lien Secured Party to
exercise any right, remedy or power with respect to any Collateral or (%6)
consent to the exercise by the Priority Lien Agent or any other Priority Lien
Secured Party of any right, remedy or power with respect to any Collateral, (%5)
will not institute any suit or assert in any suit or Insolvency or Liquidation
Proceeding any claim against the Priority Lien Agent or other Priority Lien
performance, instructions or otherwise with respect to, and neither the Priority
Lien Agent nor any other Priority Lien Secured Party shall be liable for, any
action taken or omitted to be taken by the Priority Lien Agent or other Priority
Lien Secured Party with respect to any Priority Lien Collateral, (%5) will not
marshaled upon any foreclosure or other Disposition of such Collateral, (%5)
will not attempt, directly or indirectly, whether by judicial proceedings or
otherwise, to challenge the enforceability of any provision of this Agreement,
(%5) will not object to forbearance by the Priority Lien Agent or any Priority
Lien Secured Party and (%5) will not assert, and hereby waives, to the fullest
and
(i) The Third Lien Collateral Trustee, for itself and on behalf of each Third
Lien Secured Party, agrees that each Third Lien Secured Party (%5) will not take
to make any Third Lien pari passu with, or to give such Third Lien Secured Party
any preference or priority relative to, any Priority Lien or Second Lien with
respect to the Collateral or any part thereof, (%5) will not challenge or
Obligations, Priority Lien Document, Second Lien Obligations or Second Lien
Document, or the validity, attachment, perfection or priority of any Priority
Lien or Second Lien, or the validity or enforceability of the priorities, rights
or duties established by the provisions of this Agreement, (%5) will not take or
otherwise, any sale, transfer or other Disposition of the Collateral by any
Priority Lien Secured Party or the Priority Lien Agent acting on their behalf or
by any Second Lien Secured Party or the Second Lien Collateral Trustee acting on
their behalf, (%5) shall have no right to (%6) direct the Priority Lien Agent,
any other Priority Lien Secured Party, the Second Lien Collateral Trustee or any
other Second Lien Secured Party to exercise any right, remedy or power with
respect to any Collateral or (%6) consent to the exercise by the Priority Lien
Agent, any other Priority Lien Secured Party, the Second Lien Collateral Trustee
or any other Second Lien Secured Party of any right, remedy or power with
respect to any Collateral, (%5) will not institute any suit or assert in any
suit or Insolvency or Liquidation Proceeding any claim against the Priority Lien
Agent, any other Priority Lien Secured Party, the Second Lien
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Collateral Trustee or any other Second Lien Secured Party seeking damages from
respect to, and none of the Priority Lien Agent, any other Priority Lien Secured
Party, the Second Lien Collateral Trustee or any other Second Lien Secured Party
Lien Agent, any other Priority Lien Secured Party, the Second Lien Collateral
Trustee or any other Second Lien Secured Party with respect to any Priority Lien
Collateral or Second Lien Collateral, as applicable, (%5) will not seek, and
upon any foreclosure or other Disposition of such Collateral, (%5) will not
to challenge the enforceability of any provision of this Agreement, (%5) will
not object to forbearance by the Priority Lien Agent, any Priority Lien Secured
Party, the Second Lien Collateral Trustee or any Second Lien Secured Party, and
(b) Payment Over. (%4) Each of the Second Lien Collateral Trustee, for itself
and on behalf of each other Second Lien Secured Party, and the Third Lien
Collateral Trustee, for itself and on behalf of each other Third Lien Secured
Party, hereby agrees that if any Second Lien Secured Party or Third Lien Secured
Party, as applicable, shall obtain possession of any Collateral or shall realize
any proceeds or payment in respect of any Collateral, pursuant to the exercise
of any rights or remedies with respect to the Collateral under any Second Lien
Security Document or Third Lien Security Document, as applicable, or by the
or Liquidation Proceeding, to the extent permitted hereunder, at any time prior
to the Discharge of Priority Lien Obligations secured, or intended to be
to the Priority Lien Agent as promptly as practicable. Furthermore, each of the
Second Lien Collateral Trustee and the Third Lien Collateral Trustee, as
applicable, shall, at the Grantors’ expense, promptly send written notice to the
Priority Lien Agent upon receipt of such Collateral, proceeds or payment by any
Second Lien Secured Party or Third Lien Secured Party, as applicable, and within
three (3) Business Days of such receipt, shall deliver such Collateral, proceeds
or payment to the Priority Lien Agent in the same form as received, with any
direct. The Priority Lien Agent is hereby authorized to make any such
endorsements as agent for the Second Lien Collateral Trustee, any other Second
Lien Secured Party, the Third Lien Collateral Trustee or any other Third Lien
Secured Party, as applicable. Each of the Second Lien Collateral Trustee, for
Party, agrees that if, at any time, it obtains written notice that all or part
of any payment with respect to any Priority Lien Obligations previously made
Priority Lien Agent any payment received by it and then in its possession or
under its direct control in respect of any such Priority Lien Collateral and
shall promptly turn any such Collateral then held by it over to the Priority
Lien Agent, and the provisions set forth in this Agreement will be reinstated as
if such payment had not been made, until the Discharge of Priority Lien
Obligations. All Second Liens and Third Liens will remain attached to and
enforceable against all proceeds so held or remitted, subject to the priorities
set forth in this Agreement. Anything contained herein to the contrary
notwithstanding, this Section 3.05(b) shall not apply to any proceeds of
Collateral realized in a transaction not prohibited by the Priority Lien
Documents and as to which the possession or receipt thereof by the Second Lien
Collateral Trustee, any other Second Lien Secured Party, the Third Lien
Collateral Trustee or any other Third Lien Secured Party, as applicable, is
otherwise permitted by the Priority Lien Documents.
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(i) The Third Lien Collateral Trustee, for itself and on behalf of each other
Third Lien Secured Party, hereby agrees that if any Third Lien Secured Party
remedies with respect to the Collateral under any Third Lien Security Document
time following the Discharge of Priority Lien Obligations but prior to the
Discharge of Second Lien Obligations secured, or intended to be secured, by such
the Second Lien Collateral Trustee and the other Second Lien Secured Parties and
transfer such Collateral, proceeds or payment, as the case may be, to the Second
Lien Collateral Trustee as promptly as practicable. Furthermore, the Third Lien
Collateral Trustee shall, at the Grantors’ expense, promptly send written notice
to the Second Lien Collateral Trustee upon receipt of such Collateral, proceeds
or payment by any Third Lien Secured Party, and within three (3) Business Days
after such receipt, shall deliver such Collateral, proceeds or payment to the
Second Lien Collateral Trustee in the same form as received, with any necessary
Second Lien Collateral Trustee is hereby authorized to make any such
endorsements as agent for the Third Lien Collateral Trustee or any other Third
Lien Secured Party. The Third Lien Collateral Trustee, for itself and on behalf
of each other Third Lien Secured Party, agrees that if, at any time, it obtains
written notice that all or part of any payment with respect to any Second Lien
Obligations previously made shall be rescinded for any reason whatsoever, it
will promptly pay over to the Second Lien Collateral Trustee any payment
received by it and then in its possession or under its direct control in respect
of any such Second Lien Collateral and shall promptly turn any such Collateral
then held by it over to the Second Lien Collateral Trustee, and the provisions
made, until the Discharge of Second Lien Obligations. All Third Liens will
remain attached to and enforceable against all proceeds so held or remitted,
subject to the priorities set forth in this Agreement. Anything contained herein
to the contrary notwithstanding, this Section 3.05(b) shall not apply to any
proceeds of Collateral realized in a transaction not prohibited by the Second
Lien Documents and as to which the possession or receipt thereof by the Third
Lien Collateral Trustee or any other Third Lien Secured Party is otherwise
permitted by the Second Lien Documents.
time after (%4) the commencement of an Insolvency or Liquidation Proceeding or
(%4) the acceleration of the Priority Lien Obligations, holders of the Second
Lien Debt and each of their respective designated Affiliates (the “Second Lien
Purchasers”) will have the right, at their sole option and election (but will
not be obligated), at any time upon prior written notice to the Priority Lien
Agent, to purchase from the Priority Lien Secured Parties (x) all (but not less
than all) Priority Lien Obligations (including unfunded commitments) other than
any Priority Lien Obligations constituting Excess Priority Lien Obligations and
(y) any loans provided by any of the Priority Lien Secured Parties in connection
with a DIP Financing that are outstanding on the date of such purchase. Promptly
following the receipt of such notice, the Priority Lien Agent will deliver to
the Second Lien Collateral Trustee a statement (the “Initial Purchase Option
Statement”) of the amount of Priority Lien Debt, other Priority Lien Obligations
(other than any Priority Lien Obligations constituting Excess Priority Lien
Obligations) and DIP Financing provided by any of the Priority Lien Secured
Parties, if any, then outstanding and the amount of the cash collateral
requested by the Priority Lien Agent to be delivered pursuant to Section
3.06(b)(ii) below. The Second Lien Collateral Trustee shall promptly forward
such Initial Purchase Option Statement to the holders of the Second Lien Debt.
The right to purchase provided for in this Section 3.06 will expire unless,
within 10 Business Days after the receipt by the Second Lien
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Collateral Trustee of such notice from the Priority Lien Agent, the Second Lien
Purchasers deliver to the Priority Lien Agent an irrevocable commitment of the
Second Lien Purchasers to purchase (x) all (but not less than all) of the
Priority Lien Obligations constituting Excess Priority Lien Obligations and (y)
(b) On the date specified by the Second Lien Second Lien Purchasers in such
irrevocable commitment (which shall not be less than five Business Days nor more
than 20 Business Days, after the receipt by the Priority Lien Agent of such
irrevocable commitment), the Priority Lien Secured Parties shall sell to the
Second Lien Purchasers (x) all (but not less than all) Priority Lien Obligations
(including unfunded commitments) other than any Priority Lien Obligations
constituting Excess Priority Lien Obligations and (y) any loans provided by any
of the Priority Lien Secured Parties in connection with a DIP Financing that are
sale, the Priority Lien Agent receives the following:
(i) payment in cash, as the purchase price for all Priority Lien Obligations
sold in such sale, of an amount equal to the full par value amount of (x) all
Priority Lien Obligations (other than outstanding letters of credit as referred
to in clause (ii) below) other than any Priority Lien Obligations constituting
Excess Priority Lien Obligations to the extent not purchased and (y) loans
Financing then outstanding (including in each case, principal, interest, fees,
reasonable attorneys’ fees and legal expenses, but excluding contingent
made at or prior to such time); provided that in the case of Hedging Obligations
that constitute Priority Lien Obligations the Second Lien Purchasers shall cause
the applicable agreements governing such Hedging Obligations to be assigned and
novated or, if such agreements have been terminated, such purchase price shall
include an amount equal to the sum of any unpaid amounts then due in respect of
such Hedging Obligations, calculated in accordance with the terms of such
Hedging Obligation and after giving effect to any netting arrangements;
(ii) a cash collateral deposit in such amount as the Priority Lien Agent
determines is reasonably necessary to secure the payment of any outstanding
letters of credit constituting Priority Lien Obligations that may become due and
payable after such sale (but not in any event in an amount greater than one
hundred five percent (105%) of the amount then reasonably estimated by the
Priority Lien Agent to be the aggregate outstanding amount of such letters of
credit at such time), which cash collateral shall be (%5) held by the issuer of
such letters of credit as security solely to reimburse the issuers of such
letters of credit that become due and payable after such sale and any fees and
expenses incurred in connection with such letters of credit and (%5) returned to
the Second Lien Collateral Trustee (except as may otherwise be required by
contingencies affecting such letters of credit; and
(iii) any agreements, documents or instruments which the Priority Lien Agent
may reasonably request pursuant to which the Second Lien Collateral Trustee and
the Second Lien Purchasers in such sale expressly waive any and all claims
against the Priority Lien Agent and the other Priority Lien Secured Parties
result of exercising the purchase option provided for by this Section 3.06 and
the Second Lien Purchasers assume and adopt all of the obligations of the
Lien Documents and in connection with loans provided by
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any of the Priority Lien Secured Parties in connection with a DIP Financing on
and after the date of the purchase and sale and the Second Lien Collateral
Trustee (or any other representative appointed by the holders of a majority in
aggregate principal amount of the Second Lien Indenture Notes then outstanding)
becomes a successor agent thereunder.
Purchasers for such purpose. Interest shall be calculated to but excluding the
Business Day on which such sale occurs if the amounts so paid by the Second Lien
Purchasers to the bank account designated by the Priority Lien Agent are
received in such bank account prior to 12:00 noon, New York City time, and
so paid by the Second Lien Purchasers to the bank account designated by the
Priority Lien Agent are received in such bank account later than 12:00 noon, New
York City time.
any kind by the Priority Lien Secured Parties as to the Priority Lien
Obligations, the Collateral or otherwise and without recourse to any Priority
Lien Secured Party, except that the Priority Lien Secured Parties shall
represent and warrant severally as to the Priority Lien Obligations (including
unfunded commitments) and any loans provided by any of the Priority Lien Secured
Parties in connection with a DIP Financing then owing to it: (%4) that such
applicable Priority Lien Secured Party owns such Priority Lien Obligations
(including unfunded commitments) and any loans provided by any of the Priority
Lien Secured Parties in connection with a DIP Financing; and (%4) that such
applicable Priority Lien Secured Party has the necessary corporate or other
governing authority to assign such interests.
Priority Liens upon the Collateral in accordance with the applicable provisions
of the Priority Lien Documents as in effect at the time of such sale, and the
issuers of letters of credit will remain entitled to the benefit of the Priority
Liens upon the Collateral and sharing rights in the proceeds thereof in
accordance with the provisions of the Priority Lien Documents as in effect at
the time of such sale, as fully as if the sale of the Priority Lien Debt had not
been made, but, except with respect to cash collateral held by the issuers of
Liens are transferred in such sale will have the right to foreclose upon or
otherwise enforce the Priority Liens and only the Second Lien Purchasers in the
sale will have the right to direct such Person or successor as to matters
relating to the foreclosure or other enforcement of the Priority Liens.
(f) The Second Lien Collateral Trustee’s sole responsibility in connection
with the purchase option set forth in this Section 3.06 is to forward the
Initial Purchase Option Notice to holders of Second Lien Debt.
ARTICLE IV
OTHER AGREEMENTS
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Section 4.01 Release of Liens; Automatic Release of Second Liens and Third
Liens. • Prior to the Discharge of Priority Lien Obligations, each of the Second
Lien Collateral Trustee, for itself and on behalf of each other Second Lien
Secured Party, and the Third Lien Collateral Trustee, for itself and on behalf
of each other Third Lien Secured Party, agrees that, in the event the Priority
Lien Secured Parties release their Lien on any Collateral, each of the Second
Lien and Third Lien on such Collateral shall terminate and be released
automatically and without further action if • (A) in the case of any Second Lien
Debt, such release is in connection with a sale, transfer or other disposition
of Collateral in a transaction or circumstance that is not prohibited by the
Second Lien Documents and (B) in the case of any Third Lien Debt, such release
in connection with a sale, transfer or other disposition of Collateral in a
transaction or circumstance that is not prohibited by the Third Lien Documents,
(%4) such release is effected in connection with the Priority Lien Agent’s
foreclosure upon, or other exercise of rights or remedies with respect to, such
Collateral or (%4) such release is effected in connection with a sale or other
Disposition of any Collateral (or any portion thereof) under Section 363 of the
Bankruptcy Code or any other provision of the Bankruptcy Code if the Priority
Lien Secured Parties shall have consented to such sale or Disposition of such
the Second Liens and Third Liens on such Collateral shall attach to (and shall
Obligations, subject in the case of the Second Lien Obligations to the Priority
Lien Cap, and, in the case of the Third Liens, shall remain subject and
subordinate to all Priority Liens securing Priority Lien Obligations, and (%5)
all Second Liens securing Second Lien Obligations) any proceeds of a sale,
transfer or other Disposition of Collateral not paid to the Priority Lien
Secured Parties or that remain after the Discharge of Priority Lien Obligations.
(c) Following the Discharge of Priority Lien Obligations but prior to the
itself and on behalf of each other Third Lien Secured Party, agrees that, in the
event the Second Lien Secured Parties release their Lien on any Collateral, the
Third Lien on such Collateral shall terminate and be released automatically and
without further action if (%4) such release is in connection with a sale,
transfer or other disposition of Collateral in a transaction or circumstance
that is not prohibited by the Third Lien Documents, (%4) such release is
upon, or other exercise of rights or remedies with respect to, such Collateral,
or (%4) such release is effected in connection with a sale or other Disposition
Code or any other provision of the Bankruptcy Code if the Second Lien Secured
Parties shall have consented to such sale or Disposition of such Collateral;
Liens on such Collateral shall attach to (and shall remain subject and
subordinate to all Second Liens securing Second Lien Obligations) any proceeds
of a sale, transfer or other Disposition of Collateral not paid to the Second
Lien Secured Parties or that remain after the Discharge of Second Lien
Obligations.
(d) Each of the Second Lien Collateral Trustee and the Third Lien Collateral
Trustee agrees to execute and deliver (at the sole cost and expense of the
Grantors) all such releases and other instruments as shall reasonably be
requested by the Priority Lien Agent or the Second Lien Collateral Trustee, as
applicable, to evidence and confirm any release of Collateral provided for in
this Section 4.01.
Proceedings. • The parties hereto acknowledge that this Agreement is a
Insolvency or Liquidation Proceeding by or against the Company or any Subsidiary
of the Company. All references in this Agreement to the Company or any
Subsidiary of the Company or any other Grantor will include such Person or
Persons as a debtor-in-possession and any receiver or trustee for such Person or
Persons in an Insolvency or Liquidation Proceeding. For the purposes of this
Section 4.02, unless otherwise provided herein, clauses (b) through and
including (o) shall be in full force and effect prior to the Discharge
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of Priority Lien Obligations and clauses (p) through and including (cc) shall be
in full force and effect following the Discharge of Priority Lien Obligations
but prior to the Discharge of Second Lien Obligations.
(b) If the Company or any of its Subsidiaries shall become subject to any
Lenders”) under Section 364 of the Bankruptcy Code and/or the use of cash
collateral under Section 363 of the Bankruptcy Code, (%4) the Second Lien
agrees that neither it nor any other Second Lien Secured Party and (%4) the
Third Lien Collateral Trustee, for itself and on behalf of each Third Lien
Secured Party, agrees that neither it nor any other Third Lien Secured Party,
will raise any objection, contest or oppose, and each Second Lien Secured Party
and Third Lien Secured Party will waive any claim such Person may now or
hereafter have, to any such financing or to the Liens on the Collateral securing
collateral that constitutes Collateral or to any grant of administrative expense
priority under Section 364 of the Bankruptcy Code, unless (%5) the Priority Lien
Agent or the Priority Lien Secured Parties oppose or object to such DIP
Financing or such DIP Financing Liens or such use of cash collateral or (B) (1)
the sum of (x) the aggregate principal amount of the DIP Financing, (y) the
aggregate amount of Indebtedness for borrowed money constituting principal
outstanding under the Priority Lien Documents and (z) the aggregate face amount
of any letters of credit issued and outstanding under the Priority Lien
Documents exceeds (2) the sum of (x) the amount in clause (a) of the definition
of “Priority Lien Cap” plus (y) the greater of (I) $15,000,000 and (II) 15% of
the sum of (X) the aggregate amount of indebtedness for borrowed money
constituting principal outstanding under the Priority Lien Documents plus (Y)
the aggregate face amount of any letters of credit issued and outstanding under
Priority Lien Documents on the date of the commencement of such Insolvency or
Liquidation Proceeding. To the extent such DIP Financing Liens are senior to, or
rank pari passu with, the Priority Liens, (1) the Second Lien Collateral Trustee
will, for itself and on behalf of the other Second Lien Secured Parties,
subordinate the Second Liens on the Collateral to the Priority Liens and to such
DIP Financing Liens, so long as the Second Lien Collateral Trustee, on behalf of
the Second Lien Secured Parties, retains Liens on all the Collateral, including
proceeds thereof arising after the commencement of any Insolvency or Liquidation
Proceeding, with the same priority relative to the Priority Liens and the Third
Liens as existed prior to the commencement of the case under the Bankruptcy Code
and (2) the Third Lien Collateral Trustee will, for itself and on behalf of the
other Third Lien Secured Parties, subordinate the Third Liens on the Collateral
to the Priority Liens, the Second Liens and to such DIP Financing Liens, so long
as the Third Lien Collateral Trustee, on behalf of the Third Lien Secured
Parties, retains Liens on all the Collateral, including proceeds thereof arising
after the commencement of any Insolvency or Liquidation Proceeding, with the
same priority relative to the Priority Liens and the Second Liens as existed
prior to the commencement of the case under the Bankruptcy Code.
(c) Prior to the Discharge of Priority Lien Obligations, without the consent
of the Priority Lien Agent, in its sole discretion, each of the Second Lien
Lien Secured Party, agrees not to propose, support or enter into any DIP
Financing.
(d) Each of the Second Lien Collateral Trustee, for itself and on behalf of
each Second Lien Secured Party and the Third Lien Collateral Trustee, for itself
and on behalf of each Third Lien Secured Party, agrees that it will not object
of the Bankruptcy Code if the Priority Lien Secured Parties shall have consented
to such sale or Disposition, such motion to sell or Dispose or such bidding
procedure for such sale or Disposition
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of such Collateral and all Priority Liens, Second Liens and Third Liens will
attach to the proceeds of the sale in the same respective priorities as set
(e) Each of the Second Lien Collateral Trustee, for itself and on behalf of
each other Second Lien Secured Party and the Third Lien Collateral Trustee, for
itself and on behalf of each other Third Lien Secured Party, waives any claim
that may be had against the Priority Lien Agent or any other Priority Lien
Secured Party arising out of any DIP Financing Liens (that is granted in a
manner that is consistent with this Agreement), request for adequate protection
or administrative expense priority under Section 364 of the Bankruptcy Code.
(f) The Second Lien Collateral Trustee, for itself and on behalf of each
other Second Lien Secured Party, agrees that neither the Second Lien Collateral
Trustee nor any other Second Lien Secured Party and the Third Lien Collateral
Trustee, for itself and on behalf of each other Third Lien Secured Party, agrees
that neither the Third Lien Collateral Trustee nor any other Third Lien Secured
Party, will file or prosecute in any Insolvency or Liquidation Proceeding any
motion for adequate protection (or any comparable request for relief) based upon
their interest in the Collateral, nor object to, oppose or contest (or join with
or support any third party objecting to, opposing or contesting) (%4) any
request by the Priority Lien Agent or any other Priority Lien Secured Party for
adequate protection or (%4) any objection by the Priority Lien Agent or any
other Priority Lien Secured Party to any motion, relief, action or proceeding
based on the Priority Lien Agent or Priority Lien Secured Parties claiming a
lack of adequate protection, except that:
(A) the Second Lien Secured Parties may:
(1) freely seek and obtain relief granting adequate protection in the form of
a replacement lien co-extensive in all respects with, but subordinated (as set
Liens and the Third Liens as existed prior to the commencement of the Insolvency
or Liquidation Proceeding, all Liens granted in the Insolvency or Liquidation
Proceeding to, or for the benefit of, the Priority Lien Secured Parties; and
(2) freely seek and obtain any relief upon a motion for adequate protection
any time after the Discharge of Priority Lien Obligations; and
(B) the Third Lien Secured Parties may:
Liens and the Second Liens as existed prior to the commencement of the
Insolvency or Liquidation Proceeding, all Liens granted in the Insolvency or
Liquidation Proceeding to, or for the benefit of, the Priority Lien Secured
Parties and the Second Lien Secured Parties; and
any time after the Discharge of Priority Lien Obligations and the Discharge of
Second Lien Obligations.
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(g) Each of the Second Lien Collateral Trustee, for itself and on behalf of
each of the other of the Second Lien Secured Parties and the Third Lien
Collateral Trustee, for itself and on behalf of each of the other Third Lien
Secured Parties, waives any claim it or any such other Second Lien Secured Party
or Third Lien Secured Party, as applicable, may now or hereafter have against
the Priority Lien Agent or any other Priority Lien Secured Party (or their
representatives) arising out of any election by the Priority Lien Agent or any
Priority Lien Secured Parties, in any proceeding instituted under the Bankruptcy
(h) The Second Lien Collateral Trustee, for itself and on behalf of each
other Second Lien Secured Party, agrees that in any Insolvency or Liquidation
Proceeding, neither the Second Lien Collateral Trustee nor any other Second Lien
Secured Party and the Third Lien Collateral Trustee, for itself and on behalf of
each other Third Lien Secured Party, agrees that in any Insolvency or
Liquidation Proceeding, neither the Third Lien Collateral Trustee nor any other
Third Lien Secured Party, shall support or vote to accept any plan of
reorganization or disclosure statement of the Company or any other Grantor
unless (23) such plan is accepted by the Class of Priority Lien Secured Parties
for the payment in full in cash of all Priority Lien Obligations (including all
post-petition interest approved by the bankruptcy court, fees and expenses and
cash collateralization of all letters of credit) on the effective date of such
plan of reorganization, or (23) such plan provides on account of the Priority
Lien Secured Parties for the retention by the Priority Lien Agent, for the
benefit of the Priority Lien Secured Parties, of the Liens on the Collateral
securing the Priority Lien Obligations, and on all proceeds thereof whenever
received, and such plan also provides that any Liens retained by, or granted to,
the Second Lien Collateral Trustee and the Third Lien Collateral Trustee are
only on property securing the Priority Lien Obligations and shall have the same
respectively, as provided in this Agreement with respect to the Collateral.
Except as provided herein, each of the Second Lien Secured Parties and the Third
Lien Secured Parties shall remain entitled to vote their claims in any such
(i) The Second Lien Collateral Trustee, for itself and on behalf of each
Party, shall seek relief, pursuant to Section 362(d) of the Bankruptcy Code or
from any other stay or other prohibition in any Insolvency or Liquidation
Priority Lien Agent.
(j) The Second Lien Collateral Trustee, for itself and on behalf of each
Trustee nor any other Second Lien Secured Party, and the Third Lien Collateral
Party, shall oppose or seek to challenge any claim by the Priority Lien Agent or
any other Priority Lien Secured Party for allowance or payment in any Insolvency
or Liquidation Proceeding of Priority Lien Obligations consisting of
post-petition interest, fees or expenses or cash collateralization of all
letters of credit to the extent of the value of the Priority Liens (it being
understood that such value will be determined without regard to the existence of
the Second Liens or the Third Liens on the Collateral). Neither Priority Lien
Agent nor any other Priority Lien Secured Party shall oppose or seek to
challenge any claim by the Second Lien Collateral Trustee, any other Second Lien
Secured Party, the Third Lien Collateral Trustee or any other Third Lien Secured
Party for allowance or payment in any Insolvency or Liquidation Proceeding of
Second Lien Obligations or Third Lien Obligations, as applicable, consisting of
Second Liens or the Third Liens, as applicable, on the Collateral; provided
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that if the Priority Lien Agent or any other Priority Lien Secured Party shall
have made any such claim, such claim (%4) shall have been approved or (%4) will
be approved contemporaneously with the approval of any such claim by the Second
Lien Collateral Trustee or any Second Lien Secured Party or the Third Lien
Collateral Trustee or any Third Lien Secured Party, as applicable.
(k) Without the express written consent of the Priority Lien Agent, none of
the Second Lien Collateral Trustee, any other Second Lien Secured Party, the
Third Lien Collateral Trustee or any other Third Lien Secured Party shall (or
shall join with or support any third party in opposing, objecting to or
contesting, as the case may be), in any Insolvency or Liquidation Proceeding
involving any Grantor, (%4) oppose, object to or contest the determination of
the extent of any Liens held by any of Priority Lien Secured Party or the value
of any claims of any such holder under Section 506(a) of the Bankruptcy Code or
(%4) oppose, object to or contest the payment to the Priority Lien Secured Party
of interest, fees or expenses under Section 506(b) of the Bankruptcy Code
subject to the Priority Lien Cap.
Insolvency or Liquidation Proceeding a determination is made that any Priority
Lien encumbering any Collateral is not enforceable for any reason, then each of
the Second Lien Collateral Trustee for itself and on behalf of each other Second
Lien Secured Party and the Third Lien Collateral Trustee, for itself and on
behalf of each other Third Lien Secured Party, agrees that, any distribution or
recovery they may receive in respect of any Collateral shall be segregated and
held in trust and forthwith paid over to the Priority Lien Agent for the benefit
of the Priority Lien Secured Parties in the same form as received without
recourse, representation or warranty (other than a representation of the Second
Lien Collateral Trustee or the Third Lien Collateral Trustee, as applicable,
direct. Each of the Second Lien Collateral Trustee, for itself and on behalf of
itself and on behalf of each other Third Lien Secured Party, hereby appoints the
Priority Lien Agent, and any officer or agent of the Priority Lien Agent, with
full power of substitution, the attorney-in-fact of each Second Lien Secured
Party and Third Lien Secured Party for the limited purpose of carrying out the
provisions of this Section 4.02(l) and taking any action and executing any
instrument that the Priority Lien Agent may deem necessary or advisable to
accomplish the purposes of this Section 4.02(l), which appointment is
(m) Each of the Second Lien Collateral Trustee, for itself and on behalf of
itself and on behalf of each other Third Lien Secured Party, hereby agrees that
the Priority Lien Agent shall have the exclusive right to credit bid the
Priority Lien Obligations and further that none of the Second Lien Collateral
Trustee, any other Second Lien Secured Party, the Third Lien Collateral Trustee
or any other Third Lien Secured Party shall (or shall join with or support any
object to or contest such credit bid by the Priority Lien Agent.
(n) Without the consent of the Priority Lien Agent in its sole discretion,
each of the Second Lien Collateral Trustee, for itself and on behalf of each
itself and on behalf of each other Third Lien Secured Party, agrees it will not
file or join an involuntary bankruptcy petition or claim against the Company or
any of its Subsidiaries or seek the appointment of an examiner or a trustee for
(o) Each of the Second Lien Collateral Trustee, for itself and on behalf of
itself and on behalf of each other Third
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Lien Secured Party, waives any right to assert or enforce any claim under
Secured Party or any of the Collateral, except as expressly permitted by this
Agreement.
(p) If the Company or any of its subsidiaries shall become subject to any
of DIP Financing to be provided by one or more DIP Lenders under Section 364 of
the Bankruptcy Code or the use of cash collateral under Section 363 of the
Bankruptcy Code, the Third Lien Collateral Trustee, for itself and on behalf of
each Third Lien Secured Party, agrees that neither it nor any other Third Lien
Secured Party will raise any objection, contest or oppose, and each Third Lien
Secured Party will waive any claim such Person may now or hereafter have, to any
such financing or to the DIP Financing Liens on the Collateral securing the
same, or to any use, sale or lease of cash collateral that constitutes
Collateral or to any grant of administrative expense priority under Section 364
of the Bankruptcy Code, unless (%4) the Second Lien Collateral Trustee or the
Second Lien Secured Parties oppose or object to such DIP Financing or such DIP
Financing Liens or such use of cash collateral or (%4) the maximum principal
amount of Debt permitted under such DIP Financing exceeds the sum of (%5) the
amount of Second Lien Obligations refinanced with the proceeds thereof and (%5)
$15,000,000. To the extent such DIP Financing Liens are senior to, or rank pari
passu with, the Second Liens, the Third Lien Collateral Trustee will, for itself
and on behalf of the other Third Lien Secured Parties, subordinate the Third
Liens on the Collateral to the Second Liens and to such DIP Financing Liens, so
long as the Third Lien Collateral Trustee, on behalf of the Third Lien Secured
(q) Without the consent of the Second Lien Collateral Trustee in its sole
discretion, the Third Lien Collateral Trustee, for itself and on behalf of each
Third Lien Secured Party, agrees not to propose, support or enter into any DIP
Financing.
(r) The Third Lien Collateral Trustee, for itself and on behalf of each Third
Lien Secured Party, agrees that it will not object to, oppose or contest (or
join with or support any third party objecting to, opposing or contesting) a
sale or other Disposition, a motion to sell or Dispose or the bidding procedure
for such sale or Disposition of any Collateral (or any portion thereof) under
if the Second Lien Collateral Trustee and the requisite holders of Second Lien
Obligations shall have consented to such sale or Disposition, such motion to
sell or Dispose or such bidding procedure for such sale or Disposition of such
Collateral and all Second Liens and Third Liens will attach to the proceeds of
the sale in the same respective priorities as set forth in this Agreement.
(s) The Third Lien Collateral Trustee, for itself and on behalf of each other
Third Lien Secured Party, waives any claim that may be had against the Second
Lien Collateral Trustee or any other Second Lien Secured Party arising out of
any DIP Financing Liens (that is granted in a manner that is consistent with
this Agreement), request for adequate protection or administrative expense
priority under Section 364 of the Bankruptcy Code.
(t) The Third Lien Collateral Trustee, for itself and on behalf of each other
Third Lien Secured Party, agrees that neither the Third Lien Collateral Trustee
nor any other Third Lien Secured Party will file or prosecute in any Insolvency
or Liquidation Proceeding any motion for adequate protection (or any comparable
request for relief) based upon their interest in the Collateral, nor object to,
opposing or contesting) (%4) any request by the Second
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5279325v2
Lien Collateral Trustee or any other Second Lien Secured Party for adequate
protection or (%4) any objection by the Second Lien Collateral Trustee or any
other Second Lien Secured Party to any motion, relief, action or proceeding
based on the Second Lien Collateral Trustee or Second Lien Secured Parties
claiming a lack of adequate protection, except that the Third Lien Secured
Parties may:
forth in Section 2.01) to, and with the same relative priority to the Second
for the benefit of, the Second Lien Secured Parties; and
any time after the Discharge of Second Lien Obligations.
(u) The Third Lien Collateral Trustee, for itself and on behalf of each of
the other of the Third Lien Secured Parties, waives any claim the Third Lien
Collateral Trustee or any such other Third Lien Secured Party may now or
hereafter have against the Second Lien Collateral Trustee or any other Second
Second Lien Collateral Trustee or any Second Lien Secured Parties, in any
Section 1111(b) of the Bankruptcy Code.
(v) The Third Lien Collateral Trustee, for itself and on behalf of each other
Third Lien Secured Party, agrees that in any Insolvency or Liquidation
Proceeding, neither the Third Lien Collateral Trustee nor any other Third Lien
Secured Party shall support or vote for any plan of reorganization or disclosure
statement of the Company or any other Grantor unless (%4) such plan is accepted
by the Class of Second Lien Secured Parties in accordance with Section 1126(c)
of the Bankruptcy Code or otherwise provides for the payment in full in cash of
all Second Lien Obligations (including all post-petition interest, fees and
expenses) on the effective date of such plan of reorganization, or (%4) such
plan provides on account of the Second Lien Secured Parties for the retention by
the Second Lien Collateral Trustee, for the benefit of the Second Lien Secured
Parties, of the Liens on the Collateral securing the Second Lien Obligations,
and on all proceeds thereof whenever received, and such plan also provides that
any Liens retained by, or granted to, the Third Lien Collateral Trustee are only
on property securing the Second Lien Obligations and shall have the same
Except as provided herein, the Third Lien Secured Parties shall remain entitled
(w) The Third Lien Collateral Trustee, for itself and on behalf of each other
Third Lien Secured Party, hereby agrees that until the Discharge of Second Lien
Obligations has occurred, neither Third Lien Collateral Trustee nor any Third
Lien Secured Party shall seek relief, pursuant to Section 362(d) of the
Bankruptcy Code or from any other stay or other prohibition in any Insolvency or
consent of the Second Lien Collateral Trustee.
(x) The Third Lien Collateral Trustee, for itself and on behalf of each other
nor any other Third Lien Secured Party shall oppose or seek to challenge any
claim by the Second Lien Collateral Trustee or any other Second Lien Secured
Second Lien
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5279325v2
of the value of the Second Liens (it being understood that such value will be
determined without regard to the existence of the Third Liens on the
Collateral). Neither Second Lien Collateral Trustee nor any other Second Lien
Secured Party shall oppose or seek to challenge any claim by the Third Lien
Collateral Trustee or any other Third Lien Secured Party for allowance or
payment in any Insolvency or Liquidation Proceeding of Third Lien Obligations
value of the Third Liens on the Collateral; provided that if the Second Lien
Collateral Trustee or any other Second Lien Secured Party shall have made any
such claim, such claim (%4) shall have been approved or (%4) will be approved
contemporaneously with the approval of any such claim by the Third Lien
Collateral Trustee or any Third Lien Secured Party.
(y) Without the express written consent of the Second Lien Collateral
Trustee, neither the Third Lien Collateral Trustee nor any other Third Lien
Liquidation Proceeding involving any Grantor, (%4) oppose, object to or contest
the determination of the extent of any Liens held by any Second Lien Secured
Party or the value of any claims of any such holder under Section 506(a) of the
Bankruptcy Code or (%4) oppose, object to or contest the payment to the Second
Lien Secured Party of interest, fees or expenses under Section 506(b) of the
Bankruptcy Code.
(z) Notwithstanding anything to the contrary contained herein, if in any
Lien Collateral Trustee for itself and on behalf of each other Third Lien
Secured Party, agrees that, any distribution or recovery they may receive in
respect of any Collateral shall be segregated and held in trust and forthwith
paid over to the Second Lien Collateral Trustee for the benefit of the Second
Lien Secured Parties in the same form as received without recourse,
representation or warranty (other than a representation of the Third Lien
Collateral Trustee that it has not otherwise sold, assigned, transferred or
otherwise direct. Following the Discharge of Priority Lien Obligations but prior
to the Discharge of Second Lien Obligations, the Third Lien Collateral Trustee,
the Second Lien Collateral Trustee, and any officer or agent of the Second Lien
Collateral Trustee, with full power of substitution, the attorney-in-fact of
each Third Lien Secured Party for the limited purpose of carrying out the
provisions of this Section 4.02(z) and taking any action and executing any
instrument that the Second Lien Collateral Trustee may deem necessary or
advisable to accomplish the purposes of this Section 4.02(z), which appointment
(aa) The Third Lien Collateral Trustee, for itself and on behalf of each
other Third Lien Secured Party, hereby agrees that the Second Lien Collateral
Trustee shall have the exclusive right (but not the obligation) after the
Discharge of Priority Lien Obligations to credit bid the Second Lien Obligations
and further that neither the Third Lien Collateral Trustee nor any other Third
Lien Secured Party shall (or shall join with or support any third party in
opposing, objecting to or contesting, as the case may be) oppose, object to or
contest such credit bid by the Second Lien Collateral Trustee.
(bb) Without the consent of the Second Lien Collateral Trustee in its sole
other Third Lien Secured Party, agrees it will not file or join an involuntary
bankruptcy petition or claim against the Company or any of its Subsidiaries or
seek the appointment of an examiner or a trustee for the Company or any of its
subsidiaries.
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(cc) The Third Lien Collateral Trustee, for itself and on behalf of each
other Third Lien Secured Party, waives any right to assert or enforce any claim
under Section 506(c) or 552 of the Bankruptcy Code as against any Second Lien
Agreement.
amounts. Each of the Second Lien Collateral Trustee, for itself and on behalf of
each other Second Lien Secured Party, and the Third Lien Collateral Trustee, for
itself and on behalf of each other Third Lien Secured Party, agrees that if, at
any time, a Second Lien Secured Party or a Third Lien Secured Party, as
applicable, receives notice of any Recovery, the Second Lien Collateral Trustee,
any other Second Lien Secured Party, the Third Lien Collateral Trustee or any
other Third Lien Secured Party, as applicable, shall promptly pay over to the
under its control in respect of any Collateral subject to any Priority Lien
securing such Priority Lien Obligations and shall promptly turn any Collateral
subject to any such Priority Lien then held by it over to the Priority Lien
Agent, and the provisions set forth in this Agreement shall be reinstated as if
such payment had not been made. If this Agreement shall have been terminated
prior to any such Recovery, this Agreement shall be reinstated in full force and
of reinstatement. Any amounts received by the Second Lien Collateral Trustee,
other Third Lien Secured Party and then in its possession or under its control
on account of the Second Lien Obligations or Third Lien Obligations, as
applicable, after the termination of this Agreement shall, in the event of a
for and paid over to the Priority Lien Agent for the benefit of the Priority
Lien Secured Parties for application to the reinstated Priority Lien Obligations
until the discharge thereof. This Section 4.03 shall survive termination of this
Agreement.
Section 4.04 Refinancings; Additional Second Lien Debt; Initial Third Lien
Indebtedness; Additional Third Lien Debt.
(c) The Priority Lien Obligations, the Second Lien Obligations and the Third
Lien Obligations may be Replaced, by any Priority Substitute Credit Facility,
Second Lien Substitute Facility or Third Lien Substitute Facility, as the case
all without affecting the Lien priorities provided for herein or the other
provisions hereof; provided, that (%4) the Priority Lien Agent, the Second Lien
Collateral Trustee and the Third Lien Collateral Trustee shall receive on or
prior to incurrence of a Priority Substitute Credit Facility, Second Lien
Substitute Facility or Third Lien Substitute Facility (%5) an Officers’
Certificate from the Company stating that (%6) the incurrence thereof is
permitted, by each applicable Secured Debt Document, to be incurred and (%6) the
requirements of Section 4.06 have been satisfied, and (%5) a Priority
Confirmation Joinder from the holders or lenders of any Debt that Replaces the
Priority Lien Obligations, the Second Lien Obligations or the Third Lien
behalf), (%4) the aggregate outstanding principal amount of the Priority Lien
Obligations, after giving effect to such Priority Substitute Credit Facility,
shall not exceed the Priority Lien Cap, and (%4) on or before the date of such
incurrence, such Priority Substitute Credit Facility, Second Lien Substitute
Facility or Third Lien Substitute Facility is designated by the Company, in an
Officers’ Certificate delivered to the Priority Lien Agent, the Second Lien
Collateral Trustee and the Third Lien Collateral Trustee, as “Priority Lien
Debt”, “Second Lien Debt” or “Third Lien Debt”, as applicable, for the purposes
of the Secured Debt Documents and this Agreement;
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Priority Lien Debt, Second Lien Debt or Third Lien Debt.
(d) The Company will be permitted to designate as an additional holder of
Second Lien Obligations or Third Lien Obligations hereunder each Person who is,
or who becomes, the registered holder of Second Lien Debt or Third Lien Debt, as
applicable, incurred by the Company after the date of this Agreement in
may effect such designation by delivering to the Priority Lien Agent, the Second
Lien Collateral Trustee and the Third Lien Collateral Trustee, each of the
following:
(ii) an Officers’ Certificate stating that the Company intends to incur
(%5) Additional Second Lien Obligations which will be Second Lien Debt, (%5)
Initial Third Lien Obligations which will be Third Lien Debt, or (%5) Additional
Third Lien Obligations which will be Third Lien Debt, which in each case, will
be permitted, by each applicable Secured Debt Document, to be incurred and
secured by a Second Lien or Third Lien, as applicable, equally and ratably with
all previously existing and future Second Lien Debt or Third Lien Debt, as
applicable;
(iii) an authorized agent, trustee or other representative on behalf of the
holders or lenders of any Additional Second Lien Obligations, Initial Third Lien
Obligations or Additional Third Lien Obligations, as applicable, must be
designated as an additional holder of Secured Obligations hereunder and must,
prior to such designation, sign and deliver on behalf of the holders or lenders
of such Additional Second Lien Obligations, Initial Third Lien Obligations or
Additional Third Lien Obligations, as applicable, a Priority Confirmation
Joinder, and, to the extent necessary or appropriate to facilitate such
transaction, a new intercreditor agreement substantially similar to this
Agreement, as in effect on the date hereof; and
(iv) evidence that the Company has duly authorized, executed (if applicable)
and recorded (or caused to be recorded) in each appropriate governmental office
all relevant filings and recordations deemed necessary by the Company and the
holder of such Additional Second Lien Obligations, Initial Third Lien
Obligations or Additional Third Lien Obligations, as applicable, or its Secured
Debt Representative, to ensure that the Additional Second Lien Obligations,
Initial Third Lien Obligations or Additional Third Lien Obligations are secured
by the Collateral in accordance with the Second Lien Security Documents or the
Third Lien Security Documents, as applicable (provided that such filings and
recordings may be authorized, executed and recorded following any incurrence on
a post-closing basis if permitted by the Second Lien Representative or Third
Lien Representative for such Additional Second Lien Obligations, Initial Third
Lien Obligations or Additional Third Lien Obligations, as applicable).
For the avoidance of doubt, the deliveries set forth in clauses (i) through
(iii) of Section 4.04(b) shall not be required (and shall be deemed satisfied)
in connection with an issuance of Additional Notes constituting Second Lien
Indenture Notes.
(e) The Company will be permitted to enter into an Initial Third Lien Debt
Facility to the extent such Initial Third Lien Debt Facility is permitted, by
the Priority Credit Agreement, the other Priority Lien Documents, the Second
Lien Indenture and the other Second Lien Documents. Any Third Lien Debt incurred
pursuant to such Initial Third Lien Debt Facility may be secured by a Third Lien
under and pursuant to the Initial Third Lien Security Documents provided the
Third Lien Collateral Trustee, acting for itself and on behalf of the Initial
Third Lien Secured Parties, becomes a party to this Agreement by satisfying the
conditions set forth in clauses (i) and (ii) of the immediately succeeding
paragraph.
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In order for the Third Lien Collateral Trustee to become a party to this
Agreement,
(i) the Priority Lien Agent, the Second Lien Collateral Trustee and the Third
Lien Collateral Trustee shall have executed and delivered a Priority
Confirmation Joinder pursuant to which (%5) such Third Lien Collateral Trustee
becomes a Secured Debt Representative hereunder and (%5) the Third Lien Debt and
the related Initial Third Lien Secured Parties become subject hereto and bound
hereby;
(ii) The Company shall have delivered to the Priority Lien Agent and the
Second Lien Collateral Trustee (%5) true and complete copies of each Initial
Third Lien Document and (%5) an Officers’ Certificate certifying such copies as
being true and correct and identifying the Obligations to be designated as
Initial Third Lien Obligations and the initial aggregate principal amount
thereof; and
(iii) without limiting Section 4.06, the Initial Third Lien Documents
relating to such Third Lien Debt shall provide, in a manner satisfactory to the
Priority Lien Agent, that each Initial Third Lien Secured Party shall be subject
such Third Lien Debt.
allow the Company or any other Grantor to incur additional Debt unless otherwise
permitted by the terms of each applicable Secured Debt Document.
Each of the then-exiting Priority Lien Agent, the Second Lien Collateral Trustee
and the Third Lien Collateral Trustee shall be authorized to execute and deliver
such documents and agreements (including amendments or supplements to this
Agreement) as such holders, lenders, agent, trustee or other representative may
reasonably request to give effect to any such Replacement or any incurrence of
Additional Notes, Additional Second Lien Obligations, Initial Third Lien
Obligations or Additional Third Lien Obligations, it being understood that the
Priority Lien Agent, the Second Lien Collateral Trustee and the Third Lien
Collateral Trustee or (if permitted by the terms of the applicable Secured Debt
Documents) the Grantors, without the consent of any other Secured Party or (in
the case of the Grantors) one or more Secured Debt Representatives, may amend,
Replacement or incurrence all at the expense of the Grantors. Upon the
consummation of such Replacement or incurrence and the execution and delivery of
the documents and agreements contemplated in the preceding sentence, the holders
or lenders of such Debt and any authorized agent, trustee or other
representative thereof shall be entitled to the benefits of this Agreement.
Section 4.05 Amendments to Second Lien Documents and Third Lien Documents.
Prior to the Discharge of Priority Lien Obligations, without the prior written
consent of the Priority Lien Agent (unless such consent is not required by the
terms of any Priority Substitute Credit Facility then in effect), no Second Lien
Document or Third Lien Document may be amended, supplemented, restated or
terms of any new Second Lien Document or Third Lien Document, as applicable,
would (a) modify a covenant or event of default that directly restricts one or
more Grantors from making payments on the Priority Lien Obligations that would
otherwise be permitted under this Agreement and the Second Lien Documents or
Third Lien Documents as in effect on the date hereof, (b) shorten the final
maturity or weighted average life to maturity of the Second Lien Obligations or
Third Lien Obligations, (c) add any additional Property as collateral for the
Second Lien Obligations or Third Lien Obligations unless such Property is added
as collateral for the Priority Lien Obligations, (d) provide for any Person to
issue a
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guarantee or be required to issue a guarantee unless such Person guarantees the
Priority Lien Obligations, (e) add or provide for any increase in, or shorten
the period for payment of, any mandatory prepayment or redemption provisions or
shorten the period for reinvestment of any net cash proceeds (other than change
of control or asset sale tender offer provisions substantially similar to those
applicable under the Second Lien Documents, as in effect on the date hereof, or
otherwise customary in the market at the time of such amendment, exchange or
refinancing), (f) increase the interest rate or yield, including by increasing
the “applicable margin” or similar component of the interest rate, by imposing
fees or premiums, or by modifying the method of computing interest, or modifying
or implementing any commitment, consent, facility, utilization, make-whole or
similar fee so that the aggregate yield is in excess of the total yield on the
Second Lien Obligations or Third Lien Obligations as in effect on the issue date
thereof (excluding increases resulting from the accrual of interest at the
default rate), (g) amend or otherwise modify any “Default” or “Event of Default”
or covenants thereunder in a manner, taken as a whole, that is materially
adverse to any Grantors unless such modification would also apply to the
Priority Lien Documents, (h) adversely affect the lien priority rights of the
Priority Lien Secured Parties or (i) contravene the provisions of this Agreement
or the Priority Lien Documents then in effect.
Section 4.06 Legends. Each of:
(a) the Second Lien Collateral Trustee acknowledges with respect to (%4) the
Second Lien Indenture and the Indenture Second Lien Security Documents, and (%4)
the Additional Second Lien Debt Facility and the Additional Second Lien Security
Documents, if any, and
(b) the Third Lien Collateral Trustee acknowledges with respect to (%4) the
Initial Third Lien Debt Facility and the Initial Third Lien Security Documents,
if any, and (%4) the Additional Third Lien Debt Facility and the Additional
Third Lien Security Documents, if any, that
the Grantors shall cause the Second Lien Indenture, the Initial Third Lien Debt
Facility (if any), the Additional Second Lien Debt Facility (if any), the
Additional Third Lien Debt Facility (if any), the Second Lien Documents (other
than control agreements to which both the Priority Lien Agent and the Second
Lien Collateral Trustee are parties), the Third Lien Documents (other than
control agreements to which the Priority Lien Agent or the Second Lien
Collateral Trustee, as applicable, and the Third Lien Collateral Trustee are
which both the Priority Lien Agent and the Second Lien Collateral Trustee are
parties or, in the case of Third Lien Security Documents, other than control
agreements to which the Priority Lien Agent or the Second Lien Collateral
Trustee, as applicable, and the Third Lien Collateral Trustee are parties)
granting any security interest in the Collateral to contain the appropriate
Section 4.07 Second Lien Secured Parties and Third Lien Secured Parties
Rights as Unsecured Creditors; Judgment Lien Creditor. Both before and during an
Insolvency or Liquidation Proceeding, any of the Second Lien Secured Parties and
the Third Lien Secured Parties may take any actions and exercise any and all
however, that the Second Lien Secured Parties and the Third Lien Secured Parties
may not take any of the actions prohibited by Section 3.05(a) or Section 4.02 or
any other provisions in this Agreement; provided, further, that in the event
that any of the Second Lien Secured Parties or Third Lien Secured Parties
becomes a judgment lien creditor in respect of any Collateral as a result of its
enforcement of its rights as an unsecured creditor with respect to the Second
Lien Obligations or the Third Lien Obligations, as applicable, such judgment
in relation to the Priority Lien Obligations, the Second Lien Obligations and
the Third Lien Obligations, as applicable) as the Second Liens and Third Liens,
as applicable, are subject to this Agreement.
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Section 4.08 Postponement of Subrogation. • Each of the Second Lien
Collateral Trustee, for itself and on behalf of each other Second Lien Secured
other Third Lien Secured Party, hereby agrees that no payment or distribution to
any Priority Lien Secured Party pursuant to the provisions of this Agreement
shall entitle any Second Lien Secured Party or Third Lien Secured Party to
exercise any rights of subrogation in respect thereof until, in the case of the
Second Lien Secured Parties, the Discharge of Priority Lien Obligations shall
have occurred, and in the case of the Third Lien Secured Parties, the Discharge
of Priority Lien Obligations and the Discharge of Second Lien Obligations shall
each have occurred. Following the Discharge of Priority Lien Obligations, but
subject to the reinstatement as provided in Section 4.03, each Priority Lien
Second Lien Secured Party may reasonably request to evidence the transfer by
subrogation to any such Person of an interest in the Priority Lien Obligations
resulting from payments or distributions to such Priority Lien Secured Party by
fees and disbursements) incurred in connection therewith by such Priority Lien
Secured Party are paid by such Person upon request for payment thereof.
itself and on behalf of each other Third Lien Secured Party, agrees that no
payment or distribution to any Second Lien Secured Party pursuant to the
provisions of this Agreement shall entitle any Third Lien Secured Party to
exercise any rights of subrogation in respect thereof. Following the Discharge
of Second Lien Obligations, but subject to the reinstatement as provided in
Section 4.03, each Second Lien Secured Party will execute such documents,
agreements, and instruments as any Third Lien Secured Party may reasonably
interest in the Second Lien Obligations resulting from payments or distributions
to such Second Lien Secured Party by such Person, so long as all costs and
connection therewith by such Second Lien Secured Party are paid by such Person
Parties, the Second Lien Collateral Trustee, for itself and on behalf of the
other Second Lien Secured Parties, and the Third Lien Collateral Trustee, for
itself and on behalf of the other Third Lien Secured Parties, hereby
acknowledges that this Agreement is a material inducement to enter into a
business relationship, that each has relied on this Agreement to enter into the
Priority Lien Documents, the Second Lien Indenture and the Initial Third Lien
Debt Facility, as applicable, and all documentation related thereto, and that
Section 4.10 Permitted Prepayments of Second Lien Obligations and Third Lien
Obligations. Until the Discharge of Priority Lien Obligations, unless otherwise
permitted by the Priority Lien Agent or otherwise permitted by the terms of any
Priority Substitute Credit Facility, no Second Lien Secured Party or Third Lien
Secured Party may accept or retain any optional prepayment (howsoever described)
of principal of the Second Lien Obligations or Third Lien Obligations, as
applicable; provided, that notwithstanding the foregoing, the Second Lien
Obligations and the Third Lien Obligations may each be prepaid or refinanced so
long as such prepayment or refinancing is permitted by the terms of the Priority
Credit Agreement then in effect and the terms of this Agreement (including,
without limitation, Sections 4.04 and 4.05 hereof).
ARTICLE V
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Section 5.01 General. • Prior to the Discharge of Priority Lien Obligations,
the Priority Lien Agent agrees that if it shall at any time hold a Priority Lien
on any Collateral that can be perfected by the possession or control of such
bailee for (%4) the Second Lien Collateral Trustee for the sole purpose of
perfecting the Second Lien of the Second Lien Collateral Trustee on such
Collateral and (%4) the Third Lien Collateral Trustee for the sole purpose of
perfecting the Third Lien of the Third Lien Collateral Trustee on such
Collateral. It is agreed that the obligations of the Priority Lien Agent and the
rights of the Second Lien Collateral Trustee, the other Second Lien Secured
Parties, the Third Lien Collateral Trustee and the other Third Lien Secured
Parties in connection with any such bailment arrangement will be in all respects
subject to the provisions of Article II. Notwithstanding anything to the
contrary herein, the Priority Lien Agent will be deemed to make no
representation as to the adequacy of the steps taken by it to perfect the Second
Lien or Third Lien on any such Collateral and shall have no responsibility,
duty, obligation or liability to the Second Lien Collateral Trustee, any other
Lien Secured Party or any other Person for such perfection or failure to
perfect, it being understood that the sole purpose of this Article is to enable
the Second Lien Secured Parties to obtain a perfected Second Lien and the Third
Lien Secured Parties to obtain a perfected Third Lien in such Collateral to the
Priority Lien Security Documents, the Second Lien Security Documents, the Third
Lien Security Documents, this Agreement or any other document or theory, a
fiduciary relationship in respect of any Priority Lien Secured Party, the Second
Lien Collateral Trustee, any Second Lien Secured Party, the Third Lien
Collateral Trustee or any Third Lien Secured Party. Subject to Section 4.03,
from and after the Discharge of Priority Lien Obligations, the Priority Lien
Agent shall take all such actions in its power as shall reasonably be requested
by the Second Lien Collateral Trustee (at the sole cost and expense of the
Account (in each case to the extent the Second Lien Collateral Trustee has a
concurrent releases of Liens) to the Second Lien Collateral Trustee for the
benefit of all Second Lien Secured Parties.
(dd) Following the Discharge of Priority Lien Obligations but prior to the
Discharge of Second Lien Obligations, the Second Lien Collateral Trustee agrees
that if it shall at any time hold a Second Lien on any Collateral that can be
perfected by the possession or control of such Collateral or of any Account in
which such Collateral is held, and if such Collateral or any such Account is in
fact in the possession or under the control of the Second Lien Collateral
Trustee, the Second Lien Collateral Trustee will serve as gratuitous bailee for
the Third Lien Collateral Trustee for the sole purpose of perfecting the Third
Lien of the Third Lien Collateral Trustee on such Collateral. It is agreed that
the obligations of the Second Lien Collateral Trustee and the rights of the
Third Lien Collateral Trustee and the other Third Lien Secured Parties in
connection with any such bailment arrangement will be in all respects subject to
the provisions of Article II. Notwithstanding anything to the contrary herein,
the Second Lien Collateral Trustee will be deemed to make no representation as
to the adequacy of the steps taken by it to perfect the Third Lien on any such
the Third Lien Collateral Trustee or any other Third Lien Secured Party or any
other Person for such perfection or failure to perfect, it being understood that
the sole purpose of this Article is to enable the Third Lien Secured Parties to
obtain a perfected Third Lien in such Collateral to the extent, if any, that
such perfection results from the possession or control of such Collateral or any
such Account by the Second Lien Collateral Trustee. The Second Lien Collateral
Trustee acting pursuant to this Section 5.01 shall not have by reason of the
Second Lien Security Documents, the Third Lien Security Documents, this
of any Second Lien Secured Party, the Third Lien Collateral Trustee or any Third
Lien Secured
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Party. Subject to Section 4.03, from and after the Discharge of Second Lien
Obligations, the Second Lien Collateral Trustee shall take all such actions in
its power as shall reasonably be requested by the Third Lien Collateral Trustee
of such Collateral or any such Account (in each case to the extent the Third
Lien Collateral Trustee has a Lien on such Collateral or Account after giving
effect to any prior or concurrent releases of Liens) to the Third Lien
Collateral Trustee for the benefit of all Third Lien Secured Parties.
Section 5.02 Deposit Accounts. • Prior to the Discharge of Priority Lien
Lien Agent at any time, the Priority Lien Agent will act as gratuitous bailee
for (%4) the Second Lien Collateral Trustee for the purpose of perfecting the
Liens of the Second Lien Secured Parties and (%4) the Third Lien Collateral
Trustee for the purpose of perfecting the Liens of the Third Lien Secured
Parties in such Accounts and the cash and other assets therein as provided in
Section 5.01 (but will have no duty, responsibility or obligation to the Second
Lien Secured Parties or the Third Lien Secured Parties (including, without
except as set forth in the last sentence of this Section 5.02(a)). Unless the
Second Liens on such Collateral shall have been or concurrently are released,
after the occurrence of Discharge of Priority Lien Obligations, the Priority
Lien Agent shall, at the request of the Second Lien Collateral Trustee,
cooperate with the Grantors and the Second Lien Collateral Trustee (at the
expense of the Grantors) in permitting control of any other Accounts to be
transferred to the Second Lien Collateral Trustee (or for other arrangements
with respect to each such Accounts satisfactory to the Second Lien Collateral
Trustee to be made).
Discharge of Second Lien Obligations, to the extent that any Account is under
the control of the Second Lien Collateral Trustee at any time, the Second Lien
Collateral Trustee will act as gratuitous bailee for the Third Lien Collateral
Section 5.01 (but will have no duty, responsibility or obligation to the Third
Lien Secured Parties (including, without limitation, any duty, responsibility or
sentence of this Section 5.02(b)). Unless the Third Liens on such Collateral
shall have been or concurrently are released, after the occurrence of Discharge
of Second Lien Obligations, the Second Lien Collateral Trustee shall, at the
request of the Third Lien Collateral Trustee, cooperate with the Grantors and
the Third Lien Collateral Trustee (at the expense of the Grantors) in permitting
control of any other Accounts to be transferred to the Third Lien Collateral
Trustee (or for other arrangements with respect to each such Accounts
satisfactory to the Third Lien Collateral Trustee to be made).
ARTICLE VI
Section 6.01 Application of Proceeds. • Prior to the Discharge of Priority
Lien Obligations, and regardless of whether an Insolvency or Liquidation
Proceeding has been commenced, Collateral or Proceeds received in connection
portion of the Collateral will be applied:
(i) first, to the payment in full in cash of all Priority Lien Obligations
that are not Excess Priority Lien Obligations,
(iii) third, to the payment in full in cash of all Excess Priority Lien
Obligations,
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5279325v2
(iv) fourth, to the payment in full in cash of all Third Lien Obligations,
and
(v) fifth, to the Company or as otherwise required by applicable law.
Discharge of Second Lien Obligations, and regardless of whether an Insolvency or
Liquidation Proceeding has been commenced, Collateral or Proceeds received in
respect to any portion of the Collateral will be applied:
(ii) first, to the payment in full in cash of all Second Lien Obligations,
(iii) second, to the payment in full in cash of all Excess Priority Lien
Obligations,
(iv) third, to the payment in full in cash of all Third Lien Obligations, and
(v) fourth, to the Company or as otherwise required by applicable law.
Payments made on account of Secured Obligations under this Section 6.01 shall be
made to the applicable Secured Debt Representative for application in accordance
with its applicable Secured Debt Documents.
of any Priority Lien Obligations (or the existence of any commitment to extend
credit that would constitute Priority Lien Obligations), Second Lien Obligations
or Third Lien Obligations, or the existence of any Lien securing any such
such information be furnished to it in writing by the other Secured Debt
Representatives and shall be entitled to make such determination on the basis of
Company. Each Secured Debt Representative may rely conclusively, and shall be
court of competent jurisdiction) and shall have no liability to the Company or
any of their subsidiaries, any Secured Party or any other Person as a result of
such determination.
ARTICLE VII
Section 7.01 No Reliance; Information. The Priority Lien Secured Parties, the
Second Lien Secured Parties and the Third Lien Secured Parties shall have no
duty to disclose to any Third Lien Secured Party, to any Second Lien Secured
Party or to any Priority Lien Secured Party, as the case may be, any information
relating to the Company or any of the other Grantors, or any other circumstance
bearing upon the risk of non-payment of any of the Priority Lien Obligations,
the Second Lien Obligations or the Third Lien Obligations, as the case may be,
event any Priority Lien Secured Party, any Second Lien Secured Party or any
Third Lien Secured Party, in its sole discretion, undertakes at any time or from
time to time to provide any such information to, any Third Lien Secured Party,
any Second Lien Secured Party or any Priority Lien Secured Party, as the case
may be, it shall be under no obligation • to make, and shall not make or be
deemed to have made, any express
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5279325v2
completeness, truthfulness or validity of the information so provided, • to
subsequent occasion, or • to undertake any investigation.
(g) The Priority Lien Agent, for itself and on behalf of the other Priority
Lien Secured Parties, acknowledges and agrees that, except for the
representations and warranties set forth in Article VIII, (%4) neither the
Second Lien Collateral Trustee nor any other Second Lien Secured Party has made
perfection or priority of any Liens thereon and (%4) neither the Third Lien
Collateral Trustee nor any other Third Lien Secured Party has made any express
Third Lien Documents, the ownership of any Collateral or the perfection or
priority of any Liens thereon.
(h) The Second Lien Collateral Trustee, for itself and on behalf of the other
Second Lien Secured Parties, acknowledges and agrees that, except for the
Priority Lien Agent nor any other Priority Lien Secured Party has made any
any of the Priority Lien Documents, the ownership of any Collateral or the
Third Lien Secured Parties, acknowledges and agrees that, except for the
perfection or priority of any Liens thereon and (%4) neither the Second Lien
Collateral Trustee nor any other Second Lien Secured Party has made any express
(j) The Priority Lien Agent and the other Priority Lien Secured Parties shall
have no express or implied duty to the Second Lien Collateral Trustee, any other
Lien Secured Party, the Second Lien Collateral Trustee and the other Second Lien
Secured Parties shall have no express or implied duty to the Priority Lien
Agent, any other Priority Lien Secured Party, the Third Lien Collateral Trustee
or any other Third Lien Secured Party, and the Third Lien Collateral Trustee
shall have no express or implied duty to the Priority Lien Agent, any other
Priority Lien Secured Party, the Second Lien Collateral Trustee or any other
Second Lien Secured Party, in each case, to act or refrain from acting in a
or an event of default under any Priority Lien Document, any Second Lien
Document and any Third Lien Document (other than, in each case, this Agreement),
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(k) Each of the Second Lien Collateral Trustee, for itself and on behalf of
itself and on behalf of each other Third Lien Secured Party, hereby waives any
claim that may be had against the Priority Lien Agent or any other Priority Lien
Secured Party arising out of any actions which the Priority Lien Agent or such
Priority Lien Secured Party takes or omits to take (including actions with
or failure to realize upon, any Collateral, and actions with respect to the
collection of any claim for all or only part of the Priority Lien Obligations
release of any security for such Priority Lien Obligations. The Third Lien
Collateral Trustee, for itself and on behalf each other Third Lien Secured
Party, hereby waives any claim that may be had against the Second Lien
Collateral Trustee or any other Second Lien Secured Party arising out of any
actions which the Second Lien Collateral Trustee or such Second Lien Secured
Party takes or omits to take following the Discharge of Priority Lien
Obligations but prior to the Discharge of Second Lien Obligations (including
depreciation of, or failure to realize upon, any Collateral, and actions with
respect to the collection of any claim for all or only part of the Second Lien
with this Agreement and the Second Lien Documents or the valuation, use,
protection or release of any security for such Second Lien Obligations.
Section 7.03 Obligations Absolute. The Lien priorities provided for herein
and the respective rights, interests, agreements and obligations hereunder of
the Priority Lien Agent and the other Priority Lien Secured Parties, the Second
Lien Collateral Trustee and the other Second Lien Secured Parties, and the Third
Lien Collateral Trustee and the other Third Lien Secured Parties shall remain in
(c) any lack of validity or enforceability of any Secured Debt Document;
(d) any change in the time, place or manner of payment of, or in any other
Lien Obligations consists or may consist of Debt that is revolving in nature,
(e) any amendment, waiver or other modification, whether by course of conduct
or otherwise, of any Secured Debt Document;
(f) the securing of any Priority Lien Obligations, Second Lien Obligations or
Third Lien Obligations with any additional collateral or guarantees, or any
securing any Priority Lien Obligations, Second Lien Obligations or Third Lien
Obligations;
(g) the commencement of any Insolvency or Liquidation Proceeding in respect
(h) any other circumstances that otherwise might constitute a defense
the Priority Lien Obligations, the Second Lien Obligations or the Third Lien
Obligations.
48
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agrees that the obligations of the Grantors under the Secured Debt Documents
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES
(l) Such party is duly organized, validly existing and in good standing under
(m) This Agreement has been duly executed and delivered by such party.
(n) The execution, delivery and performance by such party of this Agreement
(%4) do not require any consent or approval of, registration or filing with or
the Priority Credit Agreement), (%4) will not violate any applicable law or
expected to have a Material Adverse Effect and (%4) will not violate the
Collateral Trustee represents and warrants to the other parties hereto that it
is authorized under the Priority Credit Agreement, the Second Lien Collateral
Trust Agreement and the Third Lien Collateral Trust Agreement, as the case may
be, to enter into this Agreement.
ARTICLE IX
MISCELLANEOUS
(i) if to the Original Priority Lien Agent, to it at:
Attention: Teresita R. Siao
712 Main, Floor 8 South
Houston, Texas 77002
49
5279325v2
Fax: 713-216-7794
Attention: Darren M. Vanek
(j) if to the Original Second Lien Collateral Trustee, to it at:
Global Capital Markets
Dallas, TX 75248
Fax: 888-316-6238
Attention: PetroQuest Collateral Trust Administrator
Shipman & Goodwin LLP
One Constitution Plaza
Hartford, CT 06103
Telephone: (860) 251-5000
Facsimile: (860) 251-5212
Attention: Marie C. Pollio
(k) if to any other Secured Debt Representative, to such address as specified
in the Priority Confirmation Joinder.
Section 9.01. As agreed to in writing among the Company, the Priority Lien
Section 9.02 Waivers; Amendment. • No failure or delay on the part of any
circumstances.
(a) Neither this Agreement nor any provision hereof may be terminated,
writing entered into by each Secured
50
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Debt Representative; provided, however, that this Agreement may be amended from
time to time as provided in Section 4.04. Any amendment of this Agreement that
is proposed to be effected without the consent of a Secured Debt Representative
as permitted by the proviso to the preceding sentence shall be submitted to such
Secured Debt Representative for its review at least 5 Business Days prior to the
proposed effectiveness of such amendment.
Section 9.03 Actions Upon Breach; Specific Performance. •(%4) Prior to the
Discharge of Priority Lien Obligations, if any Second Lien Secured Party or
Third Lien Secured Party, contrary to this Agreement, commences or participates
in any action or proceeding against any Grantor or the Collateral, such Grantor,
with the prior written consent of the Priority Lien Agent, may interpose as a
defense or dilatory plea the making of this Agreement, and any Priority Lien
name or in the name of such Grantor and (%4) following the Discharge of Priority
Lien Obligations but prior to the Discharge of Second Lien Obligations, if any
with the prior written consent of the Second Lien Collateral Trustee, may
Second Lien Secured Party may intervene and interpose such defense or plea in
its or their name or in the name of such Grantor.
(b) (%4) Prior to the Discharge of Priority Lien Obligations, should any
Second Lien Secured Party or Third Lien Secured Party, contrary to this
remedy with respect to this Agreement), or take any other action in violation of
this Agreement or fail to take any action required by this Agreement, the
Priority Lien Agent or any other Priority Lien Secured Party (in its own name or
in the name of the relevant Grantor) or the relevant Grantor, with the prior
written consent of the Priority Lien Agent, (%5) may obtain relief against such
Second Lien Secured Party or Third Lien Secured Party, as applicable, by
being understood and agreed by each of the Second Lien Collateral Trustee on
behalf of each Second Lien Secured Party and the Third Lien Collateral Trustee
on behalf of each Third Lien Secured Party that (%6) the Priority Lien Secured
may be irreparable, and (%6) each Second Lien Secured Party and Third Lien
of damages, and (%5) shall be entitled to damages, as well as reimbursement for
all reasonable and documented costs and expenses incurred in connection with any
action to enforce the provisions of this Agreement and (%4) following the
Discharge of Priority Lien Obligations but prior to the Discharge of Second Lien
Obligations, should any Third Lien Secured Party, contrary to this Agreement, in
respect to this Agreement), or take any other action in violation of this
Agreement or fail to take any action required by this Agreement, the Second Lien
Collateral Trustee or any other Second Lien Secured Party (in its own name or in
written consent of the Second Lien Collateral Trustee, (%5) may obtain relief
against such Third Lien Secured Party by injunction, specific performance and/or
other appropriate equitable relief, it being understood and agreed by the Third
Lien Collateral Trustee on behalf of each Third Lien Secured Party that the
Second Lien Secured Parties damages from its actions may at that time be
difficult to ascertain and may be irreparable, and (%6) each Third Lien Secured
Party waives any defense that the Grantors and/or the Second Lien Secured
reasonable and documented costs and expenses incurred in connection with any
action to enforce the provisions of this Agreement.
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Agreement.
Section 9.08 Governing Law; Jurisdiction; Consent to Service of Process. •
THE STATE OF NEW YORK, (INCLUDING SECTION 5-1401 AND SECTION 5-1402 OF THE NEW
YORK GENERAL OBLIGATION LAW, BUT WITHOUT REFERENCE TO ANY OTHER CONFLICTS OR
CHOICE OF LAW PRINCIPALS THEREOF).
jurisdiction.
court.
52
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TO THIS AGREEMENT. EACH PARTY HERETO • CERTIFIES THAT NO REPRESENTATIVE, AGENT
FOREGOING WAIVER AND • ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
this Agreement.
distinct and separate relative rights of the Priority Lien Secured Parties, the
Second Lien Secured Parties and the Third Lien Secured Parties. None of the
(provided that nothing in this Agreement (other than Sections 4.01, 4.02, 4.04,
4.05, or 4.10) is intended to or will amend, waive or otherwise modify the
provisions of the Priority Credit Agreement, the Second Lien Indenture or the
Initial Third Lien Debt Facility, as applicable), and except as expressly
provided in this Agreement neither the Company nor any other Grantor may rely on
the terms hereof (other than Sections 4.01, 4.04, 4.05, or 4.10, Article VII and
this Agreement, any Priority Lien Document, any Second Lien Document or any
Third Lien Document with respect to any Collateral in any manner that would
cause a default under any Priority Lien Document.
Section 9.13 Certain Terms Concerning the Second Lien Collateral Trustee and
the Third Lien Collateral Trustee. • The Second Lien Collateral Trustee is
pursuant to direction set forth in the Second Lien Collateral Trust Agreement;
and in so doing, the Second Lien Collateral Trustee shall not be responsible for
the terms or sufficiency of this Agreement for any purpose. The Second Lien
Collateral Trustee shall have no duties or obligations under or pursuant to this
Agreement other than such duties and obligations as may be expressly set forth
in this Agreement as duties and obligations on its part to be performed or
action under or pursuant to the Agreement, the Second Lien Collateral Trustee
other protections granted to it under the Second Lien Collateral Trust
Agreement, the Second Lien Indenture and the other Second Lien Documents.
(a) The Third Lien Collateral Trustee is executing and delivering this
Agreement solely in its capacity as such and pursuant to direction set forth in
the Third Lien Collateral Trust Agreement; and
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5279325v2
in so doing, the Third Lien Collateral Trustee shall not be responsible for the
terms or sufficiency of this Agreement for any purpose. The Third Lien
action under or pursuant to the Agreement, the Third Lien Collateral Trustee
other protections granted to it under any Third Lien Debt Facility and the Third
Lien Documents.
Section 9.14 Certain Terms Concerning the Priority Lien Agent, the Second
Lien Collateral Trustee and the Third Lien Collateral Trustee. None of the
Priority Lien Agent, the Second Lien Collateral Trustee or the Third Lien
Collateral Trustee shall have any liability or responsibility for the actions or
the Priority Lien Agent, the Second Lien Collateral Trustee or the Third Lien
Collateral Trustee shall have individual liability to any Person if it shall
mistakenly pay over or distribute to any Secured Party (or the Company) any
amounts in violation of the terms of this Agreement, so long as the Priority
Lien Agent, the Second Lien Collateral Trustee or the Third Lien Collateral
Trustee, as the case may be, is acting in good faith. Each party hereto hereby
acknowledges and agrees that each of the Priority Lien Agent, the Second Lien
Collateral Trustee and the Third Lien Collateral Trustee is entering into this
Agreement solely in its capacity under the Priority Lien Documents, the Second
Lien Documents and the Third Lien Documents, respectively, and not in its
individual capacity. • The Priority Lien Agent shall not be deemed to owe any
fiduciary duty to (%4) the Second Lien Collateral Trustee or any other Second
Lien Representative or any other Second Lien Secured Party or (%4) the Third
Lien Collateral Trustee or any other Third Lien Representative or any other
Third Lien Secured Party; • the Second Lien Collateral Trustee shall not be
deemed to owe any fiduciary duty to (%4) the Priority Lien Agent or any other
Priority Lien Secured Party or (%4) the Third Lien Collateral Trustee or any
other Third Lien Representative or any other Third Lien Secured Party; and • the
Third Lien Collateral Trustee shall not be deemed to owe any fiduciary duty to
(%4) the Priority Lien Agent or any other Priority Lien Secured Party or (%4)
the Second Lien Collateral Trustee or any other Second Lien Representative or
any other Second Lien Secured Party.
Section 9.15 Authorization of Secured Agents. By accepting the benefits of
this Agreement and the other Priority Lien Security Documents, each Priority
Lien Secured Party authorizes the Priority Lien Agent to enter into this
Second Lien Security Documents, each Second Lien Secured Party authorizes the
Second Lien Collateral Trustee to enter into this Agreement and to act on its
behalf as collateral agent hereunder and in connection herewith. By accepting
the benefits of this Agreement and the other Third Lien Security Documents, each
Third Lien Secured Party authorizes the Third Lien Collateral Trustee to enter
in connection herewith.
Section 9.16 Further Assurances. Each of the Priority Lien Agent, for itself
and on behalf of the other Priority Lien Secured Party, the Second Lien
Collateral Trustee, for itself and on behalf of the other Second Lien Secured
Parties, the Third Lien Collateral Trustee, for itself and on behalf of the
other Third Lien Secured Parties, and each Grantor party hereto, for itself and
Collateral Trustee may reasonably request, to effectuate the terms of this
54
5279325v2
Section 9.17 Relationship of Secured Parties. Nothing set forth herein shall
financial condition or ability to repay the Priority Lien Obligations, the
Second Lien Obligations or the Third Lien Obligations, or for statements of any
the Priority Lien Documents, the Second Lien Documents or the Third Lien
Documents, or any security interests granted by any Grantor to any Secured Party
in connection therewith. Each Secured Party has entered into its respective
financing agreements with the Grantors based upon its own independent
investigation, and none of the Priority Lien Agent, the Second Lien Collateral
Trustee or the Third Lien Collateral Trustee makes any warranty or
representation to the other Secured Debt Representatives or the Secured Parties
for which it acts as agent nor does it rely upon any representation of the other
agents or the Secured Parties for which it acts as agent with respect to matters
identified or referred to in this Agreement; provided that, nothing herein shall
impose an obligation on the Second Lien Trustee or Second Lien Collateral
Trustee to undertake any investigation with respect to the Grantors beyond that
which may be required by the Second Lien Notes Indenture or the Second Lien
Collateral Trust Agreement.
Section 9.18 Third Lien Provisions. Notwithstanding any of the foregoing
provisions, until such time as the Third Lien Collateral Trustee has, pursuant
to the terms hereof (including but not limited Section 4.04(c)), entered into,
and, for itself and on behalf of the Third Lien Secured Parties, agreed to be
bound by the terms of, this Agreement and executed a Priority Joinder
Confirmation, the provisions of this Agreement relating to the Third Lien
Obligations (including, but not limited to, the definitions of “Additional Third
Lien Debt Facility”, “Additional Third Lien Documents”, “Additional Third Lien
Obligations”, “Additional Third Lien Secured Parties”, “Additional Third Lien
Security Documents”, “Third Lien”, “Third Lien Collateral”, “Third Lien
Collateral Trust Agreement”, “Third Lien Collateral Trustee”, “Third Lien Debt”,
“Third Lien Documents”, “Third Lien First Standstill Period”, “Third Lien
Obligations”, “Third Lien Representative”, “Third Lien Second Standstill
Period”, “Third Lien Secured Parties”, “Third Lien Security Documents” and
“Third Lien Substitute Facility” and provisions regarding priority, enforcement
actions, Standstill Periods, release of Liens, Insolvency or Liquidation
Proceedings, reinstatement, amendments to Third Lien Documents and application
of proceeds) shall not be operative.
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5279325v2
above written.
JPMORGAN CHASE BANK, N.A., as Priority Lien Agent
Name: Darren Vanek
Title: Executive Director
[SIGNATURE PAGE – INTERCREDITOR AGREEMENT]
5279325v2
WILMINGTON TRUST, NATIONAL ASSOCIATION, as Second Lien Collateral Trustee
By: /s/ Shawn Goffinet
Name: Shawn Goffinet
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PETROQUEST ENERGY, INC., as Company
By: /s/ J. Bond Clement
Name: J. Bond Clement
Officer and Treasurer
PETROQUEST ENERGY, L.LC., as a Grantor
Officer and Treasurer
TDC ENERGY LLC, as a Grantor
Officer and Treasurer
5279325v2
Annex I
Provision for the Second Lien Indenture, any Additional Second Lien Debt
Facility, the Second Lien Documents, the Initial Third Lien Debt Facility, any
Additional Third Lien Debt Facility and the Third Lien Documents
Reference is made to the Intercreditor Agreement, dated as of February 17, 2016,
between JPMORGAN CHASE BANK, N.A., as Priority Lien Agent (as defined therein),
and WILMINGTON TRUST, NATIONAL ASSOCIATION, as Second Lien Collateral Trustee
(as defined therein) (the “Intercreditor Agreement”). Each holder of [any
Additional Second Lien Obligations][Initial Third Lien Obligations][Additional
Third Lien Obligations], by its acceptance of such [Additional Second Lien
Obligations][Initial Third Lien Obligations][Additional Third Lien Obligations]
(as defined therein) (i) consents to the subordination of Liens provided for in
authorizes and instructs the [Second/Third] Lien Collateral Trustee on behalf of
each [Second/Third] Lien Secured Party (as defined therein) to enter into the
Intercreditor Agreement as [Second/Third] Lien Collateral Trustee on behalf of
such [Second/Third] Lien Secured Parties. The foregoing provisions are intended
as an inducement to the lenders under the Priority Lien Documents (as defined in
the Intercreditor Agreement) to extend credit to the Company and such lenders
are intended third party beneficiaries of such provisions and the provisions of
the Intercreditor Agreement.
Provision for all Indenture Second Lien Security Documents, any Additional
Second Lien Security Documents, the Initial Third Lien Security Documents and
the Additional Third Lien Security Documents that Grant a Security Interest in
Collateral
(as defined therein) (the “Intercreditor Agreement”). Each Person that is
[Second Lien Collateral Trustee] [Third Lien Collateral Trustee] (as defined in
the Intercreditor Agreement) on behalf of such Person to enter into, and perform
available, to such Person.
Annex I-1
5279325v2
Exhibit A
[FORM OF]
PRIORITY CONFIRMATION JOINDER
defined therein), and WILMINGTON TRUST, NATIONAL ASSOCIATION, as Second Lien
Collateral Trustee for the Second Lien Secured Parties (as defined therein).
obligations of being [Additional [Second/Third] Lien Obligations][Initial third
Lien Obligations] under the Intercreditor Agreement.
agreement or other document governing the Second or [Initial/Additional] Third
party to the Intercreditor Agreement on behalf of the [Priority Lien Secured
Parties under a Priority Substitute Facility] [Indenture Second Lien Secured
Parties under the Second Lien Substitute Facility] [Additional Second Lien
Secured Parties under the Additional Second Lien Debt Facility] [Initial Third
Lien Secured Parties under the Initial Third Lien Debt Facility] [Additional
Third Lien Secured Parties under the Additional Third Lien Debt Facility] as [a
Priority Lien Agent under a Priority Substitute Facility] [a Second Lien
Collateral Trustee under a Second Lien Substitute Facility] [a Third Lien
Collateral Trustee under a Third Lien Substitute Facility] [Secured Debt
Representative] [Second Lien Representative] [Third Lien Representative] under
the date thereof; and
[Address];
[Option A: to be used if additional debt constitutes Priority Debt] The
Secured Party for which the undersigned is acting as [Administrative Agent]
Debt Representative, and as a condition to being treated as Priority Lien
Obligations under the Intercreditor Agreement, that the New Representative is
relating to the ranking of Priority Liens. [or]
[Option B: to be used if additional debt constitutes a Series of Second Lien
Debt] The undersigned New Representative, on behalf of itself and each holder of
Obligations in respect of the Series of Second
A-1
5279325v2
Lien Debt [that constitutes Second Lien Substitute Facility] for which the
undersigned is acting as [Second Lien Representative][Second Lien Collateral
Trustee] hereby agrees, for the benefit of all Secured Parties and each future
Secured Debt Representative, and as a condition to being treated as Secured Debt
by all Second Liens at any time granted by the Company or any other Grantor to
Collateral Trustee with respect to such Series of Second Lien Debt for the
benefit of all Second Lien Secured Parties equally and ratably;
Series of Second Lien Debt for which the undersigned is acting as [Second Lien
Representative] are bound by the provisions of the Intercreditor Agreement,
Representative] appoints the Second Lien Collateral Trustee and consents to the
incidental thereto. [or]
[Option C: to be used if additional debt constitutes a Series of Third Lien
Obligations in respect of the Series of Third Lien Debt [that constitutes Third
Lien Substitute Facility] for which the undersigned is acting as [Third Lien
Representative][Third Lien Collateral Trustee] hereby agrees, for the benefit of
all Secured Parties and each future Secured Debt Representative, and as a
condition to being treated as Secured Debt under the Intercreditor Agreement,
that:
(a) all Third Lien Obligations will be and are secured equally and ratably by
all Third Liens at any time granted by the Company or any other Grantor to
secure any Obligations in respect of such Series of Third Lien Debt, whether or
not upon property otherwise constituting Collateral for such Series of Third
Lien Debt, and that all such Third Liens will be enforceable by the Third Lien
Collateral Trustee with respect to such Series of Third Lien Debt for the
benefit of all Third Lien Secured Parties equally and ratably;
Series of Third Lien Debt for which the undersigned is acting as [Third Lien
Representative] [Third Lien Collateral Trustee] are bound by the provisions of
the Intercreditor Agreement, including the provisions relating to the ranking of
Priority Liens, Second Liens and Third Liens and the order of application of
proceeds from enforcement of Priority Liens, Second Liens and Third Liens; and
(c) [the New Representative and each holder of Obligations in respect of the
Representative] appoints the Third Lien Collateral Trustee and consents to the
terms of the Intercreditor Agreement and the performance by the Third Lien
Collateral Trustee of, and directs the Third Lien Collateral Trustee to perform,
its obligations under the Intercreditor Agreement and the Third Lien Collateral
Trust Agreement, together with all such powers as are reasonably incidental
thereto.]
A-2
5279325v2
effect.
Confirmation Joinder.
5. Expenses. The Company agrees to reimburse each Secured Debt Representative
disbursements of counsel.
A-3
5279325v2
By:
Name:
Title:
_______________________________________
as Priority Lien Agent
By:
Name:
Title:
Confirmation Joinder [and agrees to act as Second Lien Collateral Trustee for
the New Representative and the holders of the Obligations represented thereby]:
_______________________________________
By:
Name:
Title:
[The Third Lien Collateral Trustee hereby acknowledges receipt of this Priority
Confirmation Joinder [and agrees to act as Third Lien Collateral Trustee for the
New Representative and the holders of the Obligations represented thereby]:
_______________________________________
as Third Lien Collateral Trustee
By:
Name:
Title:
A-4
5279325v2
By:
Name:
Title:
A-5
5279325v2
Exhibit B
SECURITY DOCUMENTS
PART A.
1. Amended and Restated Mortgage, Assignment of As-Extracted Collateral,
Security Agreement and Fixture Filing dated effective March 29, 2013 from
PetroQuest Energy, L.L.C. for the benefit of JPMorgan Chase Bank, N.A., as
Administrative Agent, filed as follows:
JURISDICTION
FILING INFORMATION
FILE DATE
Bureau of Ocean Energy Management
OCS leases 57, 58, 59, 60, 62, 03137, 01984, 2037, 12345, 12346, 12347, 12348,
12349, 07619, 23754, 22549, 22797
May 3, 2013
Cameron Parish, Louisiana
File No. 329174
May 2, 2013
Jefferson Parish, Louisiana
Instrument No. 11322747, Mortgage Book 4573, Page 745
May 7, 2013
Lafourche Parish, Louisiana
Instrument No. 1155906, Book 1610, Page 89
May 10, 2013
Plaquemines Parish, Louisiana
File No. 2013-00002008, Book 618, Page 517
May 2, 2013
Terrebonne Parish, Louisiana
File No. 1427339, Book 2565, Page 33
May 20, 2013
Vermilion Parish, Louisiana
Document No. 2013004930-MO
May 7, 2013
2. Amended and Restated Deed of Trust, Mortgage, Fixture Filing, Assignment
of As-Extracted Collateral, Security Agreement and Financing Statement dated
effective March 29, 2013 from PetroQuest Energy, L.L.C. for the benefit of
JPMorgan Chase Bank, N.A., as Administrative Agent, filed as follows:
JURISDICTION
FILING INFORMATION
FILE DATE
La Salle County, Texas
Document No. 00104269, Volume 696, Page 385
April 30, 2013
Panola County, Texas
Document No. 174166, Volume 1722, Page 482
April 26, 2013
3. Mortgage, Assignment of As-Extracted Collateral, Security Agreement and
Fixture Filing dated effective July 3, 2013 from PetroQuest Energy, L.L.C. for
the benefit of JPMorgan Chase Bank, N.A., as Administrative Agent, filed as
follows:
B-1
5279325v2
JURISDICTION
FILING INFORMATION
FILE DATE
Cameron Parish, Louisiana
Conveyance Book File No. 329960, Mortgage Book File No. 329920
July 24, 2013 (Conveyance)
July 19, 2013 (Mortgage)
Iberia Parish, Louisiana
File No. 2013-00008181, Book 1537, Page 357
July 19, 2013
Plaquemines Parish, Louisiana
File No. 2013-00003180, Book 1298, Page 462
July 18, 2013
St. Mary Parish, Louisiana
File No. 316940, Book 279, Page 566
July 24, 2013
Terrebonne Parish, Louisiana
File No. 1432751, Book 2342, Page 766
July 24, 2013
Vermilion Parish, Louisiana
Document No. 2013007499
July 19, 2013
4. Deed of Trust, Mortgage, Fixture Filing, Assignment of As-Extracted
Collateral, Security Agreement and Financing Statement dated effective July 3,
2013 from PetroQuest Energy, L.L.C. for the benefit of JPMorgan Chase Bank,
N.A., as Administrative Agent, filed as follows:
JURISDICTION
FILING INFORMATION
FILE DATE
Lease Nos. OCS 00541, OCS 00810, OCS 00812, OCS-G 01088, OCS-G 03169, OCS-G
25937, OCS-G 27070, ROW OCS-G 28512, ROW OCS-G 29054, ROW OCS-G 29055, ROW OCS-G
29058, ROW OCS-G 29107
July 22, 2013
Galveston County, Texas
Document No. 2013045779
July 19, 2013
5. Mortgage, Assignment of As-Extracted Collateral, Security Agreement and
Fixture Filing dated effective May 7, 2014 from PetroQuest Energy, L.L.C. for
follows:
JURISDICTION
FILING INFORMATION
FILE DATE
Terrebonne Parish, Louisiana
Document No. 1455064, Book 2658, Page 790
June 3, 2014
Vermilion Parish, Louisiana
Document No. 2014004969 – CO/MO
May 23, 2014
B-2
5279325v2
6. Deed of Trust, Mortgage, Fixture Filing, Assignment of As-Extracted
Collateral, Security Agreement and Financing Statement dated effective May 7,
2014 from PetroQuest Energy, L.L.C. for the benefit of JPMorgan Chase Bank,
JURISDICTION
FILING INFORMATION
FILE DATE
Panola County, Texas
Document No. 183227, Book 1779, Page 641
May 22, 2014
7. Mortgage, Assignment of As-Extracted Collateral, Security Agreement and
Fixture Filing dated effective September 29, 2014 from PetroQuest Energy, L.L.C.
follows:
JURISDICTION
FILING INFORMATION
FILE DATE
Assumption Parish, Louisiana
Document No. 255471, Book 422, Page 1
October 3, 2014
8. Deed of Trust, Mortgage, Fixture Filing, Assignment of As-Extracted
Collateral, Security Agreement and Financing Statement dated effective September
29, 2014 from PetroQuest Energy, L.L.C. for the benefit of JPMorgan Chase Bank,
JURISDICTION
FILING INFORMATION
FILE DATE
Panola County, Texas
Document No. 186002, Book 1798, Page 144
October 3, 2014
9. Mortgage, Assignment of As-Extracted Collateral, Security Agreement and
Fixture Filing dated effective March 10, 2015 from PetroQuest Energy, L.L.C. for
follows:
JURISDICTION
FILING INFORMATION
FILE DATE
Vermilion Parish, Louisiana
Document No. 2015002937-MO/CO
March 23, 2015
10. Amendment to Deeds of Trust, Mortgages, Assignments, Security Agreements,
Fixture Filings and Financing Statements dated effective June 4, 2015 from
PetroQuest Energy, L.L.C. to Jo Linda Papadakis, Trustee for the benefit of
B-3
5279325v2
JURISDICTION
FILING INFORMATION
FILE DATE
12349, 07619, 23754, 22549, 22797; and
July 14, 2015
Assumption Parish, Louisiana
Document No. 258535, Book 430, Page 478
June 30, 2015
Cameron Parish, Louisiana
Document No. 336045
June 29, 2015
Iberia Parish, Louisiana
Document No. 2015-00005907, Book 1584, Page 188
June 29, 2015
Jefferson Parish, Louisiana
Document No. 11530891, Book 4658, Page 729
July 21, 2015
Lafourche Parish, Louisiana
Document No. 1201439, Book 1732, Page 806
July 13, 2015
Plaquemines Parish, Louisiana
Document No. 2015-00002716, Book 667, Page 324
July 13, 2015
Document No. 322396, Conveyance Book 319, Page 157, Mortgage Book 1442, Page 250
June 29, 2015
Terrebonne Parish, Louisiana
Document No. 1483744, Book 2750, Page 455
June 30, 2015
Vermilion Parish, Louisiana
Document No. 2015006585-MO/CO
June 29, 2015
11. Amendment to Deeds of Trust, Mortgages, Assignments, Security Agreements,
B-4
5279325v2
JURISDICTION
FILING INFORMATION
FILE DATE
Galveston County, Texas
Document No. 2015040112
June 25, 2015
Document No. 00118770, Book 873, Page 28
June 24, 2015
Panola County, Texas
Document No. 190617, Book 1830, Page 511
June 24, 2015
12. Supplement to Deed of Trust, Mortgage, Assignment, Security Agreement,
Fixture Filing and Financing Statement dated effective August 26, 2015 from
JURISDICTION
FILING INFORMATION
FILE DATE
Panola County, Texas
Document No. 192112, Book 1841, Page 166
September 8, 2015
PART B.
List of Indenture Second Lien Security Documents
Louisiana
1. Second Lien Mortgage, Assignment of As-Extracted Collateral, Security
Agreement and Fixture Filing to be entered into on or before April 17, 2016 by
PetroQuest Energy, L.L.C. for the benefit of Wilmington Trust, National
Association, as Collateral Trustee, to be filed in each of Cameron Parish,
Iberia Parish, Jefferson Parish, Lafourche Parish, Plaquemines Parish, St. Mary
Parish, Terrebonne Parish and Vermilion Parish, Louisiana, with a copy to be
filed with the Bureau of Ocean Energy Management.
Association, as Collateral Trustee, to be filed in Assumption Parish, Louisiana.
Texas
1. Second Lien Deed of Trust, Mortgage, Fixture Filing, Assignment of
As-Extracted Collateral, Security Agreement and Financing Statement to be
entered into on or before April 17, 2016 by PetroQuest Energy, L.L.C. for the
benefit of Wilmington Trust, National Association, as Collateral Trustee, to be
filed in each of La Salle County and Panola County, Texas.
2. Second Lien Deed of Trust, Mortgage, Fixture Filing, Assignment of
filed in Galveston County, Texas, with a copy to be filed with the Bureau of
Ocean Energy Management.
B-5
5279325v2
In lieu of or in addition to the foregoing deeds of trust and mortgages, one or
more other mortgages or deeds of trust, or amendments and supplements thereto,
as approved and agreed to by the Priority Lien Agent, together with any
financing statements and other recording instruments related thereto as approved
and agreed to by the Priority Lien Agent.
PART C.
List of Initial Third Lien Security Documents
1. None as of the date hereof.
B-6
5279325v2
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Exhibit 10.30
SPLIT DOLLAR AGREEMENT
THIS SPLIT DOLLAR AGREEMENT (this “Agreement”) is made as of this 27th day of
January, 2009 by and between Alliance Bank, N.A., and Jack H. Webb (the
WHEREAS, to encourage the Employee to remain a Employee of the Bank, the Bank is
willing to allocate a portion of the death proceeds of a life insurance policy
on the Employee’s life to the Employee’s beneficiary(ies) if the Employee dies
while actively employed by the Bank. The Bank will pay life insurance premiums
ARTICLE 1
DEFINITIONS
meanings specified:
1.1 Employee’s Interest means the benefit set forth in Section 2
1.2 Insurer means each life insurance carrier with a Split Dollar Policy
Endorsement attached to this Split Dollar Agreement.
1.3 Net Amount At Risk means, on any date, the difference in the Death
Benefit payable by the insurance carrier and the cash surrender value of the
policy(ies) owned by the Bank on the Employee’s life.
1.4 Policy means the specific life insurance policy or policies issued by
1.5 Split Dollar Policy Endorsement means the form required by the
Administrator or the Insurer to indicate the Employee’s interest, if any, in a
Policy on the Employee’s life.
1.6 Termination of Employment means that the Employee shall have ceased
to be employed by the Bank for any reason whatsoever, excepting a leave of
dispute over the status of the Employee or the date of termination of the
Employee’s service, the Bank shall have the sole and absolute right to decide
the dispute.
ARTICLE 2
POLICY OWNERSHIP/INTERESTS
beneficiary of any death proceeds remaining after the Employee’s Interest has
been paid under Section 2.2 of this Split Dollar Agreement.
2.2 Employee’s Interest. Upon the Employee’s death before Termination of
Employment, the Employee shall have the right to designate the beneficiary(ies)
of death proceeds in an amount determined under the schedule set forth in
Appendix A to this Agreement but, in no event, an amount in excess of the Net
Amount at Risk on the Employee’s date of death. Subject to the terms of this
Split Dollar Agreement, the Bank hereby endorses the Employee’s Interest to the
Employee and agrees to execute any other or further documents that may be
required to effectuate this Split Dollar Agreement. The Employee shall have the
right to elect and change settlement options specified in the Policy that may be
permitted. However, the Employee, the Employee’s transferee, and the Employee’s
beneficiary(ies) or estate shall have no rights or interests in the Policy for
that portion of the death proceeds designated in this Section 2.2 if the
Employee’s Termination of Employment occurs before the Employee’s death.
2.3 Premium Payment. The Bank shall pay any premiums due on the Policy.
2.4 Imputed Income. The Bank shall impute income to the Employee annually
to reflect the value of the coverage provided under this Split Dollar Agreement
in an amount determined in accordance with applicable federal tax requirements.
2.5 Internal Revenue Code Section 1035 Exchanges. The Employee recognizes
and agrees that the Bank may after this Split Dollar Agreement is adopted wish
to exchange the Policy of life insurance on the Employee’s life for another
contract of life insurance insuring the Employee’s life. Provided that the
medical insurance-related testing required by a prospective insurer for
comparable insurer.
ARTICLE 3
BENEFICIARIES
3.1 Beneficiary Designations. The Employee shall designate a beneficiary
by filing a written designation with the Bank. The Employee’s beneficiary
the Employee, or if the Employee names a spouse as beneficiary and the marriage
is subsequently dissolved. If the Employee dies without a valid beneficiary
designation, all payments shall be made to the Employee’s estate.
ARTICLE 4
GENERAL LIMITATIONS
4.1 Termination of Employment. Notwithstanding any provision of this
Agreement to the contrary, the Employee’s Interest in the Policy shall terminate
if the Employee’s employment with the Bank terminates or is terminated for any
reason (other than his death while actively employed), and the Bank’s
4.2 Insurer. The Insurer shall be bound only by the terms of the Policy.
Any payments the Insurer makes or actions it takes in accordance with the Policy
provisions of this Split Dollar Agreement.
ARTICLE 5
CLAIMS AND REVIEW PROCEDURES
5.1 Claims Procedure. If the Administrator denies part of or the entire
5.1.1 Initiation: Written Claim. The claimant initiates a claim by
submitting to the Administrator a written claim for the benefits.
5.1.2 Timing of Administrator Response. The Administrator shall respond to
such claimant within 90 days after receiving the claim. If the Administrator
5.1.3 Notice of Decision. If the Administrator denies part or all of the
claim, then the Administrator shall notify the claimant in writing of such
is based,
(d) an explanation of this Agreement’s review procedures and the time limits
(e) a statement of the claimant’s right, if any, to bring a civil action under
claim, then the claimant shall have the opportunity for a full and fair review
by the Administrator of the denial, as follows:
5.2.1 Initiation of Written Request. To initiate the review, the claimant
5.2.2 Additional Submissions for Information Access. The claimant shall
claim for benefits.
5.2.3 Considerations on Review. In considering the review, the
5.2.4 Timing of Administrator Response. The Administrator shall respond in
time for processing the claim, then the Administrator can extend the response
5.2.5 Notice of Decision. The Administrator shall notify the claimant in
is based,
(d) a statement of the claimant’s right, if any, to bring a civil action under
ARTICLE 6
ADMINISTRATION
6.1 Administration. This Split Dollar Agreement shall be administered by
an Administrator, which shall consist of the Bank’s board of directors or such
regulations for the administration of this Split Dollar Agreement, and
(b) decide or resolve any and all questions, including interpretations
of this Split Dollar Agreement, as may arise in connection with the Split Dollar
Agreement.
6.2 Named Agents. In the administration of this Split Dollar Agreement,
the Administrator may employ agents and delegate to them such administrative
the administration, interpretation, and application of this Split Dollar
conclusive and binding upon all persons having any interest in this Split Dollar
Agreement.
6.4 Indemnity of Administrator. The Bank shall indemnify and hold harmless
to this Split Dollar Agreement, except in the case of willful misconduct by the
6.5 Information. To enable the Administrator to perform its functions, the
Bank shall supply full and timely information to the Administrator on all
Termination of Employment of the Employee and such other pertinent information
ARTICLE 7
MISCELLANEOUS
7.1 Amendment and Termination. This Split Dollar Agreement shall terminate
automatically if the Employee’s Termination of Employment occurs before the
Employee’s death. This Split Dollar Agreement shall also terminate upon the
(a) surrender, lapse, or other termination of the Policy by the Bank, which the
Bank reserves the absolute right to do,
(b) cessation of the Bank’s business, which is not continued by the Bank’s
successor, if any,
(c) written notice of termination by the Employee,
(d) bankruptcy, receivership, or dissolution of the Bank, or
(e) distribution of the death benefit proceeds in accordance with Section 2.2
above.
If this Split Dollar Agreement is terminated, the Bank may in its sole
discretion retain or terminate the Policy.
7.2 Binding Effect. This Agreement shall bind the Employee and the Bank
7.3 Non-Transferability. Benefits under this Agreement cannot be sold,
transferred, assigned, pledged, attached, or encumbered in any manner without
7.4 Applicable Law. Except to the extent preempted by federal law, the
York, without giving effect to the principles of conflict of laws of such state.
7.5 Entire Agreement. This Agreement constitutes the entire agreement
rights are granted to the Employee’s beneficiary(ies) under this Agreement other
7.6 Severability. If for any reason any provision of this Agreement is
remainder of such provision, and to the full extent consistent with law the
remainder of such provision shall, together with all other provisions of this
7.7 Headings. The captions and section headings in this Agreement are
7.8 Notices. All notices, requests, demands, and other communications
Chairman
Compensation Committee
Board of Directors
Alliance Bank, N.A.
120 Madison Street
the address maintained in the records of the Bank
7.10 Successors. The Bank shall require any successor (whether direct or
agree to perform this Split Dollar Agreement in the same manner and to the same
extent that the Bank would be required to perform this Split Dollar Agreement if
no succession had occurred.
By:
/s/ Lowell A. Seifter
Jack H. Webb
Appendix A
Schedule of Employee’s Interest Under Section 2.2
of the Split Dollar Agreement with Jack H. Webb*
Year of Death
Employee’s Interest Under Section 2.2
2010
$958,152
2011
$1,114,890
2012
$1,268,799
2013
$1,432,353
2014
$1,605,706
2015
$1,788,379
2016
$1,980,482
2017 or later
$2,129,831
* The Employee’s Interest is the lesser of (i) the dollar amount specified above
or (ii) the Net Amount at Risk; provided the Employee is employed by the Bank on
his date of death.
|
Exhibit 32 CERTIFICATIONS PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION -OXLEY ACT OF 2002 Pursuant to 18 U.S.C Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, the undersigned officers of Old Line Bancshares, Inc. (the “Company”) each certifies to the best of his or her knowledge that the Company’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2012 fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934 and information contained in that Form 10-Q fairly presents, in all material respects, the financial condition and results of operations of the Company. /s/ James W. Cornelsen James W. Cornelsen President and Chief Executive Officer November 14, 2012 /s/ Christine M. Rush Christine M. Rush Executive Vice President and Chief Financial Officer November 14, 2012 This certification is made solely for the purpose of 18 U.S.C. Section 1350, and is not being filed as part of the Form 10-Q or as a separate disclosure document, and may not be disclosed, distributed or used by any person for any reason other than as specifically required by law. 80
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SECURITY AGREEMENT
THIS SECURITY AGREEMENT (this “Agreement”), is entered into and made effective
as of September 11, 2006, by and between GWIN, INC., a Delaware corporation with
its principal place of business located at 5052 South Jones Boulevard, Las
Vegas, Nevada 89118 (the “Company”), and CSI BUSINESS FINANCE, INC., a Florida
WHEREAS, the parties hereto shall, contemporaneously with the execution and
delivery of this Agreement, enter into that certain Loan Agreement (the “Loan
Agreement”) pursuant to which the Secured Party shall lend to the Company, and
the Company shall borrow from the Secured Party the sum of Six Hundred
Fifty-Five Thousand Dollars ($655,000) (the “Loan Amount”);
WHEREAS, as a material inducement for Secured Party to enter into the Loan
Agreement and to fund the Loan Amount, the Company has agreed to issue to the
Secured Party two (2) promissory notes on the terms and subject to the
conditions set forth in the Loan Agreement (collectively, the “Notes” and each,
a “Note”) in the form attached to the Loan Agreement as Exhibit A and evidencing
the terms and conditions of each Note;
WHEREAS, to induce the Secured Party to enter into the Loan Agreement, the Note,
that certain Pledge and Escrow Agreement (the “Pledge Agreement”), of even date
herewith, by and among the Company, the Secured Party and the Escrow Agent, that
certain Insider Pledge and Escrow Agreement (“Insider Pledge Agreement”), of
even date herewith, by and among the Company, the Secured Party, Wayne Allyn
Root and the Escrow Agent and that certain Subsidiary Security Agreement, of
even date herewith, by and between Global SportsEDGE, Inc., a wholly-owned
subsidiary of the Company and the Secured Party (the “Subsidiary Security
Agreement” and, together with this Agreement, the Notes, the Pledge Agreement,
the Insider Pledge Agreement and the Subsidiary Security Agreement, the
follows:
ARTICLE 1.
DEFINITIONS AND INTERPRETATIONS
by reason hereof.
Agreement, the Transaction Documents, and any other amounts now or hereafter
owed to the Secured Party by the Company thereunder or hereunder (collectively,
ARTICLE 2.
Exhibit A attached hereto and the products thereof and the proceeds of all such
items (collectively, the “Pledged Property”):
herein.
and be continuing:
2
and
of the outstanding principal plus accrued interest owed pursuant to the Notes as
described herein.
upon an Event of Default under the Notes or the Loan Agreement.
ARTICLE 3.
3
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES
Except for the security interests created in connection with the Transaction
Documents and as disclosed in Schedule 4.2 attached hereto, the Company warrants
encumbrance.
Section 4.3 Obligations With Respect To Laurus Note.
The Company warrants and represents that it will continue to make payments equal
to not less than Twenty-Five Thousand Dollars ($25,000) per month to Laurus
Master Fund Ltd. (“Laurus”) with respect to the Company’s obligations to Laurus
(collectively, the “Laurus Obligation”) under that certain Securities Purchase
Agreement, that certain Term Note and all other documents entered into by and
between the Company and Laurus in connection therewith (collectively, the
“Laurus Documents”) as is more fully set forth in Schedule 4.2 hereto and as
disclosed in the Company’s Current Report on Form 8-K as filed with the U.S.
Securities and Exchange Commission on December 2, 2004. The Company warrants and
represents that it will use its commercial best efforts to pay off the Laurus
Obligation on or before September 1, 2007. The Company also warrants and
represents that the Laurus Obligation is secured by (a) certain assets of the
Company and its subsidiaries pursuant to a Master Security Agreement, dated
October 29, 2004 (the “Pledged Collateral”) and (b) the assignment of all of the
funds which are released from certain credit card security accounts pursuant to
that certain Letter of Instruction, dated on or about October 29, 2004, to
Laurus (together with the Pledged Collateral, the “Laurus Collateral”). The
Company warrants and represents that the Secured Party shall, upon the Company
fully satisfying the Laurus Obligation, have a first priority security interest
in all of the Laurus Collateral to secure the Obligations hereunder and that the
documents and instruments, including, without limitation, financing statements,
certificates, affidavits, letters of instruction and forms as may, in the
Secured Party’s reasonable judgment, be necessary to effectuate, complete or
perfect, or to continue and preserve, the security interest in the Laurus
Collateral, and the Secured Party shall hold such documents and instruments as
secured party, subject to the terms and conditions contained herein.
4
ARTICLE 5.
Secured Party or its nominee, (iii) to dispose of the Pledged Property and
Secured Party.
notice period is hereby agreed to be commercially reasonable. At any sale or
applied as follows:
5
Uniform Commercial Code.
hereof.
to the rights of previous security holders including, without limitation, Laurus
under the Laurus Documents, shall be entitled and empowered, by intervention in
proceeding), and
6
ARTICLE 6.
AFFIRMATIVE COVENANTS
correct; and
7
respecting any of the indebtedness of the Company in excess of Fifty Thousand
Dollars ($50,000) (other than the Obligations), or any demand or other request
excess of Fifty Thousand Dollars ($50,000), including any received from any
transactions contemplated in the Transaction Documents or the Loan Instruments.
8
Agreement.
applicable law.
and when due
9
terms thereof.
actions, suits or proceedings wherein the amount at issue is in excess of Fifty
Thousand Dollars ($50,000), instituted by any persons against the Company, or
Section 6.13 Payment of Loan Amount.
The Company shall use one hundred percent (100%) of any and all proceeds
received from the issuance by the Company of all warrants, options or
newly-issued shares of the Company’s capital stock to pay down the Loan Amount,
including any and all interest accrued thereon, through such time the Loan
Amount, including any and all interest accrued thereon, is paid off in full.
ARTICLE 7.
NEGATIVE COVENANTS
indebtedness on its part in excess of Fifty Thousand Dollars ($50,000),
including commitments, contingencies and credit availabilities, or apply for or
offer or agree to do any of the foregoing.
10
Other than by executing and implementing the Transaction Documents, the Company
Acquisitions and Sales.
shall not: (a) amend its Certificate of Incorporation (as amended) or By-Laws;
interest in or lease all or any substantial part of its assets nor (f) create
with the Company.
Secured Party.
business.
11
Twenty-Five Thousand Dollars ($25,000) (excluding any indebtedness of the
Company to the Secured Party, trade accounts payable and accrued expenses
incurred in the ordinary course of business and the endorsement of negotiable
instruments payable to the Company, respectively for deposit or collection in
Agreement.
The location of the Company’s chief place of business is 5052 South Jones
Boulevard, Las Vegas, Nevada 89118. The Company shall not change the location of
ARTICLE 8.
MISCELLANEOUS
CSI Business Finance, Inc.
109 North Post Oak Lane, Suite 422
Houston, Texas 77024
Attention: Timothy J. Connolly
Telephone: (713) 621-2737
Facsimile: (713) 586-6678
12
GWIN, Inc.
5052 S. Jones Blvd.
Suite 100
Attention: Douglas R. Miller
Telephone: (702) 967-7200
to this Agreement.
Secured Party.
13
effect to the principles of conflicts of laws thereof. Each of the parties
hereto consents to the jurisdiction of the federal and state courts of the State
of Texas in any such action or proceeding and waives any objection to venue laid
therein.
matter hereof.
14
Section 8.10. Opportunity to Hire Counsel; Role of Kirkpatrick & Lockhart
Nicholson Graham LLP.
The Secured Party acknowledges that they have been advised and have been given
an opportunity to hire counsel with respect to this Agreement and the
transactions contemplated hereby. The Secured Party further acknowledges that
the law firm of Kirkpatrick & Lockhart Nicholson Graham LLP has solely
represented the Company in connection with this Agreement and the transactions
contemplated hereby and no other person.
15
COMPANY:
GWIN, INC.
By: /s/ Wayne Allyn Root
SECURED PARTY:
CSI BUSINESS FINANCE, INC.
16
EXHIBIT A
DEFINITION OF PLEDGED PROPERTY
the foregoing;
the foregoing;
created" including;
A-1
SCHEDULE 4.2
On December 1, 2004, the Company closed on a transaction with Laurus Master Fund
Ltd. (“Laurus”) in which the Company borrowed $600,000 from Laurus pursuant to a
Convertible Term Note (“Term Note”) for $600,000 and the Company issued a seven
(7) year warrant to purchase 2,666,667 shares of Common Stock at an exercise
price of $0.09 per share. The Term Note is due in three (3) years, bears
interest at thirteen percent (13%), with the interest being payable monthly; and
principal payments are amortized over the term of the loan with the first
payment due February 1, 2005; and the payments of principal and interest may be
paid using shares of Common Stock at a price of $0.073, subject to adjustment,
if certain conditions are met.
The Term Note is secured by (a) a personal guaranty of Wayne Allyn Root; (b) a
pledge by Mr. Root of all of his shares of the Company; (c) an assignment of all
of the funds which are released from certain credit card security accounts; and
(d) a master security agreement covering all of the assets of the Company.
The loan and sale of the warrant were made pursuant to a Securities Purchase
Agreement with Laurus. Laurus has no relationship with the Company or any of its
affiliates other than the fact that Laurus entered into a somewhat similar
transaction with the Company in 2002, and the Company still owed to Laurus
approximately $119,000 as of November 30, 2004 on the original loan transaction.
The Company paid to Laurus Capital Management, LLC, the manager of Laurus, a fee
of $21,000 plus $10,000 for its expenses. The funds from this loan are being
used for general working capital purposes.
The Securities Purchase Agreement requires that the Company file a registration
statement with the SEC registering the shares to be issued as payments on the
Term Note and the shares issuable upon exercise of the warrant (collectively,
the “Securities”). As of March 25, 2005, the Company has an effective
Registration Statement on Form SB-2 which covers the Securities.
The Company filed a Current Report on Form 8-K with the U.S. Securities and
Exchange Commission on December 2, 2004 disclosing this transaction and copies
of the Securities Purchase Agreement and the Term Note are attached as Exhibits
10.27 and 10.28 thereto.
Schedule 4.2-1
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Exhibit 1.1 Norfolk Southern Corporation $600,000,000 3.000% Senior Notes due 2022 UNDERWRITING AGREEMENT March 12, 2012 J.P. Morgan Securities LLC Merrill Lynch, Pierce, Fenner & Smith Incorporated Morgan Stanley & Co. LLC Underwriting Agreement March 12, 2012 J.P. Morgan Securities LLC 383 Madison Avenue New York, New York10179 Merrill Lynch, Pierce, Fenner & Smith Incorporated One Bryant Park New York, New York10036 Morgan Stanley & Co. LLC 1585 Broadway New York, New York 10036 As Representatives of the several Underwriters Ladies and Gentlemen: Norfolk Southern Corporation, a Virginia corporation (the “Company”), proposes to issue and sell to the several underwriters named in Schedule A hereto (the “Underwriters”), for whom you are acting as representatives (the “Representatives”), $600,000,000 aggregate principal amount of the Company’s 3.000% Senior Notes due 2022 (the “Notes”). The Notes will be issued pursuant to an Indenture, to be dated as of March 15, 2012, between the Company and U.S. Bank Trust National Association, as trustee (the “Trustee”), as supplemented by a First Supplemental Indenture, to be dated as of March 15, 2012, between the Company and the Trustee (as so supplemented, the “Indenture”).The Notes will be issued in book-entry form in the name of Cede & Co., as nominee of The Depository Trust Company (the “Depositary”), pursuant to a blanket Letter of Representations on file with the Depositary (the “DTC Agreement”), among the Company, the Trustee and the Depositary. The Company has prepared and filed with the Securities and Exchange Commission (the “Commission”) a registration statement on Form S-3 (File No. 333-179569), which contains a base prospectus (the “Base Prospectus”), to be used in connection with the public offering and sale of debt securities, including the Notes, and other securities of the Company under the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (collectively, the “Securities Act”), and the offering thereof from time to time in accordance with Rule 415 under the Securities Act.Such registration statement, including the financial statements, exhibits and schedules thereto, in the form in which it became effective under the Securities Act, including any required information deemed to be a part thereof at the time of effectiveness pursuant to Rule430B under the Securities Act, is called the “Registration Statement.”Any registration statement filed by the Company pursuant to Rule 462(b) under the Securities Act is called the “Rule 462(b) Registration Statement” and from and after the date and time of filing of the Rule 462(b) Registration Statement the term “Registration Statement” shall include the Rule 462(b) Registration Statement.The term “Prospectus” shall mean the final 2 prospectus supplement relating to the Notes, together with the Base Prospectus, that is first filed pursuant to Rule424(b) under the Securities Act after the date and time that this Agreement is executed (the “Execution Time”) by the parties hereto.The term “Preliminary Prospectus” shall mean any preliminary prospectus supplement relating to the Notes, together with the Base Prospectus, that is first filed with the Commission pursuant to Rule 424(b) under the Securities Act.Any reference herein to the Registration Statement, the Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents that are or are deemed to be incorporated by reference therein pursuant to Item 12 of FormS-3 under the Securities Act prior to 2:20 p.m. on March 12, 2012 (the “Initial Sale Time”).All references in this Agreement to the Registration Statement, the Rule 462(b) Registration Statement, the Preliminary Prospectus, the Prospectus, or any amendments or supplements to any of the foregoing, shall include any copy thereof filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System (“EDGAR”). All references in this Agreement to financial statements and schedules and other information which is “contained,” “included” or “stated” (or other references of like import) in the Registration Statement, the Prospectus or the Preliminary Prospectus shall be deemed to mean and include all such financial statements and schedules and other information which is or is deemed to be incorporated by reference in the Registration Statement, the Prospectus or the Preliminary Prospectus, as the case may be, prior to the Initial Sale Time; and all references in this Agreement to amendments or supplements to the Registration Statement, the Prospectus or the Preliminary Prospectus shall be deemed to include the filing of any document under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (collectively, the “Exchange Act”), which is or is deemed to be incorporated by reference in the Registration Statement, the Prospectus or the Preliminary Prospectus, as the case may be, after the Initial Sale Time. The Company hereby confirms its agreements with the Underwriters as follows: Section 1.Representations and Warranties of the Company. The Company hereby represents, warrants and covenants to each Underwriter as of the date hereof, as of the Initial Sale Time and as of the Closing Date (in each case, a “Representation Date”), as follows: a)Compliance with Registration Requirements. The Company meets the requirements for use of FormS-3 under the Securities Act.The Registration Statement has become effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated or threatened by the Commission, and any request on the part of the Commission for additional information has been complied with.In addition, the Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended, and the rules and regulations promulgated thereunder (the “Trust Indenture Act”). At the respective times the Registration Statement became effective and at each Representation Date, the Registration Statement (i) complied and will comply in all material 3 respects with the requirements of the Securities Act and the Trust Indenture Act, and (ii) did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.At the date of the Prospectus and at the Closing Date, neither the Prospectus nor any amendments or supplements thereto included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.Notwithstanding the foregoing, the representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or any post-effective amendment or the Prospectus or any amendments or supplements thereto made in reliance upon and in conformity with Underwriter Information (as defined in Section 8(a) hereof). The Preliminary Prospectus and the Prospectus, at the time each was filed with the Commission, complied in all material respects with the Securities Act, and the Preliminary Prospectus and the Prospectus delivered to the Underwriters for use in connection with the offering of the Notes will, at the time of such delivery, be identical to any electronically transmitted copies thereof filed with the Commission via EDGAR, except to the extent permitted by Regulation S-T. b)Disclosure Package.The term “Disclosure Package” shall mean (i)the Preliminary Prospectus dated March 12, 2012, (ii)any issuer free writing prospectuses as defined in Rule433 under the Securities Act (each, an “Issuer Free Writing Prospectus”) identified in Exhibit B hereto and (iii)any other free writing prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package.As of the Initial Sale Time, the Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.The preceding sentence does not apply to statements in or omissions from the Disclosure Package based upon and in conformity with Underwriter Information. c)Incorporated Documents.The documents incorporated or deemed to be incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Prospectus (i)at the time they were or hereafter are filed with the Commission, complied or will comply in all material respects with the requirements of the Exchange Act and (ii)when read together with the other information in the Disclosure Package, at the Initial Sale Time, and when read together with the other information in the Prospectus, at the date of the Prospectus and at the Closing Date, did not or will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. d)Company is a Well-Known Seasoned Issuer.(i)At the time of filing the Registration Statement, (ii)at the time of the most recent amendment thereto for the purposes of complying with Section10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section13 or 15(d) of the Exchange Act or form of prospectus), (iii)at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule163(c)under the Securities Act) made any offer relating to the Notes in reliance on the exemption of Rule163 under the Securities Act, 4 and (iv)as of the Execution Time, the Company was and is a “well known seasoned issuer” as defined in Rule405 under the Securities Act.The Registration Statement is an “automatic shelf registration statement,” as defined in Rule405 under the Securities Act, that automatically became effective not more than three years prior to the Execution Time; the Company has not received from the Commission any notice pursuant to Rule401(g)(2) under the Securities Act objecting to use of the automatic shelf registration statement form and the Company has not otherwise ceased to be eligible to use the automatic shelf registration form. e)Company is not an Ineligible Issuer. (i) At the time of filing the Registration Statement and (ii) as of the Execution Time (with such date being used as the determination date for purposes of this clause (ii)), the Company was not and is not an Ineligible Issuer (as defined in Rule 405 under the Securities Act), without taking account of any determination by the Commission pursuant to Rule 405 under the Securities Act that it is not necessary that the Company be considered an Ineligible Issuer. f)Issuer Free Writing Prospectuses.Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times through the completion of the offering of Notes under this Agreement or until any earlier date that the Company notified or notifies the Representatives as described in the next sentence, did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement, the Preliminary Prospectus or the Prospectus.If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement, the Preliminary Prospectus or the Prospectus, the Company has promptly notified or will promptly notify the Representatives and has promptly amended or supplemented or will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict.The foregoing two sentences do not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with Underwriter Information. g)Distribution of Offering Material By the Company.The Company has not distributed and will not distribute, prior to the later of the Closing Date and the completion of the Underwriters’ distribution of the Notes, any offering material in connection with the offering and sale of the Notes other than the Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus reviewed and consented to by the Representatives and included in Exhibit B hereto or the Registration Statement. h)No Applicable Registration or Other Similar Rights.There are no persons with registration or other similar rights to have any equity or debt securities registered for sale under the Registration Statement or included in the offering contemplated by this Agreement, except for such rights as have been duly waived. i)The Underwriting Agreement.This Agreement has been duly authorized, executed and delivered by the Company. j)Authorization of the Indenture.The Indenture has been duly qualified under the Trust Indenture Act.The Indenture has been duly authorized and, prior to the issuance of the 5 Notes at the Closing Date, the Indenture shall have been duly executed and delivered by the Company and, upon such execution and delivery, shall constitute a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles. k)Authorization of the Notes.The Notes to be purchased by the Underwriters from the Company are in the form contemplated by the Indenture, have been duly authorized for issuance and sale pursuant to this Agreement and the Indenture and, at the Closing Date, will have been duly executed by the Company and, when authenticated in the manner provided for in the Indenture and delivered against payment of the purchase price therefor, will constitute valid and binding obligations of the Company, enforceable in accordance with their terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles, and will be entitled to the benefits of the Indenture. l)Description of the Notes and the Indenture.The Notes and the Indenture conform in all material respects to the descriptions thereof contained in the Disclosure Package and the Prospectus. m)Accuracy of Statements in Prospectus.The statements in the Preliminary Prospectus and the Prospectus under the captions “Description of the Notes” and “Certain U.S. Federal Income Tax Consequences to Non-U.S. Holders,” in each case insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present and summarize, in all material respects, the matters referred to therein. n)No Material Adverse Change.Since the respective dates as of which information is given in the Disclosure Package and the Prospectus, there has not been any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, financial position, shareholders’ equity or results of operations of the Company and its subsidiaries considered as one enterprise otherwise than as set forth or contemplated in the Disclosure Package and the Prospectus. o)Independent Accountants.KPMG LLP, who have certified the financial statements of the Company and its subsidiaries and supporting schedules incorporated by reference in the Disclosure Package and the Prospectus, are independent public accountants with respect to the Company as required by the Securities Act and the Exchange Act and are an independent registered public accounting firm with the Public Company Accounting Oversight Board. p)Preparation of the Financial Statements.The financial statements together with the related notes thereto, incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Prospectus present fairly the consolidated financial position of the Company and its subsidiaries as of and at the dates indicated and the results of their operations and cash flows for the periods specified.Such financial statements comply as to form with the accounting 6 requirements of the Securities Act and have been prepared in conformity with generally accepted accounting principles as applied in the United States (“GAAP”) applied on a consistent basis throughout the periods involved, except as may be expressly stated in the related notes thereto.No other financial statements are required to be included in the Registration Statement.The selected financial data and the summary financial information included in the Preliminary Prospectus and the Prospectus present fairly the information shown therein and have been compiled on a basis consistent with that of the audited financial statements included in the Registration Statement, the Preliminary Prospectus and the Prospectus. In addition, if any pro forma financial statements of the Company and its subsidiaries and the related notes thereto are included in the Registration Statement, the Preliminary Prospectus and the Prospectus, such pro forma financial statements and related notes present fairly the information shown therein, have been prepared in accordance with the Commission’s rules and guidelines with respect to pro forma financial statements and have been properly compiled on the bases described therein, and the assumptions used in the preparation thereof are reasonable and the adjustments used therein are appropriate to give effect to the transactions and circumstances referred to therein.The interactive data in eXtensible Business Reporting Language incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Prospectus has been prepared in accordance with the Commission’s rules and guidelines applicable thereto. q)Good Standing of the Company.The Company has been duly organized and is validly existing as a corporation in good standing under the laws of the Commonwealth of Virginia, with corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and the Prospectus; and the Company is duly qualified as a foreign corporation to transact business and is in good standing under the laws of each other jurisdiction in which the conduct of its business or the ownership of its property requires such qualification, except where the failure to be so qualified could not reasonably be expected to have a Material Adverse Effect (as defined in Section 1(s) hereof) or adversely affect its ability to perform its obligations with respect to, or the enforceability of, the Notes or its business or financial condition. r)Capitalization.The Company has an authorized capitalization as set forth in the Disclosure Package and the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable, and all of the issued shares of capital stock of Norfolk Southern Railway Company (“NSR”) owned by the Company have been duly and validly authorized and issued and are fully paid and non-assessable, and (except for directors’ qualifying shares) are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims other than agreements relating to joint venture companies. s)Absence of Defaults and Conflicts.The issue and sale of the Notes and the compliance by the Company with all of the provisions of the Notes, the Indenture and this Agreement and the consummation of the transactions herein contemplated will not conflict with or result in a breach of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Company or NSR pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or NSR is a party or by which the Company or NSR is bound or to which any of the property or assets of the Company 7 or NSR is subject, other than those conflicts, breaches or defaults that would not, individually or in the aggregate, have a material adverse effect on the financial condition, earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”), or violate any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or NSR or any of their properties other than those violations that would not have a Material Adverse Effect, nor will such action result in any violation of the provisions of the Restated Articles of Incorporation or Bylaws of the Company; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Notes or the consummation by the Company of the transactions contemplated hereby, by the Disclosure Package or by the Prospectus, except such as have been obtained or made by the Company and are in full force and effect under the Securities Act, applicable state securities or blue sky laws and from the Financial Industry Regulatory Authority, Inc. (“FINRA”). t)Absence of Proceedings.There are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is subject which is required to be described in the Disclosure Package and the Prospectus under the Securities Act which is not described in the Disclosure Package or the Prospectus; the legal or governmental proceedings not so described are proceedings incidental to the kind of business conducted by the Company and its subsidiaries considered as one enterprise which will not individually or in the aggregate have a Material Adverse Effect; and there is no material contract or other material document of a character which is required to be described in the Disclosure Package and the Prospectus under the Securities Act which are not described in the Disclosure Package or the Prospectus. u)No Conflict with OFAC Laws.Neither the Company nor any of its subsidiaries or, to the knowledge of the Company, any director, officer, agent, employee or affiliate of the Company or any of its subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds, to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC. v)Sarbanes-Oxley Compliance.There is and has been no failure on the part of the Company and any of the Company’s directors or officers, in their capacities as such, to comply with any provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith (the “Sarbanes-Oxley Act”), including Section 402 related to loans and Sections 302 and 906 related to certifications. w)Internal Controls and Procedures.The Company and its subsidiaries maintain effective internal control over financial reporting, as such term is defined in Rule 13a-15(f) under the Exchange Act. The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that (A)transactions are executed in accordance with management’s general or specific authorizations; (B)transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset 8 accountability; (C)access to assets is permitted only in accordance with management’s general or specific authorization; (D)the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences; and (E) the interactive data in eXtensible Business Reporting Language incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Prospectus is prepared in accordance with the Commission’s rules and guidelines applicable thereto. x)No Material Weakness in Internal Controls.Except as disclosed in the Disclosure Package and the Prospectus or in any document incorporated by reference therein, since the end of the Company’s most recent audited fiscal year, there has been (i) no material weakness in the Company’s internal control over financial reporting (whether or not remediated) and (ii) no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting. y)Accuracy of Exhibits.There are no franchises, contracts or documents which are required to be described in the Registration Statement, the Disclosure Package, the Prospectus or the documents incorporated by reference therein or to be filed as exhibits to the Registration Statement which have not been so described and filed as required. z)USA Patriot Act Acknowledgement. The Company acknowledges that in accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company, which information may include the name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients. Any certificate signed by an officer of the Company and delivered to the Representatives or to counsel for the Underwriters shall be deemed to be a representation and warranty by the Company to each Underwriter as to the matters set forth therein. Section 2.Purchase, Sale and Delivery of the Notes. a)The Notes.The Company agrees to issue and sell to the several Underwriters, severally and not jointly, all of the Notes upon the terms herein set forth. On the basis of the representations, warranties and agreements herein contained, and upon the terms but subject to the conditions herein set forth, the Underwriters agree, severally and not jointly, to purchase from the Company the aggregate principal amount of Notes set forth opposite their names on Schedule A at a purchase price of 98.287% of the principal amount of the Notes, payable on the Closing Date. b)The Closing Date.Delivery of certificates for the Notes in global form to be purchased by the Underwriters and payment therefor shall be made at the offices of Sidley Austin LLP, 787 Seventh Avenue, New York, New York 10019(or such other place as may be agreed to by the Company and the Representatives) at 9:00 a.m., New York City time, on March 15, 2012, or such other time and date as the Underwriters and the Company shall mutually agree (the time and date of such closing are called the “Closing Date”). 9 c)Public Offering of the Notes.The Representatives hereby advise the Company that the Underwriters intend to offer for sale to the public, as described in the Disclosure Package and the Prospectus, their respective portions of the Notes as soon after the Execution Time as the Representatives, in their sole judgment, have determined is advisable and practicable. d)Payment for the Notes.Payment for the Notes shall be made at the Closing Date by wire transfer of immediately available funds to the order of the Company.It is understood that the Representatives have been authorized, for their own accounts and for the accounts of the several Underwriters, to accept delivery of and receipt for, and make payment of the purchase price for, the Notes that the Underwriters have agreed to purchase.The Representatives may (but shall not be obligated to) make payment for any Notes to be purchased by any Underwriter whose funds shall not have been received by the Representatives by the Closing Date for the account of such Underwriter, but any such payment shall not relieve such Underwriter from any of its obligations under this Agreement. e)Delivery of the Notes.The Company shall deliver, or cause to be delivered, to the Representatives for the accounts of the several Underwriters certificates for the Notes at the Closing Date, against the irrevocable release of a wire transfer of immediately available funds for the amount of the purchase price therefor.The certificates for the Notes shall be in such denominations and registered in such names and denominations as the Representatives shall have requested at least two full business days prior to the Closing Date and shall be made available for inspection on the business day preceding the Closing Date at a location in New York City, as the Representatives may designate.Time shall be of the essence, and delivery at the time and place specified in this Agreement is a further condition to the obligations of the Underwriters. Section 3.Covenants of the Company. The Company covenants and agrees with each Underwriter as follows: a)Compliance with Securities Regulations and Commission Requests.The Company, subject to Section3(b), will comply with the requirements of Rule430B under the Securities Act, and will promptly notify the Representatives, and confirm the notice in writing, of (i)the effectiveness during the Prospectus Delivery Period (as defined in Section 3(b) hereof) of any post-effective amendment to the Registration Statement or the filing of any supplement or amendment to the Preliminary Prospectus or the Prospectus, (ii)the receipt of any comments from the Commission during the Prospectus Delivery Period, (iii)any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Preliminary Prospectus or the Prospectus or for additional information, and (iv)the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Notes for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes.The Company will promptly effect the filings necessary pursuant to Rule424 under the Securities Act and will take such steps as it deems necessary to ascertain promptly whether the Preliminary Prospectus and the Prospectus transmitted for filing under Rule424 under the Securities Act was received for filing by the Commission and, in the event that it was not, it will promptly file such 10 document.The Company will use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment. b)Filing of Amendments.During such period beginning on the date of this Agreement and ending on the later of the Closing Date or such date as, in the opinion of counsel for the Underwriters, the Prospectus is no longer required by law to be delivered in connection with sales of the Notes by an Underwriter or dealer, including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act (the “Prospectus Delivery Period”), the Company will give the Representatives notice of its intention to file or prepare any amendment to the Registration Statement (including any filing under Rule462(b) under the Securities Act), or any amendment, supplement or revision to the Disclosure Package or the Prospectus, whether pursuant to the Securities Act, the Exchange Act or otherwise, will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file or use any such document to which the Representatives or counsel for the Underwriters shall reasonably object. c)Delivery of Registration Statements.The Company has furnished or will deliver to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and signed copies of all consents and certificates of experts, and will also deliver to the Representatives, without charge, a conformed copy of the Registration Statement as originally filed and of each amendment thereto (without exhibits) for each of the Underwriters.The Registration Statement and each amendment thereto furnished to the Underwriters will be identical to any electronically transmitted copies thereof filed with the Commission via EDGAR, except to the extent permitted by Regulation S-T. d)Delivery of Prospectuses.The Company will deliver to each Underwriter, without charge, as many copies of the Preliminary Prospectus as such Underwriter may reasonably request, and the Company hereby consents to the use of such copies for purposes permitted by the Securities Act.The Company will furnish to each Underwriter, without charge, during the Prospectus Delivery Period, such number of copies of the Prospectus as such Underwriter may reasonably request.The Preliminary Prospectus and the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to any electronically transmitted copies thereof filed with the Commission via EDGAR, except to the extent permitted by Regulation S-T. e)Continued Compliance with Securities Laws.The Company will comply with the Securities Act and the Exchange Act so as to permit the completion of the distribution of the Notes as contemplated in this Agreement and in the Registration Statement, the Disclosure Package and the Prospectus.If at any time during the Prospectus Delivery Period, any event shall occur or condition shall exist as a result of which it is necessary, in the opinion of counsel for the Underwriters or for the Company, to amend the Registration Statement in order that the Registration Statement will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or to amend or supplement the Disclosure Package or the Prospectus in order that the Disclosure Package or the Prospectus, as the case may be, will not include an untrue statement of 11 a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the Initial Sale Time or at the time it is delivered or conveyed to a purchaser, not misleading, or if it shall be necessary, in the opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Disclosure Package or the Prospectus in order to comply with the requirements of any law, the Company will (1)notify the Representatives of any such event, development or condition and (2)promptly prepare and file with the Commission, subject to Section3(b) hereof, such amendment or supplement as may be necessary to correct such statement or omission or to make the Registration Statement, the Disclosure Package or the Prospectus comply with such law, and the Company will furnish to the Underwriters, without charge, such number of copies of such amendment or supplement as the Underwriters may reasonably request. f)Blue Sky Compliance.The Company shall cooperate with the Representatives and counsel for the Underwriters to qualify or register the Notes for sale under (or obtain exemptions from the application of) the state securities or blue sky laws of those jurisdictions designated by the Representatives, shall comply with such laws and shall continue such qualifications, registrations and exemptions in effect so long as required for the distribution of the Notes.The Company shall not be required to qualify to transact business or to take any action that would subject it to general service of process in any such jurisdiction where it is not presently qualified.The Company will advise the Representatives promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Notes for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company shall use its reasonable best efforts to obtain the withdrawal thereof at the earliest possible moment. g)Use of Proceeds.The Company shall apply the net proceeds from the sale of the Notes sold by it in the manner described under the caption “Use of Proceeds” in the Preliminary Prospectus and the Prospectus. h)Depositary.The Company will cooperate with the Underwriters and use its best efforts to permit the Notes to be eligible for clearance and settlement through the facilities of the Depositary. i)Periodic Reporting Obligations.During the Prospectus Delivery Period, the Company shall file, on a timely basis, with the Commission and the New York Stock Exchange (“NYSE”) all reports and documents required to be filed under the Exchange Act. j)Agreement Not to Offer or Sell Additional Securities.During the period commencing on the date hereof and ending on the Closing Date, the Company will not, without the prior written consent of the Representatives (which consent may be withheld at the sole discretion of the Representatives), directly or indirectly, sell, offer, contract or grant any option to sell, pledge, transfer or establish an open “put equivalent position” within the meaning of Rule 16a-1(h) under the Exchange Act, or otherwise dispose of or transfer, or announce the offering of, or file any registration statement under the Securities Act in respect of, any debt securities of the Company substantially similar to the Notes or securities exchangeable for or convertible into 12 debt securities substantially similar to the Notes (other than as contemplated by this Agreement with respect to the Notes). k)Final Term Sheet.The Company will prepare a final term sheet containing only a description of the Notes, in a form approved by the Underwriters and substantially in the form attached as Exhibit C hereto (but including the expected ratings of the Notes), and will file such term sheet pursuant to Rule433(d) under the Securities Act within the time required by such rule (such term sheet, the “Final Term Sheet”).Any such Final Term Sheet is an Issuer Free Writing Prospectus for purposes of this Agreement. l)Permitted Free Writing Prospectuses.The Company represents that it has not made, and agrees that, unless it obtains the prior written consent of the Representatives, it will not make, any offer relating to the Notes that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule405 under the Securities Act) required to be filed by the Company with the Commission or retained by the Company under Rule433 under the Securities Act; provided that the prior written consent of the Representatives shall be deemed to have been given in respect of any Issuer Free Writing Prospectuses included in Exhibit B to this Agreement.Any such free writing prospectus consented to or deemed to be consented to by the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.”The Company agrees that (i)it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and (ii)has complied and will comply, as the case may be, with the requirements of Rules164 and 433 under the Securities Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.The Company consents to the use by any Underwriter of a free writing prospectus that (a)is not an “issuer free writing prospectus” as defined in Rule433 under the Securities Act, and (b)contains only (i)information describing the preliminary terms of the Notes or their offering, (ii) information permitted by Rule 134 under the Securities Act, (iii) information that describes the final terms of the Notes or their offering and that is included in the Final Term Sheet of the Company contemplated in Section3(k) hereof, or (iv) customary pricing terms. m)Registration Statement Renewal Deadline.If immediately prior to the third anniversary (the “Renewal Deadline”) of the initial effective date of the Registration Statement, any of the Notes remain unsold by the Underwriters, the Company will prior to the Renewal Deadline file, if it has not already done so and is eligible to do so, a new automatic shelf registration statement relating to the Notes, in a form satisfactory to the Representatives.If the Company is no longer eligible to file an automatic shelf registration statement, the Company will prior to the Renewal Deadline, if it has not already done so, file a new shelf registration statement relating to the Notes, in a form satisfactory to the Representatives, and will use its reasonable best efforts to cause such registration statement to be declared effective within 60 days after the Renewal Deadline.The Company will take all other action necessary or appropriate to permit the public offering and sale of the Notes to continue as contemplated in the expired registration statement relating to the Notes.References herein to the Registration Statement shall include such new automatic shelf registration statement or such new shelf registration statement, as the case may be. 13 n)Notice of Inability to Use Automatic Shelf Registration Statement Form.If at any time during the Prospectus Delivery Period, the Company receives from the Commission a notice pursuant to Rule401(g)(2) under the Securities Act or otherwise ceases to be eligible to use the automatic shelf registration statement form, the Company will (i)promptly notify the Representatives, (ii)promptly file a new registration statement or post-effective amendment on the proper form relating to the Notes, in a form satisfactory to the Representatives, (iii)use its reasonable best efforts to cause such registration statement of post-effective amendment to be declared effective, and (iv)promptly notify the Representatives of such effectiveness.The Company will take all other action necessary or appropriate to permit the public offering and sale of the Notes to continue as contemplated in the registration statement that was the subject of such notice pursuant to the Rule401(g)(2) under the Securities Act or for which the Company has otherwise become ineligible.References herein to the Registration Statement shall include such new registration statement or post-effective amendment, as the case may be. o)Filing Fees.The Company agrees to pay the required Commission filing fees relating to the Notes within the time required by and in accordance with Rules456(b)(1) and 457(r) under the Securities Act. p)Compliance with Sarbanes-Oxley Act. The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes-Oxley Act, and use its reasonable best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes-Oxley Act. The Representatives, on behalf of the several Underwriters, may, in their sole discretion, waive in writing the performance by the Company of any one or more of the foregoing covenants or extend the time for their performance. Section 4.Payment of Expenses.The Company agrees to pay all costs, fees and expenses incurred in connection with the performance of its obligations hereunder and in connection with the transactions contemplated hereby, including without limitation (i) all expenses incident to the issuance and delivery of the Notes (including all printing and engraving costs), (ii) all necessary issue, transfer and other stamp taxes in connection with the issuance and sale of the Notes, (iii) all fees and expenses of the Company’s counsel, independent public or certified public accountants and other advisors to the Company, (iv) all costs and expenses incurred in connection with the preparation, printing, filing, shipping and distribution of the Registration Statement (including financial statements, exhibits, schedules, consents and certificates of experts), each Issuer Free Writing Prospectus, the Preliminary Prospectus and the Prospectus, and all amendments and supplements thereto, and this Agreement, the Indenture, the DTC Agreement and the Notes, (v) all filing fees, reasonable attorneys’ fees and expenses incurred by the Company or the Underwriters in connection with qualifying or registering (or obtaining exemptions from the qualification or registration of) all or any part of the Notes for offer and sale under the state securities or blue sky laws, and, if requested by the Representatives, preparing a “Blue Sky Survey” or memorandum, and any supplements thereto, advising the Underwriters of such qualifications, registrations and exemptions, (vi) the filing fees incident to, and the reasonable fees and disbursements of counsel for the Underwriters in connection with, the review, if any, by FINRA of the terms of the sale of the Notes, (vii) the fees 14 and expenses incurred in connection with the listing of the Notes on the New York Stock Exchange, (viii) the fees and expenses of the Trustee, including the reasonable fees and disbursements of counsel for the Trustee in connection with the Indenture and the Notes, (ix) any fees payable in connection with the rating of the Notes with the ratings agencies, (x) all fees and expenses (including reasonable fees and expenses of counsel) of the Company in connection with approval of the Notes by the Depositary for “book-entry” transfer, (xi) all other fees, costs and expenses referred to in Item 14 of Part II of the Registration Statement, and (xii) all other fees, costs and expenses incurred in connection with the performance of its obligations hereunder for which provision is not otherwise made in this Section 4.Except as provided in this Section 4 and Sections 6, 8 and 9 hereof, the Underwriters shall pay their own expenses, including the fees and disbursements of their counsel. Section 5.Conditions of the Obligations of the Underwriters.The obligations of the several Underwriters to purchase and pay for the Notes as provided herein on the Closing Date shall be subject to the accuracy of the representations and warranties on the part of the Company set forth in Section 1 hereof as of the date hereof, as of the Initial Sale Time, and as of the Closing Date as though then made and to the timely performance by the Company of its covenants and other obligations hereunder, and to each of the following additional conditions: a)Effectiveness of Registration Statement.The Registration Statement shall have become effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act and no proceedings for that purpose shall have been instituted or be pending or threatened by the Commission, any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel for the Underwriters and the Company shall not have received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to use of the automatic shelf registration statement form.The Preliminary Prospectus and the Prospectus shall have been filed with the Commission in accordance with Rule424(b) (or any required post-effective amendment providing such information shall have been filed and declared effective in accordance with the requirements of Rule430A under the Securities Act). b)Accountants’ Comfort Letter.On the date hereof, the Representatives shall have received from KPMG LLP, independent registered public accountants for the Company, a letter dated the date hereof addressed to the Underwriters, in form and substance satisfactory to the Representatives with respect to the audited and unaudited financial statements and certain financial information contained in the Registration Statement, the Preliminary Prospectus and the Prospectus. c)Bring-down Comfort Letter.On the Closing Date, the Representatives shall have received from KPMG LLP, independent public or certified public accountants for the Company, a letter dated such date, in form and substance satisfactory to the Representatives, to the effect that they reaffirm the statements made in the letter furnished by them pursuant to subsection (b) of this Section 5, except that the specified date referred to therein for the carrying out of procedures shall be no more than three business days prior to the Closing Date. d)No Material Adverse Change or Ratings Agency Change.For the period from and after the date of this Agreement and prior to the Closing Date: 15 (i)in the judgment of the Representatives there shall not have occurred any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, financial position, shareholders’ equity or results of operations of the Company and its subsidiaries considered as one enterprise otherwise than as set forth or contemplated in the Disclosure Package and the Prospectus; (ii)there shall not have been any change or decrease specified in the letter or letters referred to in subsection (b) of this Section 5 which is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Notes as contemplated by the Prospectus; and (iii)there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization” as such term is defined in Section 3(a)(62) of the Exchange Act. e)Opinions of Counsel for the Company.On the Closing Date, the Representatives shall have received the favorable opinion of William A. Galanko, Esq., Vice President – Law of the Company, dated as of such Closing Date, the form of which is attached as Exhibit A-1, and the opinions of Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the Company, the forms of which are attached as Exhibit A-2. f)Opinion of Counsel for the Underwriters.On the Closing Date, the Representatives shall have received the favorable opinion of Sidley Austin LLP, counsel for the Underwriters, dated as of such Closing Date, with respect to such matters as may be reasonably requested by the Underwriters. g)Officers’ Certificate.On the Closing Date, the Representatives shall have received a written certificate executed by the Chairman of the Board or the Chief Executive Officer or an Executive Vice President of the Company and the Chief Financial Officer or Chief Accounting Officer of the Company, dated as of such Closing Date, to the effect that: (i)the Company has received no stop order suspending the effectiveness of the Registration Statement, and no proceedings for such purpose have been instituted or threatened by the Commission; (ii)the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to use of the automatic shelf registration statement form; (iii)the representations, warranties and covenants of the Company set forth in Section 1 of this Agreement are true and correct with the same force and effect as though expressly made on and as of such Closing Date; and 16 (iv)the Company has complied with all the agreements hereunder and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such Closing Date. h)Additional Documents.On or before the Closing Date, the Representatives and counsel for the Underwriters shall have received such information, documents and opinions as they may reasonably require for the purposes of enabling them to pass upon the issuance and sale of the Notes as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein contained. If any condition specified in this Section 5 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Representatives by notice to the Company at any time on or prior to the Closing Date, which termination shall be without liability on the part of any party to any other party, except that Sections 4, 6, 8, 9 and 17 shall at all times be effective and shall survive such termination. Section 6.Reimbursement of Underwriters’ Expenses.If this Agreement is terminated by the Representatives pursuant to Section 5, 10 or 11, or if the sale to the Underwriters of the Notes on the Closing Date is not consummated because of any refusal, inability or failure on the part of the Company to perform any agreement herein or to comply with any provision hereof, the Company agrees to reimburse the Representatives and the other Underwriters (or such Underwriters as have terminated this Agreement with respect to themselves), severally, upon demand for all out-of-pocket expenses that shall have been reasonably incurred by the Representatives and the Underwriters in connection with the proposed purchase and the offering and sale of the Notes, including but not limited to fees and disbursements of counsel, printing expenses, travel expenses, postage, facsimile and telephone charges. Section 7.Effectiveness of this Agreement.This Agreement shall not become effective until the execution of this Agreement by the parties hereto. Section 8.Indemnification. (a)Indemnification of the Underwriters.The Company agrees to indemnify and hold harmless each Underwriter, its directors, officers, employees and agents, and each person, if any, who controls any Underwriter within the meaning of the Securities Act and the Exchange Act against any loss, claim, damage, liability or expense, as incurred, to which such Underwriter or such director, officer, employee, agent or controlling person may become subject, under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, or at common law or otherwise (including in settlement of any litigation, if such settlement is effected with the written consent of the Company), insofar as such loss, claim, damage, liability or expense (or actions in respect thereof as contemplated below) arises out of or is based (i) upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendment thereto, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading; or (ii) upon any untrue statement or alleged untrue statement of a material fact contained in any Issuer Free Writing Prospectus, the Preliminary Prospectus or the Prospectus 17 (or any amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and to reimburse each Underwriter and each such director, officer, employee, agent and controlling person for any and all expenses (including the reasonable fees and disbursements of counsel chosen by the Representatives) as such expenses are reasonably incurred by such Underwriter or such director, officer, employee, agent or controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action; provided, however, that the foregoing indemnity agreement shall not apply to any loss, claim, damage, liability or expense to the extent, but only to the extent, arising out of or based upon any untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity with Underwriter Information. The indemnity agreement set forth in this Section 8(a) shall be in addition to any liabilities that the Company may otherwise have. The term “Underwriter Information” shall mean written information furnished to the Company by any Underwriter through the Representatives expressly for use in the Registration Statement, any Issuer Free Writing Prospectus, the Preliminary Prospectus and/or the Prospectus (or any amendment or supplement thereto).The Company hereby acknowledges that Underwriter Information shall consist only of the statements set forth in the sixth and seven paragraphs under the caption “Underwriting” in the Preliminary Prospectus and the Prospectus. (b)Indemnification of the Company, its Directors and Officers.Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, each of its directors, each of its officers who signed the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act or the Exchange Act, against any loss, claim, damage, liability or expense, as incurred, to which the Company or any such director, officer or controlling person may become subject, under the Securities Act, the Exchange Act, or other federal or state statutory law or regulation, or at common law or otherwise (including in settlement of any litigation, if such settlement is effected with the written consent of such Underwriter), insofar as such loss, claim, damage, liability or expense (or actions in respect thereof as contemplated below) arises out of or is based (i) upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendment thereto, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading; or (ii) upon any untrue statement or alleged untrue statement of a material fact contained in any Issuer Free Writing Prospectus, the Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with Underwriter Information; and to reimburse the Company, or any such director, officer or controlling person for any legal and other expense reasonably incurred by the Company, or any such director, officer or controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action.The indemnity agreement set forth in this Section 8(b) shall be in addition to any liabilities that each Underwriter may otherwise have. 18 (c)Notifications and Other Indemnification Procedures.Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against an indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof, but the omission so to notify the indemnifying party will not relieve it from any liability which it may have to any indemnified party for contribution or otherwise than under the indemnity agreement contained in this Section 8 or to the extent it is not prejudiced as a proximate result of such failure.In case any such action is brought against any indemnified party and such indemnified party seeks or intends to seek indemnity from an indemnifying party, the indemnifying party will be entitled to participate in, and, to the extent that it shall elect, jointly with all other indemnifying parties similarly notified, by written notice delivered to the indemnified party, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party; provided, however, such indemnified party shall have the right to employ its own counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such indemnified party, unless: (i) the employment of such counsel has been specifically authorized in writing by the indemnifying party; (ii) the indemnifying party has failed promptly to assume the defense and employ counsel reasonably satisfactory to the indemnified party; or (iii) the named parties to any such action (including any impleaded parties) include both such indemnified party and the indemnifying party or any affiliate of the indemnifying party, and such indemnified party shall have reasonably concluded that either (x) there may be one or more legal defenses available to it which are different from or additional to those available to the indemnifying party or such affiliate of the indemnifying party or (y) a conflict may exist between such indemnified party and the indemnifying party or such affiliate of the indemnifying party (it being understood, however, that the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to a single firm of local counsel) for all such indemnified parties, which firm shall be designated in writing by the Representatives and that all such reasonable fees and expenses shall be reimbursed as they are incurred).Upon receipt of notice from the indemnifying party to such indemnified party of such indemnifying party’s election so to assume the defense of such action and approval by the indemnified party of counsel, the indemnifying party will not be liable to such indemnified party under this Section 8 for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof unless the indemnified party shall have employed separate counsel in accordance with the proviso to the next preceding sentence, in which case the reasonable fees and expenses of counsel shall be at the expense of the indemnifying party. (d)Settlements.The indemnifying party under this Section 8 shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party against any loss, claim, damage, liability or expense by reason of such settlement or judgment.Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by Section 8(c) hereof, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the 19 aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement.No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement, compromise or consent to the entry of judgment in any pending or threatened action, suit or proceeding in respect of which any indemnified party is or could have been a party and indemnity was or could have been sought hereunder by such indemnified party, unless such settlement, compromise or consent (i) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such action, suit or proceeding and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party. Section 9.Contribution.If the indemnification provided for in Section 8 is for any reason held to be unavailable to or otherwise insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount paid or payable by such indemnified party, as incurred, as a result of any losses, claims, damages, liabilities or expenses referred to therein (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, on the one hand, and the Underwriters, on the other hand, from the offering of the Notes pursuant to this Agreement or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company, on the one hand, and the Underwriters, on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations.The relative benefits received by the Company, on the one hand, and the Underwriters, on the other hand, in connection with the offering of the Notes pursuant to this Agreement shall be deemed to be in the same respective proportions as the total net proceeds from the offering of the Notes pursuant to this Agreement (before deducting expenses) received by the Company, and the total underwriting discount received by the Underwriters, in each case as set forth on the front cover page of the Prospectus bear to the aggregate initial public offering price of the Notes as set forth on such cover.The relative fault of the Company, on the one hand, and the Underwriters, on the other hand, shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company, on the one hand, or the Underwriters, on the other hand, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 8(c), any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 9 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in this Section 9. 20 Notwithstanding the provisions of this Section 9, no Underwriter shall be required to contribute any amount in excess of the underwriting commissions received by such Underwriter in connection with the Notes underwritten by it and distributed to the public.No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.The Underwriters’ obligations to contribute pursuant to this Section 9 are several, and not joint, in proportion to their respective underwriting commitments as set forth opposite their names in Schedule A.For purposes of this Section 9, each director, officer, employee and agent of an Underwriter and each person, if any, who controls an Underwriter within the meaning of the Securities Act and the Exchange Act shall have the same rights to contribution as such Underwriter, and each director of the Company, each officer of the Company who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of the Securities Act and the Exchange Act shall have the same rights to contribution as the Company. Section 10.Default of One or More of the Several Underwriters.If, on the Closing Date, any one or more of the several Underwriters shall fail or refuse to purchase Notes that it or they have agreed to purchase hereunder on such date, and the aggregate principal amount of Notes which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase does not exceed 10% of the aggregate principal amount of the Notes to be purchased on such date, the other Underwriters shall be obligated, severally, in the proportion to the aggregate principal amounts of such Notes set forth opposite their respective names on Schedule A bears to the aggregate principal amount of such Notes set forth opposite the names of all such non-defaulting Underwriters, or in such other proportions as may be specified by the Representatives with the consent of the non-defaulting Underwriters, to purchase such Notes which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such date. If, on the Closing Date, any one of the Underwriters shall fail or refuse to purchase such Notes and the aggregate principal amount of such Notes with respect to which such default occurs exceeds 10% of the aggregate principal amount of Notes to be purchased on such date and arrangements satisfactory to the Representatives and the Company for the purchase of such Notes are not made within 48 hours after such default, this Agreement shall terminate without liability of any party to any other party except that the provisions of Sections 4, 6, 8, 9 and 17 shall at all times be effective and shall survive such termination.In any such case, either the Representatives or the Company shall have the right to postpone the Closing Date, but in no event for longer than seven days in order that the required changes, if any, to the Registration Statement, any Issuer Free Writing Prospectus, the Preliminary Prospectus or the Prospectus or any other documents or arrangements may be effected. As used in this Agreement, the term “Underwriter” shall be deemed to include any person substituted for a defaulting Underwriter under this Section 10.Any action taken under this Section 10 shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement. Section 11.Termination of this Agreement.Prior to the Closing Date, this Agreement may be terminated by the Representatives by notice given to the Company if at any time (i) trading or quotation in any of the Company’s securities shall have been suspended or limited by the Commission or the NYSE, or trading in securities generally on either the Nasdaq Stock 21 Market or the NYSE shall have been suspended or limited, or minimum or maximum prices shall have been generally established on any of such stock exchanges by the Commission or FINRA; (ii) a general banking moratorium shall have been declared by any of federal or New York authorities; (iii) there shall have occurred any outbreak or escalation of national or international hostilities or any crisis or calamity involving the United States, or any change in the United States or international financial markets, or any substantial change or development involving a prospective substantial change in United States’ or international political, financial or economic conditions, as in the judgment of the Representatives is material and adverse and makes it impracticable or inadvisable to market the Notes in the manner and on the terms described in the Disclosure Package or the Prospectus or to enforce contracts for the sale of securities; (iv) in the judgment of the Representatives there shall have occurred any material adverse change; or (v) there shall have occurred a material disruption in commercial banking or securities settlement or clearance services. Any termination pursuant to this Section 11 shall be without liability of any party to any other party except as provided in Sections4 and 6 hereof, and provided further that Sections 4, 6, 8, 9 and 17 shall survive such termination and remain in full force and effect. Section 12.No Fiduciary Duty.The Company acknowledges and agrees that:(i)the purchase and sale of the Notes pursuant to this Agreement, including the determination of the public offering price of the Notes and any related discounts and commissions, is an arm’s-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other hand, and the Company is capable of evaluating and understanding and understands and accepts the terms, risks and conditions of the transactions contemplated by this Agreement; (ii)in connection with each transaction contemplated hereby and the process leading to such transaction each Underwriter is and has been acting solely as a principal and is not the financial advisor, agent or fiduciary of the Company or its affiliates, stockholders, creditors or employees or any other party; (iii)no Underwriter has assumed or will assume an advisory, agency or fiduciary responsibility in favor of the Company with respect to any of the transactions contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) and no Underwriter has any obligation to the Company with respect to the offering contemplated hereby except the obligations expressly set forth in this Agreement; (iv)the several Underwriters and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Company and that the several Underwriters have no obligation to disclose any of such interests by virtue of any advisory, agency or fiduciary relationship; and (v)the several Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to the offering contemplated hereby and the Company has consulted its own legal, accounting, regulatory and tax advisors to the extent it deemed appropriate. This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the several Underwriters with respect to the subject matter hereof.The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the several Underwriters with respect to any breach or alleged breach of agency or fiduciary duty in conjunction with any of the transactions contemplated hereby or the process leading thereto. Section 13.Representations and Indemnities to Survive Delivery.The respective indemnities, agreements, representations, warranties and other statements of the Company, of its 22 officers and of the several Underwriters set forth in or made pursuant to this Agreement (i) will remain operative and in full force and effect, regardless of any (A) investigation, or statement as to the results thereof, made by or on behalf of any Underwriter, the officers or employees of any Underwriter, or any person controlling the Underwriter, the Company, the officers or employees of the Company, or any person controlling the Company, as the case may be or (B) acceptance of the Notes and payment for them hereunder and (ii) will survive delivery of and payment for the Notes sold hereunder and any termination of this Agreement. Section 14.Notices.All communications hereunder shall be in writing and shall be mailed, hand delivered or telecopied and confirmed to the parties hereto as follows: If to the Representatives: J.P. Morgan Securities LLC 383 Madison Avenue New York, New York10179 Telephone: 212-834-4533 Facsimile:212-834-6081 Attention:High Grade Syndicate Desk Merrill Lynch, Pierce, Fenner & Smith Incorporated 50 Rockefeller Plaza NY1-050-12-01 New York, New York10020 Facsimile:646-855-5958 Attention:High Grade Transaction Management/Legal Morgan Stanley & Co. LLC 1585 Broadway New York, New York 10036 Facsimile:212-507-8999 Attention:Investment Banking Division with a copy to: Sidley Austin LLP 787 Seventh Avenue New York, New York 10019 Facsimile: 212-839-5599 Attention:Craig E. Chapman If to the Company: Norfolk Southern Corporation 3 Commercial Place 23 Norfolk, Virginia 23510 Facsimile:757-823-5814 Attention:William A. Galanko with a copy to: Skadden, Arps, Slate Meagher & Flom LLP 4 Times Square New York, New York 10036 Facsimile:917-777-3574 Attention:David J. Goldschmidt Any party hereto may change the address for receipt of communications by giving written notice to the others. Section 15.Successors.This Agreement will inure to the benefit of and be binding upon the parties hereto, including any substitute Underwriters pursuant to Section 10 hereof, and to the benefit of the directors, officers, employees, agents and controlling persons referred to in Sections 8 and 9, and in each case their respective successors, and no other person will have any right or obligation hereunder.The term “successors” shall not include any purchaser of the Notes as such from any of the Underwriters merely by reason of such purchase. Section 16.Partial Unenforceability.The invalidity or unenforceability of any section, paragraph or provision of this Agreement shall not affect the validity or enforceability of any other section, paragraph or provision hereof.If any section, paragraph or provision of this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such minor changes (and only such minor changes) as are necessary to make it valid and enforceable. Section 17.Governing Law Provisions.THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THAT STATE. Section 18.General Provisions.This Agreement may be executed in two or more counterparts, each one of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.This Agreement may not be amended or modified unless in writing by all of the parties hereto, and no condition herein (express or implied) may be waived unless waived in writing by each party whom the condition is meant to benefit.The section headings herein are for the convenience of the parties only and shall not affect the construction or interpretation of this Agreement. Each of the parties hereto acknowledges that it is a sophisticated business person who was adequately represented by counsel during negotiations regarding the provisions hereof, including, without limitation, the indemnification provisions of Section 8 and the contribution provisions of Section 9, and is fully informed regarding said provisions.Each of the parties hereto further acknowledges that the provisions of Sections 8 and 9 hereto fairly allocate the 24 risks in light of the ability of the parties to investigate the Company, its affairs and its business in order to assure that adequate disclosure has been made in the Registration Statement, the Disclosure Package and the Prospectus (and any amendments and supplements thereto), as required by the Securities Act and the Exchange Act. 25 If the foregoing is in accordance with your understanding of our agreement, kindly sign and return to the Company the enclosed copies hereof, whereupon this instrument, along with all counterparts hereof, shall become a binding agreement in accordance with its terms. Very truly yours, NORFOLK SOUTHERN CORPORATION By: /s/ Marta R. Stewart Name: Marta R. Stewart Title: Vice President and Treasurer [Signature Page to the Underwriting Agreement] The foregoing Underwriting Agreement is hereby confirmed and accepted by the Representatives as of the date first above written. J.P. MORGAN SECURITIES LLC By: /s/ Robert Bottamedi Name: Robert Bottamedi Title: Vice President MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED By: /s/ Shawn Capeda Name: Shawn Capeda Title: Managing Director MORGAN STANLEY & CO. LLC By: /s/ Yurij Slyz Name: Yurij Slyz Title: Executive Director Acting as Representatives of the several Underwriters named in the attached Schedule A. [Signature Page to the Underwriting Agreement] SCHEDULE A Underwriters Aggregate Principal Amount of Notes to be Purchased J.P. Morgan Securities LLC Merrill Lynch, Pierce, Fenner & Smith Incorporated Morgan Stanley & Co. LLC PNC Capital MarketsLLC SMBC Nikko Capital Markets Limited The Williams Capital Group, L.P. Total Sch -A EXHIBIT A-1 Form of Opinion of William A. Galanko, Vice President – Law of the Company (i)The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the Commonwealth of Virginia and has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which the conduct of its business or the ownership of its property requires such qualification, except where the failure to so qualify or to be in good standing would not result in a Material Adverse Effect. (ii)The Company has all requisite corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and the Prospectus. (iii)The documents incorporated by reference in the Disclosure Package and the Prospectus, when they were filed with the Commission appeared on their face to be appropriately responsive in all material respects to the requirements of the Exchange Act and the rules and regulations thereunder, except that such counsel need express no opinion as to the financial statements, related schedules and other financial data, and such counsel need not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the documents incorporated by reference in the Disclosure Package and the Prospectus. (iv)The execution, delivery and performance by the Company of this Underwriting Agreement, the Indenture and the Notes (collectively, the “Transaction Documents”) have been duly authorized by all requisite corporate action on the part of the Company under the laws of the Commonwealth of Virginia. (v)This Underwriting Agreement has been duly executed and delivered by the Company; and each of the other Transaction Documents, when executed, will have been duly executed and delivered by the Company. (vi)The issuance and sale of the Notes have been duly authorized by the Company, and, when executed, issued and delivered by the Company, authenticated in accordance with the terms of the Indenture (the conditions precedent to which as provided for therein, including, without limitation, Section 2.02 thereof, having been complied with) and paid for by the Underwriters in accordance with the terms of this Underwriting Agreement, the Notes will be valid and binding obligations of the Company enforceable in accordance with their terms and entitled to the benefits of the Indenture, except (a) to the extent that enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other similar laws now or hereafter in effect relating to creditors’ rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity) and (b) that such counsel need express no opinion as to Section 6.12 of the Indenture. (vii)The Indenture, when executed and delivered by the Company and the Trustee (assuming the due authorization, execution and delivery thereof by the Trustee), will be a valid and binding agreement of the Company, enforceable against the Company in accordance with its Exhibit A-1-1 terms, except (a) to the extent that enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other similar laws now or hereafter in effect relating to creditors’ rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity) and (b) that such counsel need express no opinion as to Section 6.12 of the Indenture. (viii)To the best of such counsel’s knowledge: (a) there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which would be required to be described in the Disclosure Package and the Prospectus which are not so described in the Disclosure Package and the Prospectus and (b) no such proceedings are threatened or contemplated by governmental authorities or threatened by others. (ix)Neither the execution and delivery by the Company of the Transaction Documents nor the consummation by the Company of the transactions contemplated thereby, including the issuance and sale of the Notes, conflicts or will conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Company or NSR pursuant to the terms of, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or NSR is a party or by which the Company or NSR is bound or to which any of the property or assets of the Company or NSR is subject, other than those conflicts, breaches or defaults that would not have a Material Adverse Effect, or violate any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or NSR or any of their properties, other than those violations that would not have a Material Adverse Effect, nor will such actions result in any violation of the provisions of the Restated Articles of Incorporation or Bylaws of the Company, except that such counsel need express no opinion with respect to state securities or blue sky laws or the laws of any foreign jurisdiction or with respect to the rights to indemnity and contribution under this Underwriting Agreement. (x)No authorization, approval, consent or order of, and no filing, qualification or registration with, any court or governmental authority is required on the part of the Company for the execution, delivery or performance by the Company of each Transaction Document, including without limitation the issuance and sale of the Notes, other than registration or qualification under state securities or blue sky laws in connection with the offer and sale of the Notes. (xi)The statements set forth in the Disclosure Package and in the Prospectus under the caption “Description of the Notes,” insofar as such statements purport to summarize certain provisions of the laws and documents referred to therein, fairly summarize such provisions in all material respects. (xii)The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, that automatically became effective not more than three years prior to the Execution Time; the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to use of the automatic Exhibit A-1-2 shelf registration statement form and the Company has not otherwise ceased to be eligible to use the automatic shelf registration form. (xiii)The Registration Statement, including without limitation the information required under Rule 430B under the Securities Act (the “Rule 430B Information”), the Prospectus, excluding the documents incorporated by reference therein, and each amendment or supplement to the Registration Statement and the Prospectus, excluding the documents incorporated by reference therein, as of their respective effective or issue dates (including without limitation each deemed effective date with respect to the Underwriters pursuant to Rule 430B(f)(2) under the Securities Act), other than the financial statements and supporting schedules included therein or omitted therefrom, and the Trustee’s Statement of Eligibility on Form T-1 (the “Form T-1”), as to which such counsel need express no opinion, complied as to form in all material respects with the requirements of the Securities Act. Although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Disclosure Package or the Prospectus (except with respect to opinion (xi) above), nothing has come to such counsel’s attention that would lead such counsel to believe that (i) the Registration Statement or any amendment thereto, including the Rule 430B Information (except for financial statements and schedules and other financial data included or incorporated by reference therein or omitted therefrom and the Form T-1, as to which such counsel need make no statement), as of its original effective date and at each deemed effective date with respect to the Underwriters pursuant to Rule 430B(f)(2) under the Securities Act, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Disclosure Package (except for financial statements and schedules and other financial data included or incorporated by reference therein or omitted therefrom, as to which such counsel need make no statement), as of the Initial Sale Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading or (iii) the Prospectus (except for financial statements and schedules and other financial data included or incorporated by reference therein or omitted therefrom, to which such counsel need make no statement), as of the date of the final prospectus supplement included therein and as of the date hereof, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. In rendering the opinion required under this Exhibit A-1, counsel for the Company need not express any opinion concerning the laws of any jurisdiction other than those of the Commonwealth of Virginia and the United States of America, provided that such counsel states that he is aware of no difference between the laws of the Commonwealth of Virginia and the laws of the State of New York which would cause him to believe that his opinion would be inapplicable if it were furnished in connection with the laws of the State of New York.In addition, in rendering the opinion required under this Exhibit A, such counsel may rely as to matters of fact, to the extent such counsel deems it proper, on certificates of responsible officials of the Company and public officials. Exhibit A-1-3 EXHIBIT A-2 Form of Opinions of Skadden, Arps, Slate, Meagher & Flom LLP, Counsel for the Company (i)Each of the Underwriting Agreement, the Indenture and the Notes (collectively, the “Transaction Documents”) has been duly, executed and delivered by all requisite corporate action on the part of the Company to the extent such execution and delivery are matters governed by the laws of the State of New York. (ii)The Indenture constitutes a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms under the laws of the State of New York. (iii)When duly authenticated by the Trustee and issued and delivered by the Company against payment therefor in accordance with the terms of this Underwriting Agreement and the Indenture, the Notes will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with their terms under the laws of the State of New York. (iv)The statements in the Disclosure Package and in the Prospectus under the caption “Description of the Notes,” insofar as such statements purport to summarize certain provisions of the Indenture and the Notes, fairly summarize such provisions in all material respects. (v)The statements in the Disclosure Package and the Prospectus under the caption “Underwriting,” insofar as such statements purport to summarize certain provisions of this Underwriting Agreement, fairly summarize such provisions in all material respects. (vi)Neither the execution and delivery by the Company of the Transaction Documents nor the consummation by the Company of the transactions contemplated thereby, including the issuance and sale of the Notes: (i) violates any law, rule or regulation of the State of New York or the United States of America, or (ii) requires the consent, approval, licensing or authorization of, or any filing, recording or registration with, any governmental authority under any law, rule or regulation of the State of New York or the United States of America except for those consents, approvals, licenses and authorizations already obtained and those filings, recordings and registrations already made. (vii)The Company is not and, solely after giving effect to the offering and sale of the Notes and the application of the proceeds thereof as described in the Prospectus, will not be an “investment company” as such term is defined in the Investment Company Act of 1940, as amended. (viii)Although the discussion set forth in the Preliminary Prospectus and the Prospectus under the caption “Certain U.S. Federal Income Tax Consequences to Non-U.S. Holders” does not purport to discuss all possible United States federal income tax consequences of the acquisition, ownership, and disposition of the Notes to non-U.S. holders, such discussion constitutes, in all material respects, a fair and accurate summary of the United States federal Exhibit A-2-1 income tax consequences of the acquisition, ownership, and disposition of the Notes to non-U.S. holders. In addition, such counsel shall state that, assuming the accuracy of the representations and warranties of the Company set forth in Sections 1(d) and 1(e) of this Underwriting Agreement, the Registration Statement became effective upon filing with the Commission pursuant to Rule 462 under the Securities Act, and, pursuant to Section 309 of the Trust Indenture Act of 1939, the Indenture has been qualified under the Trust Indenture Act of 1939, and such counsel has been orally advised by the Commission that no stop order suspending the effectiveness of the Registration Statement has been issued and, to its knowledge, no proceedings for that purpose have been instituted or are pending or threatened by the Commission. In addition, such counsel shall state that such counsel has participated in conferences with officers and other representatives of the Company, counsel for the Company, representatives of the independent registered public accountants of the Company and representatives of the Underwriters and counsel for the Underwriters at which the contents of the Registration Statement, the Prospectus, the Disclosure Package and related matters were discussed.Such counsel has not participated in the preparation of the Incorporated Documents but have, however, reviewed such documents and discussed the business and affairs of the Company with officers and other representatives of the Company.Such counsel does not pass upon, or assume any responsibility for, the accuracy, completeness or fairness of the statements contained or incorporated by reference in the Registration Statement, the Prospectus or the Disclosure Package and has made no independent check or verification thereof (except to the limited extent referred to in paragraphs (iv), (v) and (viii) above). On the basis of the foregoing, (i) the Registration Statement, at the time of effectiveness of the Registration Statement for purposes of Section 11 of the Securities Act and the Prospectus, as of the date of the Prospectus Supplement, appeared on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the General Rules and Regulations under the Securities Act (except that in each case such counsel need not express any view as to the financial statements, schedules and other financial information included or incorporated by reference therein or excluded therefrom or the Statement of Eligibility on Form T-1 (the “Form T-1”)) and (ii) no facts have come to such counsel’s attention that have caused it to believe that the Registration Statement, at the time of effectiveness of the Registration Statement for purposes of Section 11 of the Securities Act, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of the date of the Prospectus Supplement and as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (except that in each case such counsel need not express any view as to the financial statements, schedules and other financial information included or incorporated by reference therein or excluded therefrom, the report of management’s assessment of the effectiveness of internal controls over financial reporting or the auditors’ attestation report thereon, or the statements contained in the exhibits to the Registration Statement, including the Form T-1).In addition, on the basis of the foregoing, no facts have come to such counsel’s attention that have caused it to believe that the Disclosure Package, as of the Initial Sale Time, contained an untrue statement of a material fact or omitted to state a material fact necessary in Exhibit A-2-2 order to make the statements therein, in the light of the circumstances under which they were made, not misleading (except that such counsel need not express any view as to the financial statements, schedules and other financial information included or incorporated by reference therein or excluded therefrom, the report of management’s assessment of the effectiveness of internal controls over financial reporting or the auditors’ attestation report thereon, or the statements contained in the exhibits to the Registration Statement, including Form T-1, to the extent included or incorporated by reference therein). Exhibit A-2-3 EXHIBIT B Issuer Free Writing Prospectuses Pricing Term Sheet dated March 12, 2012 Exhibit B-1 EXHIBIT C Pricing Term Sheet Dated as of March 12, 2012 Norfolk Southern Corporation $600,000,000 3.000% Senior Notes due 2022 The following information supplements the Preliminary Prospectus Supplement dated March 12, 2012 (the “Preliminary Prospectus Supplement”), and is filed pursuant to Rule 433, under Registration No. 333-179569. Issuer: Norfolk Southern Corporation Principal Amount: Format: SEC Registered Denominations: $2,000 x $1,000 Trade Date: March 12, 2012 Settlement Date: March 15, 2012 (T+3) Maturity Date: April 1, 2022 Interest Payment Dates: April 1 and October 1, commencing October 1, 2012 Benchmark Treasury: UST 2.000% due February 15, 2022 Benchmark Treasury Price and Yield: 99-25 / 2.024% Spread to Benchmark Treasury: T+110 basis points Yield to Maturity: 3.124% Coupon: 3.000% Public Offering Price: 98.937% Make-Whole Call: Any time at the following redemption price: (i) if the notes are redeemed prior to the date that is three months prior to the Maturity Date, the greater of 100% or the make-whole amount at a discount rate equal to the applicable Treasury Yield (as defined in the Preliminary Prospectus Supplement) plus 20 basis points, and (ii) if the notes are redeemed on or after the date that is three months prior to the Maturity Date, 100%. CUSIP#/ISIN#: 655844 BJ6 / US655844BJ66 Joint Book-Running Managers: J.P. Morgan Securities LLC Merrill Lynch, Pierce, Fenner & Smith Incorporated Morgan Stanley & Co. LLC Co-Managers: PNC Capital MarketsLLC SMBC Nikko Capital Markets Limited The Williams Capital Group, L.P. Exhibit C-1 The issuer has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (the “SEC”) for the offering to which this communication relates.Before you invest, you should read the prospectus in that registration statement and the related preliminary prospectus supplement and other documents the issuer has filed with the SEC for more complete information about the issuer and this offering.You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov.Alternatively, the representatives of the underwriters can arrange to send you the prospectus and related preliminary prospectus supplement if you request it by calling J.P. Morgan Securities LLC at 1-212-834-4533 (collect), Merrill Lynch, Pierce, Fenner & Smith Incorporated at 1-800-294-1322 or Morgan Stanley & Co. LLC at 1-866-718-1649. This information does not purport to be a complete description of these securities or the offering.Please refer to the preliminary prospectus supplement for a complete description of the securities. This communication does not constitute an offer to sell or the solicitation of an offer to buy any securities in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation in such jurisdiction. Exhibit C-2
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Exhibit 10.1
March 19, 2008
Dear Eric:
Congratulations! Please accept our offer to become part of EA’s rich game making
history and future.
I am pleased to offer you a regular full-time position with Electronic Arts as
Chief Financial Officer commencing on a mutually agreed upon start date at a
base salary of $50,000.00 per month, or $600,000.00 annualized, minus applicable
deductions. You will be reporting to me, John Riccitiello.
introduction to life at EA, including an overview of our benefits programs and
EA’s Global Code of Conduct. Other EA policies and procedures are on EA’s
intranet and will be reviewed with you at orientation.
You will also be eligible to participate in our discretionary bonus program.
This discretionary bonus is typically determined at the end of our fiscal year
(March) and is prorated for your months of employment. You need to be employed
by EA by January 15th to be eligible for a bonus in this fiscal year. Your
discretionary bonus target will be 75% of your salary. To receive payment of
your bonus you must be employed by Electronic Arts at the time any bonuses are
paid. In addition, EA reviews performance and compensation levels annually, and
it currently makes merit adjustments in June of each year. To be eligible for a
merit increase at next June’s review, you must commence employment by
January 15th of the same calendar year.
I will recommend to the Compensation Committee that you be granted a
non-qualified stock option to purchase 250,000 shares of Electronic Arts common
stock in accordance with our 2000 Equity Incentive Plan. The Committee will
grant and price the stock option on the next regularly scheduled grant date
after you commence employment (i.e., the 16th of the month following your
commencement of employment, or the first NASDAQ trading day thereafter). The
options shall vest and become exercisable as to 24% of the shares on the first
day of the calendar month that includes the one-year anniversary of the grant
date, and will then vest and become exercisable as to an additional 2% of the
shares on the first calendar day of each month thereafter for 38 months. You
will receive more details regarding this stock option from Stock Administration
I will recommend to the Compensation Committee that you be granted a one-time
Ownership Award in the form of 83,300 restricted stock units (RSUs) in
accordance with our 2000 Equity Incentive Plan. The Committee will grant the
RSUs on the next regularly scheduled grant date after you commence employment
(i.e., the 16th of the month following your commencement of employment, or the
first NASDAQ trading day thereafter). This Award will vest in 25% increments
annually on each of the first, second, third and fourth anniversaries of the
original grant date. You will receive more details regarding this Award from
Stock Administration after the grant date.
You are being provided Tier 5 executive relocation assistance, as described in
the attached relocation summary document. Per EA policy, if you voluntarily
leave your employment with EA or are terminated for any reason other than a
reduction in force that eliminates your job position (a) prior to the one year
anniversary of the date of your hire, you agree to pay EA an amount equal to all
relocation and gross up expenses incurred by EA through your date of
termination; or (b) on or after the one year anniversary of the date of your
hire and prior to the second anniversary of the date of your hire, you agree to
pay EA an amount equal to a pro-rata portion (24 minus number of full months of
employment / 24 months) of all relocation and gross up expenses incurred by EA
through your date of termination. Payment must be made to EA upon your last day
of employment. Once you accept this offer of employment with EA, please contact
EA’s Global Mobility Group, at 650-628-9100, to start the process.
Lastly, EA is providing you a one-time bonus of $100,000.00 (minus applicable
taxes) at the time of hire, which is earned at the completion of your first year
of employment but you will receive it within the first 30 days of
your employment. If you voluntarily leave your employment before the completion
of one year, you agree to repay to EA the full net amount of the bonus.
If you have any questions about this offer or about your eligibility to
participate in or to be covered by any of the described benefits, please call
me.
In the course of your work, you will have access to proprietary materials and
concepts. Our offer is contingent on your signing Electronic Arts’ New Hire/
Proprietary Information Agreement. Two copies are enclosed for signature (please
keep one for your own records).
This offer letter contains the entire understanding between you and Electronic
Arts as to the terms of your offer of employment and specifically supersedes all
previous discussions you may have had with anyone at Electronic Arts regarding
those terms.
Should you accept this offer, please plan on attending New Hire Orientation to
be held on your first Monday at 9:00 a.m. Please complete and bring the forms in
the attached package.
This offer of employment is made contingent upon your providing Electronic Arts
with proof that you have the legal right to work in the United States. This will
be handled as part of your orientation process.
In addition, EA will conduct a background check pursuant to a written notice you
will receive under separate cover, and this offer of employment is contingent
upon the results of such check being acceptable to EA.
This offer of employment is valid through March 28, 2008, and if not accepted by
then, we will assume that you have declined the offer. If you accept this offer,
please sign below and return both pages of the original offer letter to
Gabrielle Toledano in the enclosed envelope, and we can begin your orientation
to EA. Please keep a copy for yourself.
Please join our team and help us be the place where GREAT people create and
deliver GREAT games.
Sincerely, /s/ John Riccitiello
John Riccitiello
Chief Executive Officer
Electronic Arts
Enclosures
Accepted by candidate: Date: /s/ Eric F. Brown March 19, 2008
Anticipated Start Date: April 14, 2008
ERIC BROWN
Employee Relocation Summary
Relocation benefits, including tax assistance, as follows:
House Hunting Trip
Up to two house hunting trips, where reasonable and customary costs for
airfare, hotel, and rental car reimbursed (10 days total).
Final Move
Reimbursement for mileage per IRS guidelines or one way airfare based on EA
travel guidelines. Reasonable lodging costs will be reimbursed when driving.
Actual and reasonable reimbursement for receipted transportation to the airport
will be provided.
Travel to the former
location
If employee is required to move to the new location in advance of the pack
and load date, one airline ticket or mileage reimbursement will be provided for
the employee within the first 60 days of temporary living.
Transportation of
Household Goods
Designated professional moving company will pack, load, deliver and unpack
your household goods with insurance coverage of $100K.
Storage of
Household Goods
Up to 6 months of storage.
Shipment of
Automobiles
Two cars shipped by auto transporter. Value of the vehicle must exceed the
cost of transportation of the vehicles. Cars must be in operating condition.
Pet Shipment
Reimbursement of up to $200/pet for actual direct shipment expenses for up to
2 pets.
Temporary Housing
Up to 6 months of temporary housing.
Rental Car
One midsized rental car will be reimbursed for up to 14 days or until shipped
auto arrives, whichever is sooner. Short term rental vehicles are insured under
the company’s insurance policies.
Home Sale
Assistance
Market Value Purchase Program. Additional details to follow.
Home Purchase
Assistance
Up to $24K of reimbursement for non-recurring closing costs and loan
origination fees.
Tax Treatment of
Relocation
Expenses
Gross up of taxable reimbursements and standard deduction for federal taxes.
Tax true up at year end.
Miscellaneous
Moving Allowance
One month’s base salary (net). No receipts required.
ERIC BROWN
Employee Relocation Summary
Repayment
Clause
If you voluntarily leave your employment with EA or are terminated for any
reason other than a reduction in force that eliminates your job position (a)
prior to the one year anniversary of the date of your hire, you agree to pay EA
an amount equal to all relocation and gross up expenses incurred by EA through
your date of termination; or (b) on or after the one year anniversary of the
date of your hire, you agree to pay EA an amount equal to a pro-rata portion
(full months of employment/24 months) of all relocation and gross up expenses
incurred by EA through your date of termination. Payment must be made to EA upon
your last day of employment. |
Exhibit 10.1
This Third Amendment (the “Third Amendment”) executed on July 15, 2011 and is
made and effective as of June 30, 2011 (the “Third Amendment Effective Date”)
and amends the Collaboration and License Agreement dated as of December 23, 2008
(as previously amended), between SYNTA PHARMACEUTICALS CORP., a Delaware
corporation having a principal office at 45 Hartwell Avenue, Lexington, MA
02421, U.S.A. (“SYNTA”), and F. HOFFMANN-LA ROCHE LTD, a Swiss corporation
having a principal office located at Grenzacherstrasse 124, CH-4070 Basel,
Switzerland (“ROCHE BASEL”) and HOFFMANN-LA ROCHE INC., a New Jersey corporation
having a principal office at 340 Kingsland Street, Nutley, New Jersey 07110,
U.S.A. (“ROCHE NUTLEY”; ROCHE BASEL and ROCHE NUTLEY together referred to as
“ROCHE”) (the “Agreement”). Capitalized terms shall have the meaning set forth
in the Agreement.
INTRODUCTION
WHEREAS, SYNTA and ROCHE have reached agreement with respect to ROCHE having the
right to continue Research related to Licensed Compounds; and
WHEREAS, the Parties wish to amend the Agreement, as described herein.
this Third Amendment, the Parties agree:
1. Research License. SYNTA hereby grants to ROCHE for the period
beginning on the Third Amendment Effective Date and continuing for the remainder
of the Term, an exclusive, worldwide, paid-up right and license, without the
right to grant sublicenses (except in accordance with Section 6.4), under the
SYNTA Intellectual Property to enable ROCHE to perform Research relating to
Licensed Compounds. As of the Third Amendment Effective Date, the compounds
identified in Appendix A are deemed to be a complete list of Licensed
Compounds. For clarity this list does not include Licensed Compounds returned
to Synta as part of the Second Amendment executed on January 31, 2011.
2. Effect on Agreement. Except as amended by this Third
Amendment, the Agreement shall remain in full force and effect. After the date
of this Third Amendment, every reference in the Agreement to the “Agreement”
shall mean the Agreement as amended by the Amendment, the First Amendment, the
Second Amendment, and this Third Amendment.
Secretary of the Commission pursuant to Synta Pharmaceuticals Corp.’s
application requesting confidential treatment under Rule 24b-2 of the Securities
1
Amendment Execution Date.
SYNTA PHARMACEUTICALS CORP.
By:
Name:
Keith Ehrlich
Title:
CFO
By:
By:
/s/ Melanie Frey Wick
Name:
Christophe Carissimo
Name:
Dr. Melanie Frey Wick
Title:
Global Licensing Director
Title:
Vice Director
By:
Name:
Joseph S. McCracken
Title:
Vice President
2
APPENDIX A
Licensed Compounds
3
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Title: A kid broke my child's glasses at school, but the parent is denying to pay for it.
Question:A kid broke my child's glasses at school. The vice principal is well aware of the situation, since the kid is such a trouble maker who has anger issues. The glasses are valued at $99, so I demanded the outstanding price, but the parent is denying to pay for it.
She is only stating she will pay the "minimum price" which is about $39. Furthermore, she states that her son only broke the frames of the glasses, therefore only should pay the frame's value. This is not true although he did only "damage the frame only", the nose bridge which elevates the glasses from the nose completely disassembled from the glasses. The existing frames can't be fixed and my son's glasses are out modeled, so my optometrist and I decided it is best for my son to get new glasses.
The frame is worth 89$, and the lens is worth $30 (since it's poly-carbonate lens). The optometrist was having a special back to school promotion, so I got $20 off.
The problem is, the principal is now stepping out of this problem suggesting me to contact the police department, and he told me to be careful since the child's mother is "not a typical mother" and that I should just take the $39 since it's better than nothing.
+ I know the police wont do anything since they claim "civil disputes" should be solved in court, and that it is not their job to interfere.
I am in a dirty situation at the moment, and what are some suggestions I should carry out?
Thank you.
Answer #1: What everybody else said. Also keep in mind that typically with damaged or destroyed property you're not entitled to the full replacement value of a brand new version of that item. If you borrow my '98 Toyota Solara and you drive it off a cliff, you (your estate, actually...) doesn't owe me the cost of a brand new 2014 Toyota Solara (though that would be nice). You owe me whatever my '98 Solara was worth on the day you totaled it. Similarly, the child's mom probably doesn't owe you the cost of a brand new pair of glasses. She probably owes you whatever your kid's glasses were worth, depreciation and all, before they were broken. In that sense, $39 might not be such a terrible deal.
Edit: But see /u/Karissa36's response to me above. You may or may not be entitled to the replacement value. Whether that would make small claims worth it, I'm still not so sure.Answer #2: >Furthermore, she states that her son only broke the frames of the glasses, therefore only should pay the frame's value. This is not true although he did only "damage the frame only", the nose bridge which elevates the glasses from the nose completely disassembled from the glasses. The existing frames can't be fixed and my son's glasses are out modeled...
The nose bridge is generally included when they sell you the frames. So are the same frames currently available for purchase or not? If yes, you are only entitled to the cost of the frames. You are not entitled to the cost of updating to a different model, just because the broken frames were out of style.Answer #3: Just move on with your life. Is this really about the cost of the glasses, or your personal pride? |
Exhibit 10.1
THIRD AMENDMENT dated as of June 28, 2004 (this “Amendment”) to the Credit
Agreement dated as of May 20, 2003 (the “Credit Agreement”) among UNITED STATES
STEEL CORPORATION (the “Borrower”), the LENDERS party thereto (the “Lenders”),
the LC ISSUING BANKS party thereto, JPMORGAN CHASE BANK, as Administrative Agent
(the “Administrative Agent”), Collateral Agent, Co-Syndication Agent and
Swingline Lender, and GENERAL ELECTRIC CAPITAL CORPORATION, as Co-Collateral
Agent and Co-Syndication Agent.
SECTION 2. Amendment of Section 6.05. Pursuant to Section 9.02 of the Credit
Agreement, Section 6.05 of the Credit Agreement is amended by replacing clause
“(g) Reserved;” with the following:
(g) sales, transfers and other dispositions of Equity Interests; provided
that the aggregate fair market value of all Equity Interests sold, transferred
or otherwise disposed of in reliance on this clause shall not exceed $15,000,000
during any Fiscal Year;
3 of the Credit Agreement are true on and as of the date hereof and (ii) no
the date hereof when the Administrative Agent shall have received from each of
the Borrower and the Required Lenders a counterpart hereof signed by such party
or facsimile or other written confirmation (in form satisfactory to the
UNITED STATES STEEL CORPORATION
By:
Name:
Title:
Executive Vice President,
JPMORGAN CHASE BANK
By:
/s/ James Ramage
Name:
James Ramage
Title:
Managing Director
GENERAL ELECTRIC CAPITAL CORPORATION
By:
Name:
Timothy Canon
Title:
Its Duly Authorized Signatory
BANK ONE
By:
/s/ Randy Abrams
Name:
Randy Abrams
Title:
Associate Director
By:
Name:
George Louis McKinley
Title:
Vice President
CITIZENS BANK
By:
Name:
Dwayne R. Finney
Title:
Vice President
CONGRESS FINANCIAL CORPORATION (CENTRAL)
By:
/s/ Steven Linderman
Name:
Steven Linderman
Title:
Senior Vice President
GMAC COMMERCIAL FINANCE LLC
By:
/s/ Marline Alexander-Thomas
Name:
Marline Alexander-Thomas
Title:
Vice President
GOLDMAN SACHS CREDIT PARTNERS LP
By:
/s/ Pedro Ramirez
Name:
Pedro Ramirez
Title:
Authorized Signatory
By:
/s/ Robert J. Reichenbach
Name:
Robert J. Reichenbach
Title:
Vice President
Inc.
By:
Name:
Richard Holston
Title:
Vice President
By:
/s/ William E. Welsh, Jr.
Name:
Title:
Senior Associate
By:
/s/ Ernest Fung
Name:
Ernest Fung
Title:
Vice President
THE NORTHERN TRUST COMPANY
By:
/s/ Christopher L. McKean
Name:
Christopher L. McKean
Title:
Vice President
By:
Name:
V. Gibson
Title:
Assistant Agent
By:
Name:
David B. Gookin
Title:
Managing Director
TRANSAMERICA BUSINESS CAPITAL CORPORATION
By:
Name:
Timothy Canon
Title:
Its Duly Authorized Signatory
By:
Name:
Dennis King
Title:
Vice President |
EXHIBIT 10.34 FIFTH AMENDMENT AGREEMENT FIFTH AMENDMENT AGREEMENT (this “Agreement”), dated as of January 14, 2015, by and among Crystal Rock Holdings, Inc., formerly known as Vermont Pure Holdings, Ltd. (“Holdings”), individually and as successor by merger to its former Subsidiary, Crystal Rock Holdings, Inc., Crystal Rock LLC (“Crystal Rock”, and together with Holdings, collectively, the “Borrowers”), Bank of America, N.A. (“Bank of America”) and the other lending institutions party to that certain Credit Agreement (as defined below) as lenders (together with Bank of America, collectively, the “Lenders”), and Bank of America, as administrative agent (the “Administrative Agent”) for itself and the other Lenders with respect to a certain Amended and Restated Credit Agreement dated as of April 5, 2010, as amended by that certain First Amendment Agreement dated as of September 28, 2010, that certain Second Amendment Agreement dated as of May 1, 2012, that certain Third Amendment Agreement dated as of May 13, 2013, and that certain Fourth Amendment Agreement dated as of September 30, 2013 (as amended the “Credit Agreement”). W I T N E S S E T H: WHEREAS, the parties hereto have agreed to amend the Credit Agreement as set forth herein. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: §1.Definitions.Capitalized terms that are used herein and are not defined hereinhave the meanings given to such terms in the Credit Agreement (after giving effect to the amendments thereof set forth herein). §2.Ratification of Existing Agreements.All of the Borrowers’ obligations and liabilities to the Lenders as evidenced by or otherwise arising under the Credit Agreement, the Notes and the other Loan Documents are, by the Borrowers’ execution of this Agreement, hereby ratified and confirmed in all respects.In addition, by the Borrowers’ execution of this Agreement, each Borrower represents and warrants that it does not have any defense, counterclaim, or right of set-off or recoupment of any kind with respect to such obligations and liabilities. §3.Representations and Warranties.Each Borrower hereby represents and warrants to the Lenders that all of the representations and warranties made by the Borrowers in the Credit Agreement, the Notes and the other Loan Documents are true in all material respects on the date hereof as if made on and as of the date hereof, except to the extent that such representations and warranties relate expressly to an earlier date. §4.Conditions Precedent.The effectiveness of this Agreement is subject to the prior satisfaction, on or before January 14, 2015, of each of the following conditions precedent (the date of such satisfaction herein referred to as the “Amendment Effective Date”): (a)Representations and Warranties.All of the representations and warranties made by the Borrowers herein, whether directly or incorporated by reference, shall be true and correct on the date hereof except to the extent that such representations and warranties relate expressly to an earlier date. (b)No Event of Default.No Default or Event of Default. (c)Delivery of Agreement.The parties hereto shall have executed this Agreement and delivered this Agreement to the Administrative Agent. §5.Amendment to the Credit Agreement. (a)The definitions of “Consolidated EBITDA” and “LIBOR Rate” appearing in Section 1.1 of the Credit Agreement is hereby amended and restated in its entirety to read as follows: Consolidated EBITDA.With respect to any Person for any period, an amount equal to Consolidated Net Income of such Person and its Subsidiaries for such fiscal period, plus (a) the following, in each case to the extent deducted in the calculation of such Person’s Consolidated Net Income and without duplication, (i) depreciation and amortization for such period, plus (ii) income tax expense for such period, plus (iii) Consolidated Total Interest Expense of such Person and its Subsidiaries required to be paid or accrued during such period, plus (iv) other noncash charges reducing Consolidated Net Income for such period, all as determined in accordance with GAAP, plus (v) for the relevant Reference Period, severance costs in an aggregate amount not to exceed (A) $378,894 for the Reference Period ending on January 31, 2015, (B) $354,601 for the Reference Period ending on April 30, 2015, (C) $251,594 for the Reference Period ending on July 31, 2015, (D) $121,401 for the Reference Period ending on October 31, 2015, (E) $27,600 for the Reference Period ending on January 31, 2016, and (F) $11,700 for the Reference Period ending on April 30, 2016, less (b) all noncash items increasing Consolidated Net Income for such period. LIBOR Rate.For any Interest Period with respect to a LIBOR Rate Loan, the rate per annum equal to the London Interbank Offered Rate (“LIBOR”), or a comparable or successor rate which rate is approved by the Administrative Agent, as published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) at or about 11:00 a.m., London time, two (2) LIBOR Business Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period, provided that: (i) to the extent a comparable or successor rate is approved by the Administrative Agent in connection herewith, the approved rate shall be applied in a manner consistent with market practice; provided, further that to the extent such market practice is not administratively feasible for the Administrative Agent, such approved rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent and (ii) if the LIBOR Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement. - 2 - §6.Expenses, Etc.The Borrowers agree to pay to the Administrative Agent upon demand an amount equal to any and all out-of-pocket costs or expenses (including reasonable legal fees and disbursements) incurred or sustained by the Administrative Agent in connection with the preparation of this Agreement and related matters. §7.Miscellaneous Provisions. (a)This Agreement shall become effective among the parties hereto as of the Amendment Effective Date.Until the Amendment Effective Date, the terms of the Credit Agreement prior to its amendment hereby shall remain in full force and effect. (b)Except as otherwise expressly provided by this Agreement, all of the respective terms, conditions and provisions of the Credit Agreement, the Notes and the other Loan Documents shall remain the same.The Credit Agreement, as amended hereby, the Notes and the other Loan Documents shall continue in full force and effect, and this Agreement and the Credit Agreement shall be read and construed as one instrument. (c)This Agreement is intended to take effect under, and shall be construed according to and governed by, the laws of the State of New York (excluding the laws applicable to conflicts or choice of law). (d)This Agreement may be executed in any number of counterparts, but all such counterparts shall together constitute but one instrument.In making proof of this Agreement it shall not be necessary to produce or account for more than one counterpart signed by each party hereto by and against which enforcement hereof is sought.A facsimile of an executed counterpart shall have the same effect as the original executed counterpart. [Remainder of page intentionally blank; Signature Pages follow] - 3 - IN WITNESS WHEREOF, each of the parties hereto have caused this Agreement to be executed in its name and behalf by its duly authorized officer as of the date first written above. CRYSTAL ROCK HOLDINGS, INC. By: /s/ Peter K. Baker Name: Peter K. Baker Title: Chief Executive Officer CRYSTAL ROCK LLC By: /s/ Peter K. Baker Name: Peter K. Baker Title: Manager and Chief Executive Officer BANK OF AMERICA, N.A., as Administrative Agent and Lender By: /s/ Donald K. Bates Name: Donald K. Bates Title: Sr. Portfolio Management Officer Signature Page to Fifth Amendment Agreement
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Exhibit 10.2
FIRST AMENDMENT
TO
SECURITIES PURCHASE AGREEMENT
made and entered into this 3rd day of April, 2009, by and between Magellan
WHEREAS, the Company and the Investor are parties to that certain
Securities Purchase Agreement dated as of February 9, 2009 (the “Purchase
Agreement”);
WHEREAS, Section 7.5 of the Purchase Agreement provides that no provision
of the Purchase Agreement may be amended except in a written instrument signed
by the Company and the Investor; and
WHEREAS, the Company and the Investor desire to amend the Purchase
Purchase Agreement:
“ANS/Meer Agreement” means that certain Securities Purchase Agreement of
even date herewith among the Investor, ANS Investments LLC, a Delaware limited
liability company (“ANS”), and Jonah M. Meer, an individual (“Meer” and,
together with ANS, the “ANS Parties”), pursuant to which the Investor has agreed
to purchase 568,985 shares of the Company’s Common Stock (the “ANS Shares”) from
the ANS Parties.
(b) A new Section 2.4 shall be added to the Purchase Agreement to read in
“2.4 Amendment of Warrant upon Purchase of ANS Shares. If the Investor
consummates the purchase of the ANS Shares from the ANS Parties as contemplated
by the ANS/Meer Agreement, then, and immediately upon the closing of such
purchase transaction, the Warrant shall be amended as follows:
(a) The Warrant Price (as defined in the Warrant) shall be decreased
to $1.15 per share; and
(b) The first paragraph of Section 8(f) of the Warrant shall be
‘Except as provided in subsection (g) hereof, if and whenever the Company
shall issue or sell, or is, in accordance with any of subsections (f)(1) through
Stock (as defined below) for no consideration or for a consideration per share
less than the Warrant Price (as the Warrant Price is adjusted from time to time
under this Section 8), then and in each such case (a “Trigger Issuance”), the
then-existing Warrant Price shall be reduced as of the close of business on the
effective date of the Trigger Issuance, to a price determined in accordance with
the following formula:
Adjusted Warrant Price =
A + C
where
“B” equals the Warrant Price in effect immediately preceding such
Trigger Issuance;
deemed issued hereunder as a result of the Trigger Issuance; and
be received by the Company upon such Trigger Issuance;
-2-
such Trigger Issuance.’”
(c) A new Section 4.9 shall be added to the Purchase Agreement to read in
“4.9 Filing of Form 10-Q; Additional Disclosure to ANS Parties. Without
limiting the generality of Section 4.2 hereof, the Company covenants to timely
file with the SEC its Form 10-Q for the fiscal quarter ended March 31, 2009. The
Company further agrees to provide such information, if any, to YEP as is
reasonably necessary in order for YEP to fulfill its disclosure obligation under
the ANS/Meer Agreement.”
(d) A new Section 4.10 shall be added to the Purchase Agreement to read in
“4.10 Board Committee Membership.
(a) For so long as Nikolay Bogachev is a member of the Board of Directors
of the Company, he may elect to be designated as a member of the Audit Committee
of the Board of Directors, provided that he meets the established requirements
for members of such committee; and
(b) For so long as J. Thomas Wilson is a member of the Board of Directors
of the Company, he may elect to be designated as a member of the Compensation
Committee of the Board of Directors, provided that he meets the established
requirements for members of such committee.”
(e) Section 6.1(a) of the Purchase Agreement shall be amended in its
”(a) by the Investor or the Company, upon written notice to the other, if
the Closing shall not have taken place by 6:30 p.m., Eastern Time, on June 30,
2009, whether such date is before or after the date of the stockholder approvals
contemplated by Sections 5.1(f) and (g); provided, that the right to terminate
this Agreement pursuant to this Section 6.1(a) shall not be available to any
party whose failure to perform any of its obligations under this Agreement is
the primary cause of the failure of the Closing to have occurred by such date
and time; or”
-3-
and effect.
3. Counterparts; Facsimile Signatures. This Amendment may be executed or
-4-
above.
COMPANY:
MAGELLAN PETROLEUM CORPORATION
By: /s/ William H. Hastings Name: William H. Hastings
Title: President and Chief Executive Officer INVESTOR:
YOUNG ENERGY PRIZE S.A.
By: /s/ Nikolay Bogachev Name: Nikolay Bogachev
-5- |
Converted by SEC Publisher, created by BCL Technologies Inc., for SEC Filing As filed with the Securities and Exchange Commission on June 25, 2009 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D. C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 PRINCIPAL FINANCIAL GROUP, INC. (Exact name of Registrant as specified in its charter) DELAWARE 42-1520346 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 711 High Street Des Moines, Iowa 50392 (Address of principal executive offices, including zip code) Principal Financial Group, Inc. Employee Stock Purchase Plan (Full title of the plan) Karen E. Shaff, Esq. Executive Vice President And General Counsel Principal Financial Group, Inc. 711 High Street Des Moines, Iowa 50392 (515) 247-5111 (Name, address and telephone number, including area code of agent for service) Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See definitions of large accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act (Check one): Large accelerated filer x Accelerated filer ¨ Non-accelerated filer ¨ Smaller reporting company ¨ (Do not check if a smaller reporting company) Page 2 CALCULATION OF REGISTRATION FEE Title of securities Amount to be Proposed Proposed Amount of to be registered registered maximum maximum registration fee offering price per aggregate share(2) offering price(2) Common Stock $.01 par value (1) 7,740,757 shares $17.61 $136,314,730.77 $7,607.00 (1) In addition, pursuant to Rule 416 under the Securities Act of 1933, this Registration Statement includes an indeterminate number of additional shares as may be issuable as a result of a stock split, stock dividend or similar adjustment of the outsta nding common shares of Principal Financial Group, Inc. (2) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) and Rule 457(h) under the Securities Act of 1933 based upon the average ($17.61) of the high ($18.16) and low ($17.06) sales prices of the registrants common stock as reported on the New York Stock Exchange on June 23, 2009. Page 3 PART I INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS As permitted by Part I of Form S-8, this Registration Statement omits the information specified in Part I. The documents containing the information specified in Part I will be delivered to the participants in the plans covered by this Registration Statement, as required by Rule 428(b) under the Securities Act of 1933. Such documents are not being filed with the Securities and Exchange Commission as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act of 1933. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE The following documents filed by Principal Financial Group, Inc. are hereby incorporated by reference in this Registration Statement: (a) The Registrants Annual Report on Form 10-K for the fiscal year ended December 31, 2008, filed with the Commission on February 18, 2009, which contains audited consolidated financial statements for the most recent fiscal year for which such statements have been filed; (b) The Registrants Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2009, filed with the Commission on May 6, 2009, and the Registrants Current Reports on Form 8-K filed with the Commission on January 15, 2009, February 27, 2009, May 15, 2009, and May 21, 2009; and (c) The description of the Registrants Common Stock and the rights associated with such Common Stock contained in the Registrants Registration Statements on Form 8-A, dated October 10, 2001, including any amendments or reports filed for the purpose of updating such description. All documents subsequently filed by Principal Financial Group, Inc. pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 prior to the filing of a post- effective amendment that indicates that all securities offered hereby have been sold or that deregisters all securities then remaining unsold shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein (or in any other subsequently filed document that also is incorporated or deemed to be incorporated by reference herein) modifies or Page 4 supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. ITEM 4. DESCRIPTION OF SECURITIES Not applicable (the Registrants Common Stock is registered under Section 12 of the Securities Exchange Act of 1934). ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL Not Applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS The directors and officers of Principal Financial Group, Inc. may be indemnified against liabilities, fines, penalties and claims imposed upon or asserted against them as provided in the Delaware General Corporation Law and the company's certificate of incorporation and restated by- laws and in individual indemnification agreements entered into between the Company and each director and senior officer. Such indemnification covers all costs and expenses incurred by a director or officer in his or her capacity as such. Pursuant to the individual indemnification agreements, to the extent permitted by law, no determination is required that indemnification is proper in the circumstances. If such determination is required, the board of directors, by a majority vote of a quorum of disinterested directors or, under certain circumstances, independent counsel appointed by the board of directors, must determine that the director or officer seeking indemnification was not guilty of willful misconduct or a knowing violation of the criminal law. In addition, the Delaware General Corporation Law and the company's certificate of incorporation may, under certain circumstances, eliminate the liability of directors and officers in a stockholder or derivative proceeding. If the person involved is not a director or officer of Principal Financial Group, Inc., the board of directors may cause the company to indemnify, to the same extent allowed for the company's directors and officers, such person who was or is a party to a proceeding by reason of the fact that he or she is or was an employee or agent of the company, or is or was serving at the company's request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise. The company has policies in force and effect to insure its directors and officers against such losses that they or any of them will become legally obligated to pay by reason of any actual or alleged error or misstatement or misleading statement or act or omission or neglect or breach of duty by such directors and officers in the discharge of their duties, solely by reason of their being directors or officers. Such coverage is limited by the specific terms and provisions of the insurance policies. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED Not Applicable. Page 5 ITEM 8. EXHIBITS An Exhibit Index, containing a list of all exhibits filed with this Registration Statement, is included below on page 9. ITEM 9. UNDERTAKINGS (a) Rule 415 Offering. The Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post- effective amendment to this Registration Statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, unless the information that would be required to be included in a post- effective amendment is contained in periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this Registration Statement; (ii) To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement, unless the information that would be required to be included in a post-effective amendment is contained in periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective Registration Statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. Page 6 (b) Subsequent Exchange Act Documents. The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Indemnification. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue. Page 7 SIGNATURES The Registrant. Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Des Moines, State of Iowa, on June 25, 2009. PRINCIPAL FINANCIAL GROUP, INC. By /s/ Larry D. Zimpleman Larry D. Zimpleman Chairman, President and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons, in the capacities and on the dates indicated. Signature Title Date /s/ Larry D. Zimpleman Chairman, President and Chief June 25, 2009 Executive Officer and Director Larry D. Zimpleman (principal executive officer) /s/ Terrance J. Lillis Senior Vice President and June 25, 2009 Chief Financial Officer Terrance J. Lillis (principal financial officer and principal accounting officer) /s/ Betsy J. Bernard June 25, 2009 Director Betsy J. Bernard /s/ Jocelyn Carter-Miller June 25, 2009 Director Jocelyn Carter-Miller /s/ Gary E. Costley June 25, 2009 Director Gary E. Costley Page 8 /s/ Michael T. Dan June 25, 2009 Director Michael T. Dan /s/ C. Daniel Gelatt, Jr. June 25, 2009 Director C. Daniel Gelatt, Jr. /s/ J. Barry Griswell June 25, 2009 Director J. Barry Griswell /s/ Sandra L. Helton June 25, 2009 Director Sandra L. Helton /s/ William T. Kerr June 25, 2009 Director William T. Kerr /s/ Richard L. Keyser June 25, 2009 Director Richard L. Keyser /s/ Arjun K. Mathrani June 25, 2009 Director Arjun K. Mathrani /s/ Elizabeth E. Tallett June 25, 2009 Director Elizabeth E. Tallett Page 9 INDEX TO EXHIBITS Exhibit Description Method of Filing 4.1 Form of Certificate for the Common Stock of Principal Financial Incorporated by Group, Inc. (1) Reference 4.2 Form of Stockholder Rights Agreement (2) Incorporated by Reference 5 Opinion of Karen E. Shaff, Executive Vice President and General Electronic Counsel Transmission 23.1 Consent of Ernst & Young LLP Electronic Transmission 23.2 Consent of Karen E. Shaff (included in Exhibit 5) Electronic Transmission 24 Powers of Attorney Electronic Transmission 99 Principal Financial Group, Inc. Employee Stock Purchase Plan Incorporated by (previously filed as Appendix A to Principal Financial Group, Inc.s Reference definitive proxy statement filed April 8, 2009 (File No. 001-16725) (1) Incorporated herein by reference to Exhibit 4.1 to Principal Financial Group, Inc.'s Registration Statement on Form S-1 (File No. 333-62558). (2) Incorporated by reference to Exhibit 4.2 to Principal Financial Group, Inc.'s Annual Report on Form 10-K for the year ended December 31, 2002 (Commission File No. 001-16725). Page 10 [PFG Letterhead] EXHIBIT 5 June 25, 2009 Principal Financial Group, Inc. 711 High Street Des Moines, Iowa 50392 Dear Sirs or Mesdames: I serve as General Counsel to Principal Financial Group, Inc., a Delaware corporation (the Company), and deliver this opinion in connection with the filing by the Company of a Registration Statement on Form S-8 (the Registration Statement) relating to 7,740,757 shares of the Company's common stock, par value $.01 per share (the Common Stock), to be issued pursuant to the Principal Financial Group, Inc. Employee Stock Purchase Plan (the Plan). I or other attorneys working under my direction have examined the originals, or copies certified or otherwise identified to my or said attorneys satisfaction, of the Plan and such other corporate records, documents, certificates or other instruments as in my or said attorneys judgment are necessary or appropriate to enable me to render the opinion set forth below. Based on the foregoing, I am of the opinion that authorized but not previously issued shares of Common Stock which may be issued under the Plan have been duly authorized and, when issued in accordance with the terms of the Plan, will be validly issued, fully paid and non-assessable. I consent to the filing of this opinion as an exhibit to the Company's Registration Statement. In giving such consent, I do not admit that I am within the category of persons whose consent is required under Section 7 of the Securities Act of 1933 or the rules and regulations of the Securities and Exchange Commission thereunder. Sincerely, /s/ Karen E. Shaff Karen E. Shaff Executive Vice President and General Counsel Page 11 Exhibit 23.1 Consent of Independent Registered Public Accounting Firm We consent to the incorporation by reference in the Registration Statement (Form S-8 dated June 25, 2009) pertaining to the Employee Stock Purchase Plan of Principal Financial Group, Inc. of our reports dated February 16, 2009, with respect to the consolidated financial statements and schedules of Principal Financial Group, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2008, and the effectiveness of internal control over financial reporting of Principal Financial Group, Inc. filed with the Securities and Exchange Commission. /s/ Ernst & Young Des Moines, Iowa June 19, 2009 Page 12 Exhibit 24 POWER OF ATTORNEY Each person whose signature appears below hereby authorizes and appoints Larry D. Zimpleman, Terrance J. Lillis, Karen E. Shaff and Joyce N. Hoffman, and each of them, as such persons true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, to sign on such persons behalf individually and in each capacity stated below a Registration Statement on Form S-8 for the registration of 4,470,757 shares of Principal Financial Group, Inc. common stock to be issued under the Principal Financial Group, Inc. Employee Stock Purchase Plan, pursuant to the Securities Act of 1933, as amended, and any and all amendments and supplements to said registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, and each of them, full power and authority to do and perform each and every thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as such person could do in person, hereby ratifying and confirming all that such attorney-in- fact or agent may lawfully do or cause to be done by virtue hereof. Dated June 25, 2009 /s/ Larry. D. Zimpleman /s/ J. Barry Griswell Larry D. Zimpleman J. Barry Griswell Chairman, President, Chief Director Executive Officer and Director /s/ Terrance J. Lillis /s/ Sandra L. Helton Terrance J. Lillis Sandra L. Helton Senior Vice President and Chief Director Financial Officer /s/ Betsy J. Bernard /s/ William T. Kerr Betsy J. Bernard William T. Kerr Director Director /s/ Jocelyn Carter-Miller /s/ Richard L. Keyser Jocelyn Carter-Miller Richard L. Keyser Director Director /s/ Gary E. Costley /s/ Arjun K. Mathrani Gary E. Costley Arjun K. Mathrani Director Director /s/ Michael T. Dan /s/ Elizabeth E. Tallett Michael T. Dan Elizabeth E. Tallett Director Director /s/ C. Daniel Gelatt, Jr. C. Daniel Gelatt, Jr. Director
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Exhibit 99.3 DAIMLER TRUST, as Initial Secured Party, [], as Assignee-Secured Party, and [], as Securities Intermediary FORM OF TITLING TRUST ACCOUNT CONTROL AGREEMENT Dated as of [_], 201[] TABLE OF CONTENTS Page ARTICLE ONE USAGE AND DEFINITIONS Section 1.01 Capitalized Terms; Rules of Usage 2 ARTICLE TWO ESTABLISHMENT OF CONTROL OVER THE 201[]-[] EXCHANGE NOTE COLLECTION ACCOUNT Section 2.01. Establishment of the 201[]-[] Exchange Note Collection Account 3 Section 2.02. Grant of Security Interest 3 Section 2.03. “Financial Assets” Election 4 Section 2.04. Entitlement Orders 4 Section 2.05. Subordination of Lien; Waiver of Set-Off 4 Section 2.06. Notice of Adverse Claims 5 ARTICLE THREE REPRESENTATIONS, WARRANTIES AND COVENANTS Section 3.01. Representations, Warranties and Covenants of the Securities Intermediary 6 Section 3.02. Additional Representations and Warranties 6 ARTICLE FOUR MISCELLANEOUS Section 4.01. GOVERNING LAW 8 Section 4.02. WAIVER OF JURY TRIAL 8 Section 4.03. Conflict with Other Agreements 8 Section 4.04. Amendments 8 Section 4.05. Successors and Assigns 9 Section 4.06. Notices 9 Section 4.07. Termination 9 Section 4.08. No Petition 10 Section 4.09. Counterparts 10 Section 4.10. Table of Contents and Headings 10 Section 4.11. No Recourse 10 This TITLING TRUST CONTROL AGREEMENT, dated as of [_], 201[] (as amended, restated, modified or otherwise supplemented, this “Agreement”), is among DAIMLER TRUST (the “Titling Trust”), as initial secured party (the “Initial Secured Party”), [] (“[]”), as indenture trustee (the “Indenture Trustee”), as secured party (the “Assignee-Secured Party”), and [], as securities intermediary (the “Securities Intermediary”). RECITALS WHEREAS, pursuant to the Amended and Restated Servicing Agreement, dated as of March1, 2009 (the “Servicing Agreement”), and the 201[]-[] Servicing Supplement, dated as of [_], 201[] (the “Servicing Supplement”), each among Mercedes Benz Financial Services USA LLC, as servicer (in such capacity, the “Servicer”) and as lender (in such capacity, the “Lender”), Daimler Title Co., as collateral agent (the “Collateral Agent”), and the Titling Trust, the segregated account, established with the Securities Intermediary, with account number , designated as the 201[]-[] Exchange Note Collection Account (the “201[]-[] Exchange Note Collection Account”) has been created; WHEREAS, the Initial Secured Party desires to grant to the Assignee-Secured Party a security interest in the 201[]-[] Exchange Note Collection Account, all related Security Entitlements (as defined herein) and the financial assets and other investment property from time to time included therein to secure payment of the obligations of the Initial Secured Party and Mercedes-Benz Auto Lease Trust 201[]-[] under the Collateral Agency Agreement (as defined herein) and the Exchange Note Supplement (as defined herein), as applicable; WHEREAS, pursuant to the Servicing Supplement, on the date on which the Lien of the Indenture is released, rights with respect to the 201[]-[] Exchange Note Collection Account shall be transferred to the Collateral Agent; WHEREAS, pursuant to the Servicing Supplement, on the date on which the 201[]-[] Exchange Note is paid in full, rights with respect to the 201[]-[] Exchange Note Collection Account shall be transferred back to the Initial Secured Party; and WHEREAS, the parties hereto desire (i)that the security interest of the Assignee-Secured Party be a first priority security interest perfected by “control” pursuant to Articles Eight and Nine of the Uniform Commercial Code and (ii)to make provision for the perfection in a similar manner of the Initial Secured Party’s security interest following release of the Lien of the Indenture. NOW, THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: ARTICLE ONE USAGE AND DEFINITIONS Section 1.01.Capitalized Terms; Rules of Usage.Capitalized terms used in this Agreement that are not otherwise defined shall have the meanings ascribed thereto in Appendix1 to the Exchange Note Supplement or, if not defined therein, in AppendixA to the Collateral Agency Agreement, which Appendices are hereby incorporated into and made a part of this Agreement.Appendix1 also contains rules as to usage applicable to this Agreement.Except as otherwise specified herein or as the context may otherwise require, the following terms have the respective meanings set forth below for all purposes of this Agreement: “Administrative Agent” means [], a national banking association. “Assignee-Secured Party” has the meaning set forth in the preamble. “Collateral Agency Agreement” means the Amended and Restated Collateral Agency Agreement, dated as of March1, 2009, among the Titling Trust, the Administrative Agent, the Collateral Agent, the Lender and the Servicer. “Entitlement Holder” means, with respect to any financial asset, a Person identified in the records of the Securities Intermediary as the Person having a Security Entitlement against the Securities Intermediary with respect to such financial asset. “Entitlement Order” means a notification directing the Securities Intermediary to transfer or redeem a financial asset. “Exchange Note Supplement” means the 201[]-[] Exchange Note Supplement, among the Titling Trust, the Administrative Agent, the Collateral Agent, the Lender, the Servicer and the Indenture Trustee. “Financial Asset” has the meaning set forth in Section8-102(a)(9) of the UCC. “Initial Secured Party” has the meaning set forth in the preamble. “Securities Intermediary” has the meaning set forth in the preamble. “Security Entitlement” means the rights and property interest of an Entitlement Holder with respect to a Financial Asset, as specified in Part5 of Article8 of the UCC. “UCC” means the Uniform Commercial Code as in effect in the State of New York. 2 ARTICLE TWO ESTABLISHMENT OF CONTROL OVER THE 201[]-[] EXCHANGE NOTE COLLECTION ACCOUNT Section 2.01.Establishment of the 201[]-[] Exchange Note Collection Account.The Securities Intermediary hereby confirms that (i)the Indenture Trustee, on behalf of the Servicer, has established the 201[]-[] Exchange Note Collection Account with the Securities Intermediary, (ii)the 201[]-[] Exchange Note Collection Account is an account to which Financial Assets are or may be credited, (iii)the Securities Intermediary shall, subject to the terms of this Agreement and the Indenture, treat the Assignee-Secured Party as entitled to exercise the rights that comprise any Financial Asset credited to the 201[]-[] Exchange Note Collection Account, (iv)all property delivered to the Securities Intermediary by or on behalf of the Assignee-Secured Party or the Initial Secured Party for deposit to the 201[]-[] Exchange Note Collection Account will promptly be credited to the 201[]-[] Exchange Note Collection Account and (v)all securities or other property underlying any Financial Assets credited to the 201[]-[] Exchange Note Collection Account shall be registered in the name of the Securities Intermediary, endorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to the 201[]-[] Exchange Note Collection Account be registered in the name of the Initial Secured Party, payable to the order of the Initial Secured Party or specially endorsed to the Initial Secured Party except to the extent the foregoing have been specially endorsed to the Securities Intermediary or in blank. Section 2.02.Grant of Security Interest.The Initial Secured Party Grants to the Indenture Trustee on the 201[]-[] Closing Date, as Indenture Trustee for the benefit of the 201[]-[] Secured Parties, all of the Initial Secured Party’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising in, the 201[]-[] Exchange Note Collection Account.The Grant of the 201[]-[] Exchange Note Collection Account includes (i)all rights, powers and options (but none of the obligations) of the Initial Secured Party as holder of the 201[]-[] Exchange Note Collection Account, including the immediate and continuing right to claim for, collect, receive and give receipt for all monies included in the 201[]-[] Exchange Note Collection Account, to give and receive notices and other communications, to make waivers or other agreements, to exercise all rights and options, to bring Proceedings in the name of the Initial Secured Party or otherwise, and generally to do and receive anything that any Initial Secured Party is or may be entitled to do or receive under the 201[]-[] Exchange Note Collection Account or with respect to the 201[]-[] Exchange Note Collection Account. The foregoing Grant is made in trust to secure (i)the payment of principal of and interest on, and any other amounts owing in respect of, the 201[]-[] Exchange Note as provided in the 201[]-[] Exchange Note Supplement and (ii)compliance by the Initial Secured Party with the provisions of the 201[]-[] Exchange Note Supplement for the benefit of the 201[]-[] Secured Parties. 3 The Indenture Trustee acknowledges such Grant, accepts the trusts under this Agreement and agrees to perform the duties required in this Agreement and the 201[]-[] Exchange Note Supplement. The Initial Secured Party hereby authorizes the Indenture Trustee to file a Record or Records (as such term is defined in the applicable UCC), including financing statements or continuation statements, and amendments thereto, in all jurisdictions and with all filing offices as are necessary or advisable to perfect, and continue the perfection of, the security interest Granted to the Indenture Trustee; provided, that the Indenture Trustee will have no obligation to make any such filings.Such financing statements may describe the 201[]-[] Exchange Note Collection Account in any manner as the Indenture Trustee may determine is necessary, advisable or prudent to ensure the perfection of the security interest Granted to the Indenture Trustee under this Agreement; provided, that the Indenture Trustee will have no obligation to make any such determination. Section 2.03.“Financial Assets” Election.The Securities Intermediary hereby agrees that each item of property (whether investment property, financial asset, security, instrument or cash) credited to the 201[]-[] Exchange Note Collection Account shall be treated as a “Financial Asset” set forth in Section8-102(a)(9) of the UCC. Section 2.04.Entitlement Orders.If at any time the Securities Intermediary shall receive any Entitlement Order from the Assignee-Secured Party with respect to the 201[]-[] Exchange Note Collection Account, the Securities Intermediary shall comply with such Entitlement Order without further consent by the Initial Secured Party or any other Person.If at any time the Assignee-Secured Party notifies the Securities Intermediary in writing that the Lien of the Indenture has been released and the 201[]-[] Exchange Note has been paid in full, the Securities Intermediary shall thereafter comply with Entitlement Orders with respect to the 201[]-[] Exchange Note Collection Account from the Initial Secured Party without further consent by any other Person.Notwithstanding anything to the contrary contained herein, if at any time the Securities Intermediary receives conflicting orders or instructions from the Assignee-Secured Party and the Initial Secured Party, the Securities Intermediary will follow the orders or instructions of the Assignee-Secured Party and not the Initial Secured Party. Section 2.05.Subordination of Lien; Waiver of Set-Off.In the event that the Securities Intermediary has or subsequently obtains by agreement, operation of law or otherwise a security interest in the 201[]-[] Exchange Note Collection Account or any Security Entitlement credited thereto, the Securities Intermediary hereby agrees that such security interest shall be subordinate to the security interests of the Assignee-Secured Party and the Initial Secured Party.The Financial Assets and other items deposited to the 201[]-[] Exchange Note Collection Account will not be subject to deduction, set-off, banker’s lien or any other right in favor of any Person or entity other than the Assignee-Secured Party and, subject to the provisions hereof, the Initial Secured Party.Notwithstanding the foregoing, the Securities Intermediary may set off against amounts on deposit in the 201[]-[] Exchange Note Collection Account (i)all amounts due to it in respect of its customary fees and expenses for the routine maintenance and operation of the 201[]-[] Exchange Note Collection Account, and (ii)the face amount of any checks which have been credited to the 201[]-[] Exchange Note Collection Account but are subsequently returned unpaid because of uncollected or insufficient funds. 4 Section 2.06.Notice of Adverse Claims.Except for the claims and interests of the Initial Secured Party and the Assignee-Secured Party in the 201[]-[] Exchange Note Collection Account, the Securities Intermediary does not know of any claim to, or interest in, the 201[]-[] Exchange Note Collection Account or in any Financial Asset credited to the 201[]-[] Exchange Note Collection Account.If any Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the 201[]-[] Exchange Note Collection Account or in any Financial Asset within the 201[]-[] Exchange Note Collection Account, the Securities Intermediary will promptly notify the Assignee-Secured Party and the Initial Secured Party thereof. 5 ARTICLE THREE REPRESENTATIONS, WARRANTIES AND COVENANTS Section 3.01.Representations, Warranties and Covenants of the Securities Intermediary.The Securities Intermediary hereby represents and warrants to, and covenants for the benefit of, the Assignee-Secured Party and the Initial Secured Party, that: (a)The 201[]-[] Exchange Note Collection Account has been established as set forth in Section2.01(i) and will be maintained in the manner set forth herein until termination of this Agreement.The Securities Intermediary shall not change the name or account number of the 201[]-[] Exchange Note Collection Account without the prior written consent of the Assignee-Secured Party (or, after receipt of notice pursuant to Section2.04 that the Lien of the Indenture has been released and the 201[]-[] Exchange Note has been paid in full, the Initial Secured Party). (b)No Financial Asset carried in the 201[]-[] Exchange Note Collection Account is or will be registered in the name of the Initial Secured Party, payable to the order of the Initial Secured Party, or specially endorsed to the Initial Secured Party, except to the extent such Financial Asset has been endorsed to the Securities Intermediary or in blank. (c)This Agreement is the valid and legally binding obligation of the Securities Intermediary. (d)The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement pursuant to which it agrees to comply with Entitlement Orders of any Person other than the Assignee-Secured Party or the Initial Secured Party, in each case to the extent provided in Section2.04, with respect to the 201[]-[] Exchange Note Collection Account. (e)The Securities Intermediary has not entered into any other agreement with the Assignee-Secured Party or the Initial Secured Party purporting to limit or condition the obligation of the Securities Intermediary to comply with Entitlement Orders as set forth in Section2.04. (f)There are no other agreements entered into between the Securities Intermediary and the Initial Secured Party with respect to the 201[]-[] Exchange Note Collection Account other than the Servicing Agreement, the 201[]-[] Servicing Supplement, the 201[]-[] Exchange Note Supplement or the Indenture. (g)The Securities Intermediary in the ordinary course of its business maintains “securities accounts” (as defined in Section8-501 of the UCC) for others and is acting in that capacity hereunder. Section 3.02.Additional Representations and Warranties .The Securities Intermediary makes the following additional representations and warranties to the Initial Secured Party and the Assignee-Secured Party: 6 (a)The Securities Intermediary has been duly organized and is validly existing as a national banking association in good standing under the laws of the United States. (b)The Securities Intermediary has the power and authority to execute, deliver and perform its obligations under this Agreement.This Agreement has been duly authorized, executed and delivered by the Securities Intermediary and constitutes the legal, valid and binding obligation of the Securities Intermediary, enforceable against the Securities Intermediary in accordance with its terms, except as such enforceability may be limited by insolvency, bankruptcy, reorganization or other laws relating to or affecting the enforcement of creditors’ rights and by general equitable principles. (c)The consummation of the transactions contemplated by, and the fulfillment of the terms of, this Agreement will not (i)conflict with, result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time or both) a default under its charter documents or by-laws, any material indenture, mortgage, deed of trust, loan agreement, guarantee, lease financing agreement or similar agreement or instrument under which the Securities Intermediary is a party or by which the Securities Intermediary is bound, (ii)result in the creation or imposition of any Lien upon any of the Securities Intermediary’s properties pursuant to the terms of any such agreement or instrument (other than Liens contemplated by this Agreement) or (iii)violate or contravene any law or, to the Securities Intermediary’s knowledge, any order rule or regulation applicable to the Securities Intermediary of any Governmental Authority having jurisdiction over the Securities Intermediary or its properties, the failure to comply with which would reasonably be expected to have a material adverse effect on the Securities Intermediary’s ability to perform its obligations under this Agreement. (d)There are no Proceedings pending, or, to the Securities Intermediary’s knowledge, threatened, and to the Securities Intermediary’s knowledge there are no investigations pending or threatened, against or affecting the Securities Intermediary or its property before any Governmental Authority (i)asserting the invalidity or unenforceability of this Agreement, (ii)seeking to prevent the consummation of any of the transactions contemplated by this Agreement or (iii)seeking any determination or ruling that would reasonably be expected to have a material adverse effect on the ability of the Securities Intermediary to perform its obligations under this Agreement. 7 ARTICLE FOUR MISCELLANEOUS Section 4.01.GOVERNING LAW (a)THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ANY OTHERWISE APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS (OTHER THAN SECTION 5-1), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS. (b)Regardless of any provision in any other agreement, for purposes of the UCC including Sections8-110(b) and 9-304(b) thereof, the Security Intermediary’s jurisdiction (within the meaning of Section8-110 of the UCC) is the State of New York.Each party to this Agreement submits to the nonexclusive jurisdiction of the United States District Court for the Southern District of New York and of any New York State Court sitting in New York, New York for purposes of all Proceedings arising out of or relating to this Agreement or the transactions contemplated by the 201[]-[] Basic Documents.Each party to this Agreement irrevocably waives, to the fullest extent it may do so, any objection that it may now or hereafter have to the laying of the venue of any such Proceeding brought in such a court and any claim that any such Proceeding brought in such a court has been brought in an inconvenient forum. Section 4.02.WAIVER OF JURY TRIAL.EACH PARTY TO THIS AGREEMENT IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER 201[]-[] BASIC DOCUMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR ANY SUCH OTHER 201[]-[] BASIC DOCUMENT. Section 4.03.Conflict with Other Agreements.There are no other agreements entered into between the Securities Intermediary in such capacity and the Initial Secured Party with respect to the 201[]-[] Exchange Note Collection Account.In the event of any conflict between this Agreement (or any portion thereof) and any other agreement now existing or hereafter entered into with respect to the 201[]-[] Exchange Note Collection Account, the terms of this Agreement shall prevail. Section 4.04.Amendments. (a)This Agreement may be amended, supplemented or otherwise modified from time to time by a writing executed by the parties hereto, without the consent of any Securityholder, to cure any ambiguity, to correct or supplement any provision herein which may be inconsistent with any other provision herein or to add, change or eliminate any other provision with respect to matters or questions arising under this Agreement that are not inconsistent with the provisions of 8 this Agreement; provided, that (i)the Initial Secured Party shall have delivered to the Indenture Trustee an Opinion of Counsel to the effect that such action will not materially adversely affect the interests of any Noteholders or (ii)the Rating Agency Condition shall have been satisfied with respect to such amendment. (b)Each amendment, supplement or other modification of this Agreement other than those provided for in clause(a) above requires the consent of the Majority Noteholders of the Controlling Class (or if the Notes are no longer Outstanding, Holders of Certificates evidencing not less than a majority of the aggregate Certificate Percentage Interests); provided, however, that no such amendment may (i)increase or reduce in any manner the amount of, or accelerate or delay the timing of, or change the allocation or priority of, collections of payments on or in respect of the 201[]-[] Leases and 201[]-[] Vehicles or distributions that are required to be made for the benefit of the Securityholders, change the Interest Rate applicable to any class of Notes or the Required Reserve Amount for the 201[]-[] Reserve Account, without the consent of all holders of Notes then Outstanding or (ii)reduce the percentage of the Note Balance of the Notes or of the Controlling Class the consent of the Holders of which is required for any amendment to this Agreement without the consent of all Holders of Notes or of the Controlling Class then Outstanding. (c)It shall not be necessary for the consent of any Person pursuant to this Section for such Person to approve the particular form of any proposed amendment, but it shall be sufficient if such Person consents to the substance thereof. (d)Promptly after the execution of any such amendment, the Initial Secured Party shall furnish written notification of the substance of such amendment to the Owner Trustee, the Indenture Trustee and the Rating Agencies. Section 4.05.Successors and Assigns.All covenants and agreements in this Agreement shall be binding upon, and inure to the benefit of, the parties hereto, the Noteholders and their successors and assigns.Any request, notice, direction, consent, waiver or other instrument or action by the parties hereto shall bind their respective successors and assigns. Section 4.06.Notices.All demands, notices and communications hereunder shall be in writing and shall be delivered, e-mailed or mailed, postage prepaid, hand delivery, prepaid courier service or by telecopier, and addressed in each case as follows, if to (i)the Initial Secured Party, c/oBNY Mellon Trust of Delaware, 100 White Clay Center Route 273, Newark, Delaware 19711, Attention:Corporate Trust Administration (@.com), (ii)the Assignee-Secured Party, [], Attention:[] (@.com), (iii)the Securities Intermediary, √, Attention:Corporate Trust Services )@.com) or (iv) as to any of such parties, at such other address as shall be designated by such party in a written notice to the other parties. Section 4.07.Termination. (a)The rights and powers granted herein to the Assignee-Secured Party have been granted in order to perfect its security interest in the 201[]-[] Exchange Note Collection Account, are powers coupled with an interest and will neither be affected by the bankruptcy of 9 the Initial Secured Party nor by the lapse of time.The obligations of the Securities Intermediary hereunder shall continue in effect with respect to the 201[]-[] Exchange Note Collection Account until the Assignee-Secured Party and the Initial Secured Party (or, after the Securities Intermediary has been notified of the release of the Lien of the Indenture pursuant to Section2.04, only the Initial Secured Party) have notified the Securities Intermediary in writing that their respective security interests under the Indenture and the Trust Agreement have been terminated. (b)The rights and powers granted herein to the Initial Secured Party have been granted in order to perfect its security interest in the 201[]-[] Exchange Note Collection Account following the release of the Lien of the Indenture, are powers coupled with an interest and will neither be affected by the bankruptcy of the Initial Secured Party nor by the lapse of time.The obligations of the Securities Intermediary hereunder shall continue in effect with respect to the 201[]-[] Exchange Note Collection Account until the Assignee-Secured Party and the Initial Secured Party (or, after the Securities Intermediary has been notified of the release of the Lien of the Indenture pursuant to Section2.04, only the Initial Secured Party) have notified the Securities Intermediary in writing that their respective security interests under the Indenture and the Trust Agreement have been terminated. Section 4.08.No Petition.Each of the parties hereto covenants that for a period of one year and one day (or, if longer, any applicable preference period) after payment in full of all Exchange Notes, Notes and other Securities it will not institute against, or join any Person in instituting against the Initial Beneficiary, the Titling Trust, the Transferor, the Issuer or the 201[]-[] Exchange Noteholder any bankruptcy, reorganization, arrangement, insolvency or liquidation Proceedings, or other Proceedings under any Insolvency Law in connection with any obligations relating to the 201[]-[] Exchange Note, any 201[]-[] Notes, this Agreement or any other 201[]-[] Basic Document and agrees that it will not cooperate with or encourage others to institute any such Proceeding. Section 4.09.Counterparts.This Agreement may be executed in any number of counterparts, each of which counterparts will be an original, and all of which counterparts will together constitute one and the same instrument. Section 4.10.Table of Contents and Headings.The Table of Contents and the various headings in this Agreement are included for convenience only and will not affect the meaning or interpretation of any provision of this Agreement. Section 4.11.No Recourse.It is expressly understood and agreed by the parties that (i)this document is executed and delivered by BNYM, not individually or personally, but solely as Titling Trustee, in the exercise of the powers and authority conferred and vested in it, (ii)each of the representations, undertakings and agreements herein made on the part of the Titling Trust is made and intended not as personal representations, undertakings and agreements by BNYM but is made and intended for the purpose for binding only the Titling Trust, (iii)nothing herein contained shall be construed as creating any liability on BNYM, individually or personally, to perform any covenant either expressed or implied contained herein, all such liability, if any, being expressly waived by the parties hereto and by any person claiming by, through or under the parties hereto and (iv)under no circumstances shall BNYM be personally liable for the 10 payment of any indebtedness or expenses of the Titling Trust or be liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by the Titling Trust under this document or any other related documents. IN WITNESS WHEREOF, the parties hereto have caused this Titling Trust Account Control Agreement to be duly executed by their respective officers duly authorized as of the day and year first above written. DAIMLER TRUST, as Initial Secured Party BY: BNY MELLON TRUST OF DELAWARE (f/k/a BNYM (Delaware)) (f/k/a The Bank of New York (Delaware)), not in its individual capacity, but solely as Titling Trustee By: Name: Title: [ ], not in its individual capacity but solely as Assignee-Secured Party By: Name: Title: [ ], not in its individual capacity but solely as Assignee-Secured Party By: Name: Title:
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Exhibit 10.1
REGIONAL MANAGEMENT CORP.
RETENTION AWARD AGREEMENT
, 20 , by and between Regional Management Corp., a Delaware
corporation (the “Company”), and , an
RECITALS
WHEREAS, it is critical that the Company retain its employees to facilitate the
achievement of important Company goals and, accordingly, the Company desires to
provide additional incentive to the Employee to remain employed by the Company
and provide valuable services;
Section 1. Agreement Period. This Agreement will commence effective as of
and will end as of
(the “Agreement Period”).
Section 2. Retention Benefits. Subject to the terms and conditions of this
Agreement, the Company will provide Employee with a retention award (the
“Retention Award”) in the amount of $ , less any applicable
withholding or other obligations, as provided in Section 11 herein. The
Retention Award shall be payable as follows: $ (representing 25% of
the Retention Award) to be paid on or about ; $
(representing 25% of the Retention Award) to be paid on or about
; and $ (representing 50% of the Retention
Award) to be paid on or about ( ,
, and shall be collectively referred to
as the “Payout Date(s)”). In order to receive a Retention Award payment, the
Employee must be employed by the Company, any parent or subsidiary of the
Company or any successor to the Company as of each of the applicable Payout
Dates listed above. Notwithstanding the foregoing, if the Company, any parent or
subsidiary of the Company or any successor to the Company terminates the
Employee’s employment prior to a designated Payout Date for any reason other
than for “Cause” (as that term is defined in Section 20 of this Agreement), then
the Company will pay Employee the Retention Award payment(s) Employee would have
been entitled to receive under the terms of this Agreement had Employee remained
employed by the Company throughout the Agreement Period. All Retention Award
payments shall be made (without interest) within thirty (30) days following the
Payout Date; provided that, in the case of termination by the Company without
Cause and notwithstanding anything herein to the contrary, no Retention Award
payment shall be due or payable unless Employee shall have executed and
delivered to the Company a Release (as that term is defined in Section 20 of
this Agreement) within such thirty (30) day period. The determination of whether
a termination for Cause has occurred shall be made by the Compensation Committee
of the Company’s Board of Directors (the “Committee”) acting in good faith.
Section 3. No Right to Continued Employment; Forfeiture. Nothing contained in
this Agreement shall be construed as conferring upon the Employee the right or
imposing upon him the obligation to continue in the employment of the Company,
nor shall it limit the right of the Company to terminate the Employee’s
employment at any time for any reason or for no reason. If the Employee’s
employment terminates other than in accordance with the conditions described in
Section 1 (whether by the Company or the Employee, and whether voluntary or
involuntary), the Employee will forfeit his right to any portion of the
Retention Award.
Section 4. No Trust Fund. The obligation of the Company to make payments
hereunder shall constitute a liability of the Company to the Employee. Such
not be required to establish or maintain any special or separate fund or
the Employee shall not have any interest in any particular assets of the Company
by reason of its obligations hereunder. Nothing contained in this Agreement
fiduciary relationship between the Company and the Employee or any other person.
of the Company.
Section 5. Facility of Payments. If it appears that the Employee shall, at the
time any payment hereunder is due, be incapacitated so that the recipient cannot
legally receive or acknowledge receipt of the payments, then the Company at its
option may make the payment to the legal guardian, attorney in fact, or other
satisfaction of the Company’s obligations hereunder with respect to such
payment.
Section 6. Administration by Committee. The Agreement shall be administered by
the Committee. The Committee shall be responsible for the general administration
and interpretation of the Agreement and for carrying out its provisions, except
to the extent that the Committee delegates ministerial authority to a designee.
The Committee shall have the authority to interpret and construe the provisions
of the Agreement and to decide any dispute which may arise regarding the rights
of the Employee or the Company hereunder, which determinations shall be binding
and conclusive upon all interested persons.
Section 7. No Assignment or Transfer by the Employee. None of the rights,
benefits, obligations or duties under this Agreement may be assigned or
transferred by the Employee, except by will or under the laws of descent and
distribution. Any purported assignment or transfer by the Employee shall be
void.
Section 8. Right of Offset. Notwithstanding any other provision of the
Agreement, the Company may (subject to any considerations under Section 409A of
the Internal Revenue Code of 1986, as amended (the “Code”)), at any time reduce
Employee by the amount of any obligation of the Employee to the Company, and, by
entering into this Agreement, the Employee shall be deemed to have consented to
such reduction.
2
Section 9. Binding Agreement. This Agreement shall be binding upon and inure to
the benefit of the Employee, his executors, administrators, heirs and next of
kin, and the Company, its successors and assigns.
Section 10. Waiver. No term or condition of this Agreement shall be deemed to
Section 11. Withholding; Payroll Taxes. To the extent required by law in effect
at the time of any payment or accrual of benefits pursuant to the terms of this
Agreement, the Company shall withhold from payments made hereunder (or other
compensation payable to the Employee) the taxes required to withheld by the
Section 12. Amendment; Termination. Except as otherwise provided in this
Section 12, this Agreement may not be amended or terminated except by an
instrument in writing signed by both parties. Notwithstanding the foregoing, the
Company shall have unilateral authority to amend this Agreement to the extent
necessary to comply with applicable laws, rules and regulations (including but
not limited to Code Section 409A).
Section 13. Severability; Reformation. In case any one or more of the provisions
or part of a provision contained in this Agreement shall for any reason be held
legality or enforceability of this Agreement in any other jurisdiction or any
other provision or part of a provision of this Agreement, but this Agreement
shall be reformed and construed in such jurisdiction as if such invalid or
illegal or unenforceable provision or part of such a provision had never been
contained herein, and such provision or part thereof shall be reformed so that
it will be valid, legal and enforceable in such jurisdiction to the maximum
extent possible.
Section 14. Compliance with Recoupment and Other Policies or Agreements. As a
abide by all provisions of any compensation recovery policy and/or other similar
policies maintained by the Company, each as in effect and applicable to the
Employee from time to time. In addition, the Employee shall be subject to such
compensation recovery, recoupment, forfeiture or other similar provisions as may
apply at any time to the Employee under applicable law, rule or regulation.
Section 15. Governing Law. This Agreement shall be governed by and shall be
Carolina, without regard to the conflicts of law provisions of any state.
Section 16. Compliance with Code Section 409A. The parties intend that this
Agreement comply with, or be exempt from, Code Section 409A, and all rules,
regulations, and other similar guidance issued thereunder, to the extent that
they are reasonably determined to be subject to Code Section 409A. In the event
that the Company (or a successor thereof) has any stock which is publicly traded
on an established securities market or otherwise, distributions to the Employee
3
if he is a “specified employee” (as defined under Code Section 409A), upon a
separation from service may only be made on a date that is more than six months
six-month period, the date of death of the specified employee) (with such
payments being made during the seventh month following separation from service),
if and to the extent required under Code Section 409A. Further, (a) in the event
to the extent practicable, be deemed to be made a part of the Agreement, and
(b) terms used in the Agreement shall be construed in accordance with Code
Section 409A if and to the extent required. Further, in the event that the Award
the Board, the Committee, nor its or their designees or agents shall be liable
to any Employee or other person for actions, decisions or determinations made in
good faith.
Section 17. Tax Consequences. The Company has made no warranties or
representations to the Employee with respect to the tax consequences (including,
without limitation, income tax consequences) related to this Agreement or the
Retention Award, and the Employee is in no manner relying on the Company or its
representatives for an assessment of such tax consequences. The Employee
acknowledges that there may be adverse tax consequences upon the receipt of the
Retention Award and that he has been advised that he should consult with his own
this Agreement and the consequences thereof. The Employee also acknowledges that
order to achieve a certain tax result for the Employee.
Section 18. Entire Agreement. This Agreement represents the entire agreement of
the parties with respect to the subject matter hereof and expressly supersedes
all previous communications, understandings, commitments and agreements by or
between the parties, whether written, oral or otherwise, related to the subject
matter hereof.
Section 19. Gender. The use of any of the masculine, feminine or neuter gender
herein shall be construed also to include each of the other genders.
Section 20. Definitions. The following capitalized terms used in this Agreement
have the respective meanings set forth in this Section:
or similar agreement then in effect between the Employee and any of the Company
or its affiliates, or, if no such agreement containing a definition of “Cause”
(i) the Employee’s engagement in misconduct which is materially injurious to the
Company or its affiliates, (ii) the Employee’s continued failure to
substantially perform his duties to the Company, (iii) the Employee’s repeated
dishonesty in the performance of his duties to the Company, (iv) the Employee’s
misappropriation or embezzlement from, the Company or any of its affiliates,
sentence of at least one year or (v) the Employee’s material breach of any
confidentiality, non-solicitation, or non-competition covenant entered into
4
(b) Release. “Release” shall mean a general waiver and release, in a form
determined by the Company, discharging the Company, its affiliates and its and
representatives and the heirs, predecessors, successors and assigns of all of
the foregoing from any and all claims, actions, causes of action or other
liability, whether known or unknown, contingent or fixed, arising out of or in
any way related to the Retention Award (including, without limitation, any
claims under the Agreement, other than the Company’s obligation to pay the
consideration as provided in this Agreement).
5
IN WITNESS WHEREOF, this Agreement has been executed by and on behalf of the
parties effective as of the day and year first above written.
Printed Name:
Its:
Date:
EMPLOYEE
By:
Printed Name:
6 |
FOR IMMEDIATE RELEASE Contact:Bart D’Ambra (973) 473-2200 CLIFTON BANCORP INC. TO INITIATE STOCK REPURCHASE PROGRAM March 11, 2015, Clifton, New Jersey — Clifton Bancorp Inc., (the “Company”) (NasdaqGS: CSBK), the holding company for Clifton Savings Bank, announced today that it has authorized a stock repurchase program to acquire up to 2,731,000 shares of the Company’s outstanding common stock, or approximately 10% of outstanding shares.The repurchase program will become effective on April 2, 2015.Repurchases will be conducted through open market purchases, which may include purchases under a trading plan adopted pursuant to Securities and Exchange Commission Rule 10b5-1, or through privately negotiated transactions.Repurchases will be made from time to time depending on market conditions and other factors. Clifton Bancorp Inc. is the holding company of Clifton Savings Bank, a federally chartered savings bank headquartered in Clifton, New Jersey. Clifton Savings Bank is an organization with dedicated people serving communities, residents and businesses. Clifton Savings operates 12 full-service banking offices located in the diverse and vibrant Northeastern counties of New Jersey. The foregoing material may contain forward-looking statements concerning the financial condition, results of operations and business of the Company.We caution that such statements are subject to a number of uncertainties and actual results could differ materially and, therefore, readers should not place undue reliance on any forward-looking statements.The Company does not undertake, and specifically disclaims, any obligation to publicly release the results of any revisions that may be made to any forward-looking statements to reflect the occurrence of anticipated or unanticipated events or circumstances after the date of such statements.
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Exhibit 10.2
[g132281kk01i001.jpg]
August 1, 2013
BY HAND DELIVERY
Employee Name
Employee Address
Re: Retention Letter
Dear Name:
You are a highly valuable employee of Cubist. Cubist wishes to retain you as an
follows:
(a) “Cause” means: (i) you commit an act of dishonesty, fraud or
(iii) you breach any material obligation under any agreement with Cubist you
signed regarding your confidentiality, non-solicitation, and developments
obligations (referred to as “Confidentiality Agreement”) or Cubist’s Code of
Conduct and Ethics or any similar policy governing your employment with a
successor organization; (iv) you engage in substantial or continuing inattention
to or neglect of your duties and responsibilities reasonably assigned to you by
Cubist; (v) you engage in substantial or continuing acts to the detriment of
Cubist or inconsistent with Cubist’s policies or practices; or (vi) you fail to
carry out the reasonable and lawful instructions of your supervisor or the
Cubist Board of Directors that are consistent with your duties. For the
avoidance of doubt, “Cause” does not include a termination of employment due to
(b) “Cubist” means Cubist Pharmaceuticals, Inc., its affiliates and any
successor organization, except as otherwise specified.
(c) “Good Reason” means, in connection with a Change of Control:
(i) the failure of Cubist to employ you in your current or a substantially
similar position, without regard to title, such that your duties and
responsibilities are materially diminished without
1
your consent; (ii) a material reduction in your total target cash compensation
(iii) a material change in the geographic location of your primary place of
employment from your current site of employment without your consent; provided
however, if any of these conditions purportedly occur, in order to be able to
terminate your employment for “Good Reason” hereunder: (x) you are required to
provide notice of any such condition to Cubist’s Board of Directors within 60
days of the initial occurrence of the condition, (y) Cubist will then have 30
days to remedy the purported condition, and (z) if Cubist fails to remedy such
condition, you must separate from service not later than 60 days following the
end of such thirty-day period.
(d) “Change of Control” means (1) the closing of (A) any consolidation
or merger of Cubist in which Cubist is not the continuing or surviving
corporation or pursuant to which shares of Cubist common stock would be
consolidation in which the holders of Cubist common stock immediately prior to
the merger or consolidation will have the same proportionate ownership of common
stock of the surviving corporation immediately after the merger or consolidation
as before the merger or consolidation, or (B) any sale, lease, exchange or other
substantially all of the assets of Cubist, or (2) the date on which any “person”
(the “Exchange Act”)), other than Cubist or a subsidiary or an employee benefit
plan or trust maintained by Cubist or any of its subsidiaries shall become
(together with its “affiliates” and “associates,” as defined in Rule 12b-2 under
the Exchange Act) the “beneficial owner” (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of 50% or more of the Stock outstanding
at the time, with the prior approval of Cubist’s Board of Directors, or of more
than 25% of such shares, without the prior approval of Cubist’s Board of
Directors, or (3) a change in the composition of Cubist’s Board of Directors
over a period of 36 consecutive months or less such that a majority of the
members, to be composed of individuals who either (i) have been Board members
continuously since the beginning of that period, or (ii) have been elected or
Board.
Notwithstanding the foregoing, with respect to any award which constitutes
“nonqualified deferred compensation” under, and subject to, Section 409A of the
(“Section 409A”), to the extent necessary to comply with the requirements of
Section 409A, the term “Change of Control” shall mean an occurrence that both
(i) satisfies the requirements set forth above in the definition of Change of
For purposes of this Section 1(d), the term “Cubist” shall mean Cubist
Pharmaceuticals, Inc. and shall not include any successor organization.
(e) “Bonus” shall mean the greater of either (i) the current year
2. Severance.
a) Except as set forth in Section 2(b) below, in the event that your
employment is terminated by Cubist for any reason other than for Cause, then,
following, and subject to, receipt by Cubist of your signed and effective
release of claims as more fully described in Section 7 below (and your not
revoking such release during any applicable revocation period), Cubist shall pay
you starting sixty (60) days following the date of your employment termination
(or on the next succeeding business day if such date is not a business day), an
amount equal to eighteen (18) months of your then-current base salary, with such
payment to be made in twelve (12) equal semi-monthly installments, with the
first payment retroactive to the day immediately following the date your
employment terminated.
of Control, your employment is terminated either (i) by Cubist for any reason
other than for Cause or (ii) by you for Good Reason, then, following, and
subject to, receipt by Cubist of your signed and effective release of claims as
more fully described in Section 7 below (and your not revoking such release
during any applicable revocation period), Cubist shall make a one-time, lump-sum
plus Bonus on the sixtieth (60th) day following the termination of your
employment (or on the next succeeding business day if such date is not a
business day).
c) In the event that you become entitled to severance payments
under Section 2(a) or 2(b) of this Agreement, subject to (i) your having timely
elected continuation coverage under the federal law known as “COBRA”, (ii) your
timely payment of the active employee portion of the monthly COBRA premium for
each month during the period described below and (iii) such continuation
coverage not having terminated, for a period of up to eighteen (18) months
beginning on the first day of the month after the month in which your employment
terminates or, if earlier, until such time as your COBRA coverage terminates,
Cubist shall be responsible for the balance of the premium during this period.
d) Notwithstanding any other provision with respect to the timing of
payments under this Section 2, in order to comply with the requirements of
Section 409A, if any amount or benefit to be paid to you pursuant to this
Agreement as a result of your termination of employment constitutes “deferred
compensation” within the meaning of, and subject to, Section 409A, if you are a
“specified employee” (as determined by Cubist in its sole discretion and as
defined below) on the date of your termination of employment, any payment or
benefit or portion thereof, if any, that is scheduled to be paid or provided to
you hereunder during the first six (6) months following the date of your
termination of
employment shall not be paid until the date which is the first business day of
the seventh month following your termination. For purposes of the preceding
sentence, the term “specified employee” means an individual who is determined by
Cubist to be a specified employee under Section 1.409A-1(i) of the Treasury
Regulations. Cubist may, but need not, elect in writing, subject to the
shall be deemed part of this Agreement. For purposes of the Treasury
Regulations under Section 409A, each payment described in this Section shall be
e) For purposes of this Agreement, references to termination of
employment, separation from service and similar or correlative terms mean a
Regulations) from Cubist and from all other corporations and trades or
of employment for Good Reason or by Cubist for any reason other than for Cause
under this Agreement is intended to satisfy the meaning of “involuntary
Regulations).
4. Medical and Dental Benefits. Except for
plans under COBRA, all employee benefits shall terminate in accordance with the
terms of the applicable benefit plans as of the date of termination of your
employment. The “qualifying event” under COBRA, which triggers your right to
continue your health insurance post-employment, shall be deemed to have occurred
on the first day of the month following your termination date.
5. Equity Acceleration. In the event that
you become entitled to severance payments under Section 2(b) of this Agreement,
then all outstanding unvested equity-based compensation awards granted to you
under any equity plan of Cubist Pharmaceuticals, Inc. prior to the Change of
Control shall become exercisable and vested in full, and all restrictions
thereon shall lapse, notwithstanding any vesting schedule or other provisions to
the contrary in the agreements evidencing such awards or in the underlying
equity plan, and Cubist and you hereby agree that any agreements covering such
awards are hereby, and will be deemed to be, amended to give effect to this
provision.
6. Excise Tax Provision. Notwithstanding
any provision of this Agreement to the contrary:
(a) If at any time it is determined that payment of any or all amounts
provided for under this Agreement (the “Benefits”), together with any other
payments and benefits payable to you or for your benefit (together with the
Benefits, the “Total Benefits”), would subject you to an excise tax under
Section 4999 of the Internal Revenue Code of 1986, as amended (“Section 4999”),
and that a reduction in the amount of the unpaid Benefits
would result in the amount of the Total Benefits, net of all federal, state and
local income taxes on the Total Benefits and any taxes on the Total Benefits
under Section 4999 (such amount, the “Net After-Tax Receipts”), being equal to
or greater than the Net After-Tax Receipts that would result from payment of the
unpaid Benefits without reduction, then the aggregate amount of any unpaid
Benefits shall be reduced to the smallest amount that results in the Net
After-Tax Receipts being equal to or greater than the Net After-Tax Receipts
that would result if the unpaid Benefits were reduced to any other amount. Any
such reduction shall be implemented in the following order: first, by reducing
cash payments, in reverse chronological order such that the cash payment
otherwise payable on the latest date will be the first cash payment to be
reduced; second, by curtailing or cancelling the accelerated vesting of
equity-based compensation awards, in reverse order by date of grant (i.e., the
vesting of the most recently granted award will be reduced first); and third, by
reducing other benefits, if any, payable to you or for your benefit, in reverse
chronological order such that the benefit otherwise payable on the latest date
will be the first such benefit to be reduced.
(b) In the event that you receive payments or benefits that should not
have been paid under this Section 6, you agree to repay or reimburse Cubist
promptly upon receiving notice that an overpayment has been made.
(c) Nothing in this Section 6 shall cause Cubist to be responsible for,
or to have any liability or obligation with respect to, any excise tax liability
under Section 4999.
7. No Contract of Employment. This
8. Employee Release. Any obligation of
reasonably satisfactory to Cubist within the time period specified in such
release (which in all events shall be no later than the fiftieth (50th) calendar
day following the date on which your employment terminates). Cubist shall
provide you with the general release promptly after the date on which you give
9. Assignment. You shall not make any
assigns, including any person or entity that acquires the business or assets of
Cubist Pharmaceuticals, Inc. in a Change of Control.
application of such portion or provision in circumstances other than
affected thereby, and each portion and provision hereof shall be valid and
11. Miscellaneous. This Agreement will commence
on the date hereof and will expire three (3) years from the date hereof, unless
Cubist Pharmaceuticals, Inc. experiences a Change of Control prior to the
expiration of the term of this Agreement, in which case this Agreement will
expire on the later of: (a) three (3) years from the date hereof or (b) two
(2) years from the date of the closing of such Change of Control. This
Agreement sets forth the entire agreement between you and Cubist in connection
with the subject matter hereof, and replaces all prior and contemporaneous
the subject matter hereof, other than any obligations set forth in your
Confidentiality Agreement, which obligations shall remain in full force and
effect. In consideration of the payments and benefits provided to you
hereunder, you agree that, in the event your employment with Cubist terminates,
such payments and benefits shall be in complete satisfaction of any and all
obligations that Cubist may have to you, including under any severance
guidelines, practices or policies that Cubist may have in place during your
employment or at or after your employment terminates. Any severance amounts due
to you under this Agreement shall be reduced by any notice or pay in lieu
thereof that Cubist is required to give under the federal law known as “WARN” or
any similar state statute. This Agreement may not be modified or amended, and
an expressly authorized representative of Cubist. This Agreement may be
12. Arbitration. Any dispute arising under or
relating to this Agreement shall be resolved exclusively by arbitration
conducted before a single arbitrator in accordance with the Employment
Massachusetts. Judgment upon the award rendered by the arbitrator may be
entered in any court having jurisdiction thereof. The parties shall bear
equally the costs of arbitration, including the costs of the arbitrator.
By:
Michael W. Bonney
Date:
Accepted and Agreed:
By:
Name:
Date:
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EXHIBIT 32.2 CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION -OXLEY ACT OF 2002 In connection with the Amendment No. 1 to the Annual Report of HKN, Inc. (the “Company”) on Form 10-K/A and the Annual Report on Form 10-K originally filed February 17, 2011 (collectively, the “Report”) for the period ending December 31, 2010 as filed with the Securities and Exchange Commission, I, Sarah B. Gasch, Vice-President and Chief Financial Officer of the Company, certify to the best of my knowledge, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that: (1) The Report fully complies with the requirements of section 13 (a) or 15 (d) of the Securities Exchange Act of 1934; and (2) The information contained in the Report fairly presents, in all material respects, the financial condition and result of operations of the Company. A signed original of this written statement required by Section 906 has been provided to HKN, Inc. and will be retained by HKN, Inc. and furnished to the Securities and Exchange Commission or its staff upon request. By: /s/Sarah B. Gasch Sarah B. Gasch Vice President and Chief Financial Officer April 28, 2011
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EXHIBIT 10.13
UTSTARCOM, INC.
1. INTRODUCTION. THE PURPOSE OF THIS UTSTARCOM, INC. EXECUTIVE
INVOLUNTARY TERMINATION SEVERANCE PAY PLAN (THE “PLAN”) IS TO PROVIDE ASSURANCES
OF SPECIFIED SEVERANCE BENEFITS TO ELIGIBLE EMPLOYEES OF THE COMPANY WHOSE
DEATH OR DISABILITY). THE PLAN IS INTENDED TO (A) ASSURE THAT THE COMPANY WILL
HAVE CONTINUED DEDICATION AND OBJECTIVITY OF ITS EMPLOYEES, AND (B) PROVIDE THE
COMPANY’S EMPLOYEES WITH AN INCENTIVE TO CONTINUE THEIR EMPLOYMENT AND TO
MOTIVATE ITS EMPLOYEES TO MAXIMIZE THE VALUE OF THE COMPANY FOR THE BENEFIT OF
AMENDED. THIS DOCUMENT CONSTITUTES BOTH THE WRITTEN INSTRUMENT UNDER WHICH THE
PLAN IS MAINTAINED AND THE REQUIRED SUMMARY PLAN DESCRIPTION FOR THE PLAN.
2.1 “ADMINISTRATOR” MEANS THE COMPANY, ACTING THROUGH ITS VICE
PRESIDENT OF HUMAN RESOURCES OR ANY PERSON TO WHOM THE ADMINISTRATOR HAS
DELEGATED ANY AUTHORITY OR RESPONSIBILITY PURSUANT TO SECTION 8, BUT ONLY TO THE
EXTENT OF SUCH DELEGATION.
2.2 “BASE PAY” MEANS A COVERED EMPLOYEE’S REGULAR STRAIGHT-TIME SALARY
AS IN EFFECT DURING THE LAST REGULARLY SCHEDULED PAYROLL PERIOD IMMEDIATELY
PRECEDING THE DATE ON WHICH THE SEVERANCE BENEFIT BECOMES PAYABLE. BASE PAY
DOES NOT INCLUDE PAYMENTS FOR OVERTIME, SHIFT PREMIUM, INCENTIVE COMPENSATION,
INCENTIVE PAYMENTS, BONUSES, COMMISSIONS OR OTHER COMPENSATION.
2.4 “CAUSE” MEANS (A) ANY ACT OF PERSONAL DISHONESTY TAKEN BY THE
COVERED EMPLOYEE IN CONNECTION WITH HIS OR HER RESPONSIBILITIES AS AN EMPLOYEE
WHICH IS INTENDED TO RESULT IN SUBSTANTIAL PERSONAL ENRICHMENT OF THE COVERED
EMPLOYEE, (B) A COVERED EMPLOYEE’S CONVICTION OF A FELONY WHICH THE BOARD
REASONABLY BELIEVES HAS HAD OR WILL HAVE A MATERIAL DETRIMENTAL EFFECT ON THE
COMPANY’S REPUTATION OR BUSINESS, (C) A WILLFUL ACT BY THE COVERED EMPLOYEE
WHICH CONSTITUTES MISCONDUCT AND IS INJURIOUS TO THE COMPANY, AND (D) CONTINUED
WILLFUL VIOLATIONS BY THE COVERED EMPLOYEE OF THE COVERED EMPLOYEE’S OBLIGATIONS
TO THE COMPANY AFTER THERE HAS BEEN DELIVERED TO THE COVERED EMPLOYEE A WRITTEN
COMPANY’S BELIEF THAT THE COVERED EMPLOYEE HAS NOT SUBSTANTIALLY PERFORMED HIS
OR HER DUTIES.
2.5 “CHANGE IN CONTROL” SHALL MEAN THE OCCURRENCE OF ANY OF THE
FOLLOWING EVENTS:
BY THE COMPANY’S THEN OUTSTANDING VOTING SECURITIES; OR
(B) THE CONSUMMATION OF THE SALE OR DISPOSITION BY THE COMPANY OF ALL
OR SUBSTANTIALLY ALL OF THE COMPANY’S ASSETS; OR
(C) THE CONSUMMATION OF A MERGER OR CONSOLIDATION OF THE COMPANY, WITH
THE COMPANY, OR SUCH SURVIVING ENTITY OR ITS PARENT OUTSTANDING IMMEDIATELY
AFTER SUCH MERGER OR CONSOLIDATION; OR
(D) A CHANGE IN THE COMPOSITION OF THE BOARD, AS A RESULT OF WHICH
DIRECTORS” MEANS DIRECTORS WHO EITHER (A) ARE DIRECTORS AS OF THE EFFECTIVE DATE
OF THE PLAN (PURSUANT TO SECTION 22), OR (B) ARE ELECTED, OR NOMINATED FOR
THOSE DIRECTORS WHOSE ELECTION OR NOMINATION WAS NOT IN CONNECTION WITH ANY
TRANSACTION DESCRIBED IN SUBSECTIONS (I), (II) OR (III) OR IN CONNECTION WITH AN
ACTUAL OR THREATENED PROXY CONTEST RELATING TO THE ELECTION OF DIRECTORS.
2.6 “COMPANY” MEANS UTSTARCOM, INC., A DELAWARE CORPORATION, AND ANY
SUCCESSOR BY MERGER, ACQUISITION, CONSOLIDATION OR OTHERWISE THAT ASSUMES THE
OBLIGATIONS OF THE COMPANY UNDER THE PLAN.
2.7 “COVERED EMPLOYEE” MEANS AN EMPLOYEE OF THE COMPANY WHO IS
IDENTIFIED ON EXHIBIT A TO THIS PLAN OR WHO IS DESIGNATED BY THE ADMINISTRATOR
IN WRITING FROM TIME TO TIME AS A COVERED EMPLOYEE.
2.8 “DIRECTOR” MEANS A MEMBER OF THE COMPANY’S BOARD OF DIRECTORS.
2.9 “DISABILITY” MEANS THAT THE COVERED EMPLOYEE HAS BEEN UNABLE TO
PERFORM HIS OR HER COMPANY DUTIES AS THE RESULT OF HIS OR HER INCAPACITY DUE TO
PHYSICAL OR MENTAL ILLNESS, AND SUCH INABILITY, AT LEAST TWENTY-SIX (26) WEEKS
AFTER ITS COMMENCEMENT OR ONE HUNDRED EIGHTY (180) DAYS IN ANY CONSECUTIVE
TWELVE (12) MONTH PERIOD, IS DETERMINED TO BE TOTAL AND PERMANENT BY A PHYSICIAN
SELECTED BY THE COMPANY OR ITS INSURERS AND ACCEPTABLE TO THE COVERED EMPLOYEE
OR THE COVERED EMPLOYEE’S LEGAL REPRESENTATIVE (SUCH AGREEMENT AS TO
ACCEPTABILITY NOT TO BE UNREASONABLY WITHHELD). TERMINATION RESULTING FROM
DISABILITY MAY ONLY BE EFFECTED AFTER AT LEAST THIRTY (30) DAYS’ WRITTEN NOTICE
BY THE COMPANY OF ITS INTENTION TO TERMINATE THE COVERED EMPLOYEE’S EMPLOYMENT.
IN THE EVENT THAT THE COVERED EMPLOYEE RESUMES THE PERFORMANCE OF SUBSTANTIALLY
ALL OF HIS OR HER DUTIES HEREUNDER BEFORE THE TERMINATION OF HIS OR HER
EMPLOYMENT BECOMES EFFECTIVE, THE NOTICE OF INTENT TO TERMINATE WILL
AUTOMATICALLY BE DEEMED TO HAVE BEEN REVOKED.
2
2.10 “EFFECTIVE DATE” MEANS JUNE 20, 2006.
2.11 “ERISA” MEANS THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS AMENDED.
2.12 “GOOD REASON” MEANS (A) WITHOUT THE COVERED EMPLOYEE’S EXPRESS
WRITTEN CONSENT, A SIGNIFICANT REDUCTION OF THE COVERED EMPLOYEE’S DUTIES,
POSITION OR RESPONSIBILITIES RELATIVE TO THE COVERED EMPLOYEE’S DUTIES, POSITION
OR RESPONSIBILITIES IN EFFECT IMMEDIATELY PRIOR TO SUCH REDUCTION, OR THE
REMOVAL OF THE COVERED EMPLOYEE FROM SUCH POSITION, DUTIES AND RESPONSIBILITIES,
UNLESS THE COVERED EMPLOYEE IS PROVIDED WITH COMPARABLE DUTIES, POSITION AND
RESPONSIBILITIES; PROVIDED, HOWEVER, THAT A REDUCTION IN DUTIES, POSITION OR
RESPONSIBILITIES SOLELY BY VIRTUE OF THE COMPANY BEING ACQUIRED AND MADE PART OF
A LARGER ENTITY SHALL NOT CONSTITUTE A “GOOD REASON”; (B) WITHOUT THE COVERED
EMPLOYEE’S EXPRESS WRITTEN CONSENT, A SUBSTANTIAL REDUCTION, WITHOUT GOOD
BUSINESS REASONS, OF THE FACILITIES AND PERQUISITES (INCLUDING OFFICE SPACE AND
LOCATION) AVAILABLE TO THE COVERED EMPLOYEE IMMEDIATELY PRIOR TO SUCH REDUCTION;
(C) A REDUCTION BY THE COMPANY OF THE COVERED EMPLOYEE’S BASE SALARY AS IN
EFFECT IMMEDIATELY PRIOR TO SUCH REDUCTION; (D) A MATERIAL REDUCTION BY THE
COMPANY IN THE KIND OR LEVEL OF EMPLOYEE BENEFITS TO WHICH THE COVERED EMPLOYEE
IS ENTITLED IMMEDIATELY PRIOR TO SUCH REDUCTION WITH THE RESULT THAT THE COVERED
EMPLOYEE’S OVERALL BENEFITS PACKAGE IS SIGNIFICANTLY REDUCED; OR (E) WITHOUT THE
COVERED EMPLOYEE’S EXPRESS WRITTEN CONSENT, THE RELOCATION OF THE COVERED
EMPLOYEE TO A FACILITY OR LOCATION MORE THAN FIFTY (50) MILES FROM HIS OR HER
CURRENT LOCATION.
2.13 “INVOLUNTARY TERMINATION” MEANS A TERMINATION OF EMPLOYMENT OF A
COVERED EMPLOYEE UNDER THE CIRCUMSTANCES DESCRIBED IN SECTION 4.1.
2.14 “OPTION” MEANS A RIGHT GRANTED PURSUANT TO THE COMPANY’S STOCK
OPTION PLAN(S) TO PURCHASE COMMON STOCK OF THE COMPANY PURSUANT TO THE TERMS AND
CONDITIONS OF SUCH PLAN(S).
2.15 “PLAN” MEANS THE UTSTARCOM, INC. INVOLUNTARY TERMINATION SEVERANCE
PAY PLAN, AS SET FORTH IN THIS DOCUMENT, AND AS HEREAFTER AMENDED FROM TIME TO
TIME.
2.16 “SEVERANCE BENEFIT” MEANS THE COMPENSATION AND OTHER BENEFITS THE
2.17 “SEVERANCE DATE” MEANS THE DATE ON WHICH A COVERED EMPLOYEE
EXPERIENCES AN INVOLUNTARY TERMINATION.
THE COMPANY AS REQUIRED BY SECTION 4.3.
4.1 INVOLUNTARY TERMINATION. IF THE COMPANY (OR ANY PARENT OR
SUBSIDIARY OF THE COMPANY) TERMINATES A COVERED EMPLOYEE’S EMPLOYMENT FOR OTHER
THAN CAUSE, DEATH OR
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DISABILITY, OR THE COVERED EMPLOYEE TERMINATES HIS OR HER EMPLOYMENT WITH THE
COMPANY FOR GOOD REASON, THEN, SUBJECT TO THE COVERED EMPLOYEE’S COMPLIANCE WITH
SECTION 4.3, THE COVERED EMPLOYEE SHALL RECEIVE THE FOLLOWING SEVERANCE BENEFIT
FROM THE COMPANY:
4.1.1 SEVERANCE BENEFIT. EACH COVERED EMPLOYEE SHALL BE ENTITLED TO
RECEIVE A LUMP SUM CASH PAYMENT EQUAL TO (A) ONE (1) YEAR OF BASE PAY AND
(B) ONE HUNDRED PERCENT (100%) OF HIS OR HER TARGET BONUS FOR THE YEAR OF THE
INVOLUNTARY TERMINATION, PAYABLE WITHIN THIRTY (30) DAYS FOLLOWING THE
INVOLUNTARY TERMINATION.
4.1.2 CONTINUED BENEFITS. THE COMPANY SHALL PAY THE PREMIUMS FOR THE
CONTINUED COVERAGE OF EACH COVERED EMPLOYEE (AND ANY ELIGIBLE DEPENDENTS) UNDER
THE COMPANY’S MEDICAL, DENTAL AND VISION PLANS AT THE SAME LEVEL OF COVERAGE IN
EFFECT ON THE SEVERANCE DATE UNTIL THE EARLIER OF (A) TWELVE (12) MONTHS
(PROVIDED THE COVERED EMPLOYEE VALIDLY ELECTS TO CONTINUE COVERAGE UNDER THE
CONSOLIDATED OMNIBUS BUDGET RECONCILIATION ACT (“COBRA”)), OR (B) THE DATE UPON
WHICH THE COVERED EMPLOYEE AND THE COVERED EMPLOYEE’S ELIGIBLE DEPENDENTS BECOME
COVERED UNDER SIMILAR PLANS.
4.1.3 ACCELERATED VESTING OF EQUITY AWARDS. EACH COVERED EMPLOYEE SHALL
FULLY VEST IN AND, IF APPLICABLE, HAVE THE RIGHT TO EXERCISE, ALL OF HIS OR HER
OUTSTANDING AND UNVESTED EQUITY COMPENSATION AWARDS. THE PERIOD OVER WHICH EACH
COVERED EMPLOYEE SHALL BE PERMITTED TO EXERCISE HIS OR HER VESTED EQUITY AWARDS
(INCLUDING AWARDS THAT VEST AS A RESULT OF THE PLAN) SHALL BE AS FOLLOWS:
(A) WITH RESPECT TO EQUITY COMPENSATION AWARDS OUTSTANDING AS OF THE EFFECTIVE
DATE, OR IF LATER, THE DATE A COVERED EMPLOYEE BECOMES A PARTICIPANT IN THE
PLAN, SUCH AWARDS SHALL REMAIN EXERCISABLE UNTIL THE LATEST OF (I) THE FIFTEENTH
(15TH) DAY OF THE THIRD MONTH FOLLOWING THE DATE AT WHICH ANY SUCH EQUITY AWARD
WOULD HAVE OTHERWISE TERMINATED, (II) DECEMBER 31 OF THE YEAR DURING WHICH ANY
SUCH EQUITY AWARD WOULD HAVE OTHERWISE TERMINATED, OR (III) SUCH LONGER PERIOD
OF TIME (NOT TO EXCEED TWELVE (12) MONTHS FROM THE DATE OF TERMINATION) THAT
WOULD BE PERMISSIBLE UNDER SECTION 409A OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE “CODE”) AND ANY TEMPORARY, PROPOSED OR FINAL TREASURY REGULATIONS
AND GUIDANCE PROMULGATED THEREUNDER SO THAT THE EXTENSION OF THE
POST-TERMINATION EXERCISE PERIOD WOULD NOT BE CONSIDERED A MODIFICATION (AS
DETERMINED UNDER SECTION 409A OF THE CODE) OF SUCH EQUITY AWARDS; AND (B) WITH
RESPECT TO EQUITY AWARDS GRANTED TO THE COVERED EMPLOYEE AFTER THE EFFECTIVE
PLAN, SUCH AWARDS SHALL REMAIN EXERCISABLE FOR TWELVE (12) MONTHS FROM THE DATE
OF TERMINATION.
4.2 PARACHUTE PAYMENTS. IN THE EVENT THAT THE SEVERANCE AND OTHER
BENEFITS PROVIDED FOR IN THIS PLAN OR OTHERWISE PAYABLE OR PROVIDED TO THE
COVERED EMPLOYEE (I) CONSTITUTE “PARACHUTE PAYMENTS” WITHIN THE MEANING OF
SECTION 280G OF THE CODE AND (II) BUT FOR THIS SECTION 4.2, WOULD BE SUBJECT TO
EMPLOYEE’S SEVERANCE BENEFITS HEREUNDER SECTION 4 SHALL BE EITHER
4
REDUCE. FOR PURPOSES OF MAKING THE CALCULATIONS REQUIRED BY THIS SECTION 4,2,
CONTEMPLATED BY THIS SECTION 4.2.
EXECUTIVE OFFICERS, IN A FORM REASONABLY SATISFACTORY TO THE COMPANY. NO
SEVERANCE BENEFITS WILL BE PAID OR PROVIDED UNTIL THE WAIVER AND RELEASE
AGREEMENT BECOMES EFFECTIVE.
DATE.
COMPANY OR THE TERMS OF ANY APPLICABLE NONCOMPETITION AGREEMENT WITH THE
COMPANY.
ACTING IN SUCH CAPACITY.
5
ANY DECISION MADE OR OTHER ACTION TAKEN BY THE ADMINISTRATOR WITH RESPECT TO THE
PLAN, AND ANY INTERPRETATION BY THE ADMINISTRATOR OF ANY TERM OR CONDITION OF
THE PLAN, OR ANY RELATED DOCUMENT, WILL BE CONCLUSIVE AND BINDING ON ALL PERSONS
AND BE GIVEN THE MAXIMUM POSSIBLE DEFERENCE ALLOWED BY LAW. THE ADMINISTRATOR
HAS THE AUTHORITY TO ACT FOR THE COMPANY (IN A NON-FIDUCIARY CAPACITY) AS TO ANY
MATTER PERTAINING TO THE PLAN; PROVIDED, HOWEVER, THAT THIS AUTHORITY DOES NOT
APPLY WITH RESPECT TO (A) THE COMPANY’S POWER TO AMEND OR TERMINATE THE PLAN OR
(B) ANY ACTION THAT COULD REASONABLY BE EXPECTED TO INCREASE SIGNIFICANTLY THE
COST OF THE PLAN IS SUBJECT TO THE PRIOR APPROVAL OF THE SENIOR OFFICER OF THE
COMPANY. THE ADMINISTRATOR MAY DELEGATE IN WRITING TO ANY OTHER PERSON ALL OR
ANY PORTION OF HIS OR HER AUTHORITY OR RESPONSIBILITY WITH RESPECT TO THE PLAN.
HER OWN BENEFIT OR ELIGIBILITY UNDER THE PLAN. THE SENIOR OFFICER OF UTSTARCOM,
INC. WILL ACT UPON ANY MATTERS PERTAINING SPECIFICALLY TO THE BENEFIT OR
ELIGIBILITY OF THE ADMINISTRATOR UNDER THE PLAN.
10. AMENDMENT OR TERMINATION. THE COMPANY RESERVES THE RIGHT TO
AMEND, MODIFY OR TERMINATE THE PLAN AT ANY TIME, WITHOUT ADVANCE NOTICE TO ANY
COVERED EMPLOYEE; PROVIDED, HOWEVER, THAT, COMMENCING ON THE DATE OF A CHANGE IN
CONTROL, NO AMENDMENT OR TERMINATION OF THE PLAN SHALL REDUCE THE SEVERANCE
BENEFIT PAYABLE TO ANY COVERED EMPLOYEE (UNLESS THE AFFECTED COVERED EMPLOYEE
CONSENTS TO SUCH AMENDMENT OR TERMINATION). ANY ACTION OF THE COMPANY IN
11.1 AMENDMENT. NOTWITHSTANDING ANYTHING IN THIS PLAN TO THE CONTRARY,
THEREUNDER.
11.2 DISTRIBUTIONS. IN THE EVENT THAT THE ADMINISTRATOR DETERMINES THAT
INVOLUNTARY TERMINATION. FOR THE PURPOSES OF THIS SECTION 11.2, THE TERM
CODE.
AND THE PLAN’S
6
PROCEDURES FOR APPEALING THE DENIAL. THE DENIAL NOTICE WILL BE PROVIDED WITHIN
90 DAYS AFTER THE CLAIM IS RECEIVED. IF SPECIAL CIRCUMSTANCES REQUIRE AN
EXTENSION OF TIME (UP TO 90 DAYS), WRITTEN NOTICE OF THE EXTENSION WILL BE GIVEN
WITHIN THE INITIAL 90-DAY PERIOD. THIS NOTICE OF EXTENSION WILL INDICATE THE
SPECIAL CIRCUMSTANCES REQUIRING THE EXTENSION OF TIME AND THE DATE BY WHICH THE
ADMINISTRATOR EXPECTS TO RENDER ITS DECISION ON THE CLAIM.
UNDER THE PLAN; AND THE PLAN WILL HAVE NO ASSETS, NO RIGHT OF ANY PERSON TO
WITHOUT CAUSE.
7
Plan Name:
Plan Sponsor:
UTStarcom, Inc.
1275 Harbor Bay Parkway
Alameda, CA 94502
Identification Numbers:
EIN2: 5-1782500
PLAN: [__________]
Plan Year:
Calendar year
Plan Administrator:
UTStarcom, Inc.
1275 Harbor Bay Parkway
Alameda, CA 94502
UTStarcom, Inc.
Attention: General Counsel
1275 Harbor Bay Parkway
Alameda, CA 94502
Type of Plan:
Plan Costs
8
22. STATEMENT OF ERISA RIGHTS.
AS A COVERED EMPLOYEE UNDER THE PLAN, YOU HAVE CERTAIN RIGHTS AND PROTECTIONS
UNDER ERISA:
the people who are responsible for the operation of the Plan.. The people who
reasons beyond the control of the Plan Administrator, If you have a claim which
9
23. EXECUTION.
UTStarcom, Inc.
By:
/s/ Francis Barton
Title:
Executive VP, CFO
Date:
July 28, 2006
10
ACKNOWLEDGMENT OF RECEIPT OF
I acknowledge that I have received and read the Company’s Executive Involuntary
Termination Severance Pay Plan.
Name
Title
Date
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Name: Commission Regulation (EEC) No 1849/85 of 2 July 1985 fixing for the 1985/86 marketing year the reference prices for apples
Type: Regulation
Date Published: nan
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EXHIBIT 23.1 Consent of Independent Registered Public Accounting Firm The Board of Directors and Stockholders of Standard Motor Products, Inc. and Subsidiaries: We consent to the incorporation by reference in the registration statements (No. 333-134239 and No. 333-125600) on the Form S-8, and in the registration statement (No. 333-161101) on the Form S-3 of Standard Motor Products, Inc. and subsidiaries of our reports dated March 8, 2013, with respect to the consolidated balance sheets of Standard Motor Products, Inc. and subsidiaries as of December31, 2012 and 2011, and the related consolidated statements of operations, comprehensive income, changes in stockholders’ equity and cash flows, for each of the years in the three-year period ended December31, 2012, and the related consolidated financial statement schedule and the effectiveness of internal control over financial reporting as of December 31, 2012,which reports appear in the December31, 2012 annual report on Form 10-K of Standard Motor Products, Inc. and subsidiaries. /s/ KPMG LLP New York, New York March 8, 2013
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Name: Commission Regulation (EEC) No 3027/93 of 29 October 1993 fixing the aid for cotton
Type: Regulation
Date Published: nan
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Filed by Cordia Bancorp Inc. Pursuant to Rule 425 under the Securities Act of 1933 Subject Company: Bank of Virginia FOR IMMEDIATE RELEASE Tuesday, August 28, 2012 FOR MORE INFORMATION CONTACT: Jack Zoeller, Chairman & CEO, Bank of Virginia President & CEO, Cordia Bancorp 804-763-1333 NEWS RELEASE Bank of Virginia Announces $5 Million Capital Raise, Plan to Reorganize as Wholly Owned Subsidiary of Cordia Bancorp Inc. Positions for strategic growth through additional capital raises and acquisitions MIDLOTHIAN, Va., Aug. 28, 2012 Bank of Virginia (the "Bank") (BOVA) (www.bankofva.com) announced today that its largest shareholder, Cordia Bancorp Inc., has invested an additional $3 million in the Bank.The Bank plans to offer its other existing shareholders the right to invest up to $2 million on the same terms.The Bank also entered into an Agreement and Plan of Share Exchange with Cordia Bancorp pursuant to which each share of the Bank’s common stock held by persons other than Cordia Bancorp would be exchanged for shares of Cordia Bancorp common stock.As a result, the Bank would become a wholly-owned subsidiary of Cordia Bancorp. “Completion of the capital raise will improve Bank of Virginia’s well-capitalized status and support additional loan growth” said Jack Zoeller, President and CEO of Cordia Bancorp and Chairman and CEO of the Bank.“Reorganizing the Bank as a wholly owned subsidiary of Cordia is an essential element of the transaction.It will put the Bank into a better structure to facilitate future capital raises as well as potential future acquisitions of financial institutions.By combining the shareholders of the Bank and the shareholders of Cordia Bancorp, all of our investors will hold their investments in the same entity.” Under the terms of a Stock Purchase Agreement between Cordia Bancorp and the Bank, Cordia Bancorp purchased 4,166,667 shares of common stock of the Bank at the price of $0.72 per share. The Bank plans to raise up to an additional $2 million by issuing up to 2,798,882 common shares in a public rights offering that it expects to begin in the third quarter of 2012.In the rights offering, the Bank will grant to each of its shareholders other than Cordia Bancorp non-transferable rights to purchase .61489 of a share of common stock for each share held. The rights will be distributed to shareholders of record as of September 20, 2012 and may be exercised at $0.72 per share, which is the same price paid by Cordia Bancorp. Simultaneously with the execution of the Stock Purchase Agreement, Cordia Bancorp and the Bank entered into an Agreement and Plan of Share Exchange pursuant to which each outstanding share of Bank common stock owned by persons other than Cordia Bancorp will be exchanged for 0.1328 of a share of Cordia Bancorp common stock.As a result of the share exchange, the Bank would become a wholly owned subsidiary of Cordia Bancorp.Completion of the share exchange is subject to approval of the shareholders of both the Bank and Cordia Bancorp, including approval by a majority of the votes cast by the holders of Bank common stock other than Cordia Bancorp.The share exchange is also subject to listing of the shares of Cordia Bancorp on NASDAQ. In approving the transactions, the board of directors of the Bank received a fairness opinion from Davenport & Company and was represented by Williams Mullen.Cordia Bancorp was represented by Kilpatrick, Townsend & Stockton LLP. About Bank of Virginia Bank of Virginia, a state chartered bank headquartered in Midlothian, Virginia, currently operates four full-service offices in the counties of Chesterfield and Henrico, Virginia. Bank of Virginia's common stock is traded on the NASDAQ stock market under the quotation symbol "BOVA". Additional investor relations information can be found on the internet at www.bankofva.com. Bank of Virginia is a member of the FDIC and Equal Housing Lender. About Cordia Bancorp Cordia Bancorp is a private bank holding company founded in 2009 to bring new leadership and financial strength to undervalued community banks.Cordia purchased 59.8% of the common stock of Bank of Virginia in December 2010.Substantially all of the assets of Cordia consist of its investment in Bank of Virginia, which now totals 10,942,983 shares. Cordia has no material liabilities. As of the date of this release, Cordia has a total of 2,045,605 fully diluted, vested common shares outstanding. Cordia Bancorp Inc. is a Virginia corporation headquartered in Midlothian, Virginia.Additional information can be found on the internet at www.cordiabancorp.com. Forward-looking Statements This news release contains forward-looking statements.These forward-looking statements may include: management plans relating to the transactions; the expected timing of the completion of the transactions; the ability to complete the transactions; the ability to obtain any required shareholder or other approvals; any statements of the plans and objectives of management for future operations any statements of expectation or belief; and any statements of assumptions underlying any of the foregoing.Forward-looking statements are typically identified by words such as “believe,” “expect,” “anticipate,” “intend,” “outlook,” “estimate,” “forecast,” “project” and other similar words and expressions. Forward-looking statements are subject to numerous assumptions, risks and uncertainties, which change over time. Forward-looking statements speak only as of the date they are made.Neither Cordia Bancorp nor Bank of Virginia assume any duty and do not undertake to update forward-looking statements. Because forward-looking statements are subject to assumptions and uncertainties, actual results or future events could differ, possibly materially, from those that Cordia Bancorp or Bank of Virginia anticipated in its forward-looking statements and future results could differ materially from historical performance. Factors that could cause or contribute to such differences include, but are not limited to, the possibility: that expected benefits may not materialize in the timeframe expected or at all; that the transactions may not be timely completed, if at all; that prior to the completion of the transaction or thereafter, Bank of Virginia’s business may not perform as expected due to transaction-related uncertainty or other factors; that required shareholder or other approvals are not obtained or other closing conditions are not satisfied in a timely manner or at all; diversion of management time on transaction-related issues; and those factors and risks referenced from time to time in Cordia Bancorp’s and Bank of Virginia’s filings with the Board of Governors of the Federal Reserve System. For any forward-looking statements made in this press release or in any documents, Cordia Bancorp and Bank of Virginia claim the protection of the safe harbor for forward-looking statements contained in the Private Securities Litigation Reform Act of 1995. Additional Information About the Rights Offering The rights offering described in this new release has not yet commenced.The description of the rights offering is contained herein for informational purposes only and is not an offer to buy or the solicitation of an offer to sell any securities.Bank of Virginia expects to commence the rights offering as soon as practicable.The offering will be made only by means of an offering memorandum. Such offering memorandum will be delivered to holders of Bank of Virginia common stock as of the record date of the rights offering. Additional Information About the Share Exchange and Where to Find It In connection with the proposed share exchange transaction, Cordia Bancorp will file with the Securities and Exchange Commission a Registration Statement on Form S-4 that will include a Proxy Statement of Bank of Virginia, and a Prospectus of Cordia Bancorp, as well as other relevant documents concerning the proposed transaction.Shareholders are urged to read the Registration Statement and the Proxy Statement/Prospectus regarding the merger when it becomes available and any other relevant documents filed with the SEC, as well as any amendments or supplements to those documents, because they will contain important information. When it becomes available, a free copy of the Proxy Statement/Prospectus, as well as other filings containing information about Cordia Bancorp and Bank of Virginia, may be obtained at the SEC’s Internet site (http://www.sec.gov).You will also be able to obtain these documents, free of charge, from Bank of Virginia by accessing Bank of Virginia’s website at www.bankofva.com under the tab “Investor Relations.” Bank of Virginia and certain of its directors and executive officers may be deemed to be participants in the solicitation of proxies from the shareholders of Bank of Virginia in connection with the proposed share exchange.Information about the directors and executive officers of Bank of Virginia is set forth in the proxy statement for Bank of Virginia’s 2012 annual meeting of shareholders, as filed with the Board of Governors of the Federal Reserve System on a Schedule 14A on June 1, 2012.Additional information regarding the interests of those participants and other persons who may be deemed participants in the transaction may be obtained by reading the Proxy Statement/Prospectus regarding the proposed share exchange when it becomes available.Free copies of this document may be obtained as described in the preceding paragraph.
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Appvion, Inc.
Amended and Restated
(Revised and Restated Effective November 4, 2014)
ARTICLE 1.
Purpose and Effective Date
1.1Purpose. The Board adopted the Plan for the purpose of assisting the Company
1.2Effective Date. The effective date of the Plan (the “Effective Date”) is
ARTICLE 2.
Definitions
2.1Board. "Board" means the Board of Directors of Appvion, Inc.
2.2Cause. "Cause" in connection with the termination of the
Committee, based upon any information or evidence reasonably persuasive to the
Page 1 of 1
Development Corp.
2.6Company. "Company" means the affiliated group of corporations, as defined
in Section 1504(a) of the Internal Revenue Code, which includes Appvion, Inc. or
any corporate successor to Appvion, Inc. “Company” also means (except where the
context relates to a Change in Control) any subsidiary or other affiliate of
Appvion, Inc. who employs an Eligible Employee (as designated by the Committee
in accordance with Section 4.1). Any such subsidiary or affiliate of Appvion,
Appvion, Inc. as its agent with respect to amending or terminating the Plan. Any
such action by Appvion, Inc. shall be binding on such subsidiary or affiliate at
the time taken.
Appvion, Inc.
2.8Eligible Employee. "Eligible Employee" means an employee of Appvion, Inc.
Eligible Employee.
of employment” and “termination of employment” shall in all events refer to the
total period of employment with Appvion, Inc. and any of its subsidiaries or
Appvion, Inc., or any of its subsidiaries or affiliates.
2.10 ESOP. "ESOP" means the Appvion, Inc. Retirement Savings and Employee Stock
Ownership Plan.
2.13 Plan. “Plan” means the Appvion, Inc. Long Term Restricted Stock Unit Plan,
2.14 Plan Year. “Plan Year” means the fiscal year of Appvion, Inc.
Page 2 of 2
ARTICLE 3.
Plan Administration
3.1Committee Administration. The Committee shall be responsible for the
policies.
3.3Changes in Capital Structure. If there is a change in the outstanding
Common Stock by reason of the issuance of additional units, recapitalization,
Page 3 of 3
ARTICLE 4.
Participation and Awards
4.1Annual Grants. Restricted Stock Units shall be granted, as of the first day
Company.
Notwithstanding the foregoing, Restricted Stock Units shall not be granted under
the Plan to the extent a Participant elects a deferral of the Participant’s
Restricted Stock Unit award under the terms of the Executive Nonqualified Excess
4.2New Hires and Employment Classification Changes. An individual who becomes a
ARTICLE 5.
5.1Vesting. A Restricted Stock Unit shall be 100% vested upon the completion
forfeited.
5.2Payment For Vested Units. Upon the vesting of Restricted Stock Units
in accordance with Section 5.1, payment, less applicable withholding taxes,
shall be made to the Participant (or to the Participant’s Representative in the
event of the Participant’s death) in a single sum cash payment in an amount
equal to the value of the Restricted Stock Unit as determined under Section 5.3.
This cash payment will be paid in the currency in which such Participant is paid
the majority of his or her remuneration by multiplying the amount by the
appropriate currency exchange rate as posted in the Wall Street Journal on the
last date of the valuation of the Common Stock. Payment will be made as soon as
months following yearend of the taxable year in
Page 4 of 4
which vesting occurred, provided, however, that if it is administratively
impracticable to make the payment by such date, or if the payment would
jeopardize the ability of the Company to continue as a going concern, then such
payment shall be made as soon as administratively practicable or as soon as the
payment would no longer have such effect.
5.3Unit Valuation. The value represented by a Restricted Stock Unit shall be
5.5Change of Control Tax Provisions. If any payments provided to a
Participant under this Plan will be subject to the tax imposed by Section 4999
local taxes.
Page 5 of 5
finally determined.
5.6Forfeitures. Notwithstanding any other provision of the Plan, all rights to
a.
b.
5.7Presumed Competency. Every person receiving or claiming payments under
on which the Company receives a written notice in a form and manner acceptable
to the Company that such person is incompetent and that a guardian, conservator
5.8Forfeiture of Unclaimed Benefits. Each Participant shall keep the
Company informed of his or her current address. The Company shall not be
obligated to search for the whereabouts of any person. If the Company is unable
payment check is not presented for payment, such payment shall be irrevocably
forfeited at the earlier of: (1) the day preceding the date such payment would
otherwise escheat pursuant to any applicable escheat law; or (2) the later of
three (3) years after the date on which the payment was first due or ninety (90)
days after issuance of the check. Forfeited payments shall be returned to the
Company.
Page 6 of 6
ARTICLE 6.
Miscellaneous Provisions
6.1Nonguarantee of Employment. No employee or other person shall have any
6.2No Rights as Shareholder. Restricted Stock Units shall not entitle the
rights of a shareholder in the Company.
6.3Nonassignable . Restricted Stock Units are an unfunded promise to pay and are
6.4Unfunded Plan. The Plan shall at all times be unfunded and no provision shall
under the Plan.
6.5Offsets. As a condition to eligibility to participate in the Plan, each
applicable law.
6.6Limitation of Actions. No lawsuit with respect to any benefit payable or
be forever barred.
6.8Internal Revenue Code Section 409A. The Plan is intended to be exempt from
the coverage of the Internal Revenue Code Section 409A, and shall be
administered and interpreted in such a way as to maintain the status of the Plan
as being so exempt. Any deferral of Restricted Stock Units shall be made under
and governed by the terms, conditions and limitations of the Appvion, Inc.
Executive Nonqualified Excess Plan, as amended, and shall not be made under or
Page 7 of 7
6.9Governing Law; Jurisdiction. The Plan shall be governed by, and construed
with the Plan.
Page 8 of 8
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Title: Father paying Child Support but does not want to see child. Houston, Texas.
Question:I honestly could not figure out the best title for this but, I live in Houston, Texas. I posted on /r/offmychest but maybe I could get some advice here. <b>I did not include the fact that the father was put on child support but was trying to fight it by getting an attorney and taking me to court. Almost a year of fighting, he was finally put on child support.</b> Below is my story.
I got pregnant at the tender age of sixteen. I was still attending high school and my boyfriend at the time was just a year younger than me. We didn't have the most perfect relationship before I got pregnant but we were happy. Being young parents was difficult enough. My parents wanted my boyfriend to live with me to help support and raise our beautiful baby girl together. He moved in a few weeks before our daughter was born and we were both excited to have our little family together.
Fast forward three months after our baby was born, I noticed he became distant and not as affectionate as he used to be. He was working later than I was (we both worked fast food but had different schedules as far as closing time.) I brushed it off as him being tired because of his job and our newborn crying late at night. However, he started spending money, money he didn't have. I was finding myself buying our daughters diapers, formula, wipes, etc., which is not cheap. Feeling like all the weight was on my shoulders, I was looking for a way to relax a little. That's where the regret begins... I was needing attention. Not physical but the emotional attention I was missing out on from my boyfriend. Regretfully, I started talking to another boy. We were texting more and feelings were beginning to set in. Thanksgiving morning I woke up suddenly to a blow on my back. My boyfriend was hysterical and kept yelling out, "Who the fuck is Andrew?!" I was terrified. I knew I made the biggest mistake of my life and I was scared because I got caught. I have never seen this side of my boyfriend before. He grabbed my by the neck and pushed me against the wall yelling obscenities at me. I cried as he finally let go and started to throw anything in reach around. Our daughter was now awake and my boyfriend was talking to her stating, " Your mother is a whore!" The rest of the time was honestly a blur. He finally left and I didn't hear from him for an entire month. He didn't try to contact me about our daughter. He was torn apart and hurt because of me.
Two months later, I found out he had a new girlfriend. He ignored me at school, ignored my phone calls, and bad mouthed me whenever a friend of his asked about our daughter. I was constantly crying and I knew I was the one to blame for breaking my family apart. I wanted him back because I was certain I couldn't raise a baby by myself. However, the day he left, my family had stepped up and helped me with my daughter. I wasn't alone but I was still hurting. After awhile, he started reaching out to me, begging to make up the time he missed being there for our daughter. He also started telling me how much he missed me and wanted to fix through our problems. I dedicated my time to him and our daughter. Everything was going well, or so I thought.
He started hanging out with a different crowd. I was hearing stories from people he associated with. He was doing drugs. When I asked what types of drugs specifically, they usually said weed and the occasional "bars". Everything was falling apart again. We were the on-and-off-again couple and this time we were "on".
I quickly learned more things about him I wish I didn't know. He tried more drugs and eventually moved out of his parents house. He was living in a apartment with a co worker and two of his other friends. During that time, he was high every day and stopped asking about our daughter. He fell off the face of the earth again. The co worker mentioned earlier is now his girlfriend. He was cheating on me with her the entire time he was living at the apartment. He constantly told his friends how much he hated me and how much I ruined his life. He never once came to see his daughter.
By now, I have moved on from him. My main focuses are my daughter, school, and work. Recently, he got into a car accident which resulted in a broken arm. He moved back home with his parents and now he is "back". My daughter just turned two and he is hardly making an effort to see her. I hate him with a passion. Any chance I get, I admittedly put him down. I insult him and feel no remorse for it. He is a eighteen year old drug addict, has no job, puts his girlfriend first and has no future. I know that doesn't justify my excuse but everything he has put me through made me bitter. He will tell me " I don't give a shit about you or what you think of me." I honestly ignore it. He doesn't care about anyone but himself. I took responsibility for my mistake and rose up from it. While he blames me for his life being horrible, I remind him I didn't put the drugs in his hand and tell him to take it. I remind him I never once told him he couldn't be a father. I remind him I am struggling to raise our daughter but I'm still holding my ground.
He still does NOT make an effort to see our daughter but claims he will call the police on me for "keeping" our daughter away from him when, in fact, I have NOT done anything to keep her from him.
If I need to provide more information, please let me know and I will answer them. Thank you.
Answer #1: This might be a fine post for /r/relationships, but geez, so many unnecessary facts.
tl;dr -- mom and dad are teenage parents who broke up and now lie apart. Dad, now allegedly on drugs, pays child support, doesn't want to see the kid, but is threatening the mom with calling the police for not letting him see the kid.
OP -- if there is no court visitation order, you aren't violating anything. If there is an order, you have to make the kid available during scheduled visits. Keep a log of what happens during each scheduled visit so you will have some specific facts for the court, in the unlikely event he gets you back in court.
You should not, ever, badmouth your ex to the kid, or, preferably, anybody except maybe a therapist. Parental alienation is a serious, real thing, most of the perpetrators are women, and it's being taken increasingly seriously. You don't want to create witnesses who can testify that you are attempting to alienate the kid from the dad. If he cleans up his act, it could come back to haunt you.
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Exhibit 10.2
a04302020ex102image1.gif [a04302020ex102image1.gif]
Letter of Terms and Conditions
LOCALIZATION PROGRAM
Padraig McDonnell
26 September 2019
Dear Padraig,
This letter outlines the terms and conditions of your localization for Agilent
Technologies, Inc or any affiliated, subsidiary, or successor employer by which
you are employed (the Company) including compensation, travel, and financial
arrangements.
You will be localized to the United States. Your localization is scheduled to
commence on or about 01 November 2019.
Your Localization will be governed by the terms and conditions of the Agilent
Localization program guidelines. You may view full details of the Localization
program through the Employee and Manager Information (EMI) site at: EMI > My Job
> Job Changes > Mobility > Relocation > Relocation Program. Summaries of those
guidelines as they pertain to your specific transfer are as follows:
Compensation
Your salary will be as indicated on your job offer.
Employee Stock Purchase Plan
If you are participating in the Company’s employee stock purchase plan, your
balance at the home location may be credited to the host location account or
refunded.
Travel
In order to settle personal affairs, organize your origin location housing, and
make arrangements for personal effects, you will be reimbursed for round trip
air travel for yourself and your accompanying family, reasonable ground
transportation and meals during travel. Your travel will be dictated by the
Company’s Global Travel policy and Guidelines.
Taxes
The Company’s tax consultant will prepare your tax return(s) and provide you
with home and host tax consultations for the year of your transfer.
Medical:
The Company strongly recommends that you and your family receive physical
examinations and associated tests in preparation for your international
transfer. You will be reimbursed for the cost of required procedures not covered
by your medical insurance.
Padraig McDonnell – File ID: 3095926
LP-Cork, Ireland to Delaware, USA
Page 1 of 1
Work Permits/ Residence Permits/Visas:
If applicable, Cartus will coordinate with the appropriate party in the host
location to obtain the required visa and permits for you and your family. Your
assignment is contingent upon the issuance of a valid work/residence permit and
visa necessary to legally reside/work in the United States. You must not make
any final plans regarding the timing of your physical relocation until you have
obtained the necessary work/residence permit. Processing times vary greatly
between countries and may be subject to circumstances outside of the Company’
control. You and your accompanying family members will be required to abide by
the terms of the work/residence permit and visa of the host location country.
Depending on the location of your assignment, immigration services will either
be provided by one of the Company’s third-party partners (e.g. Fragomen) or
coordinated with the assistance of Country HR in the host country. You will be
provided with additional contact information shortly.
Localization Allowance
The allowance is intended to assist in paying for any incidental expenses
involved in establishing a residence at a new location; changing driver's
license, small appliances, small furnishings, etc. The allowance will equal one
month’s base salary and will be paid after transfer to the payroll of the new
location. Please note that you are responsible for the taxes on this allowance.
Shipment of Personal Effects
the Company will assume reasonable expenses incurred for insuring and shipping a
limited amount (refer to Localization program guidelines) of personal effects to
the host location. The Company will also cover normal import duties and other
expenses if necessary for the actual delivery of these goods. It is recommended
that you review the Localization program details for a list of items that the
Company will neither ship nor cover import duties or taxes for.
You are eligible for 9,000 lbs. Surface/Sea Shipment and 500 lbs. Air Shipment.
Should you choose to place any personal goods into storage in Ireland, you will
be responsible for any costs associated with such storage.
Local Household Goods and Personal Effects Move:
If you move to a different accommodation in the Destination Location, the
Company will arrange for the shipment of your household goods and personal
effects in your current residence to your new residence in the Destination
Location.
Paid Time Off
All remaining earned vacation days in the home country should be cleared before
your localization as there will be no carry-forward. Alternatively, the home
location may pay you for any earned vacation not taken at time of transfer from
the country of origin, unless this is restricted by country of origin
regulations.
Other
Your employee benefits such as medical coverage, vacation, etc., will be in
accordance with the programs at the host location.
Voluntary Termination:
In the event that you resign within twelve months of transferring to your new
location, you may be required to reimburse the Company for the relocation
expenses and benefits paid to you or on your behalf by the Company. Any
benefits or relocation expenses paid to you as a result of your relocation
Page 2 of 2
will be pro-rated in an amount equal to 1/12 of the total bonus and expense
payment for every month less than 12 worked by you.
Involuntary Termination:
If your employment is terminated at the Company’s initiation prior to receipt of
your permanent residency, except for dismissal due to violation of the Company
Standards of Business Conduct, or any misconduct as determined by local entity
work rules or regulations, as well as local country laws, the company will pay
return relocation allowance, the costs to move you and your family and your
possessions, back to the home location according to the travel policy. However,
if you elect not to return within 90 days of termination, Company reimbursement
of travel and shipping costs will no longer be available. You are obligated to
provide post-employment contact information to the Company’s tax service
provider so the year-end tax reconciliation of your assignment expenses can be
completed.
Agilent complies with the Sarbanes-Oxley Act of 2002. This act prohibits
companies with public stock or debt listed or traded in the U.S. from extending
or arranging, directly or indirectly (including through a subsidiary), personal
loans to directors or executive officers. This means that neither the Company
nor the Relocation Provider may loan/advance funds for any reason, e.g. home
purchase down payments etc. to officers of the company. Advances of amounts
that are not repayable by the employee may be permitted, but will be reviewed on
Kindly acknowledge receipt and acceptance of the above terms. Please forward a
signed copy to your consultant, Adeel Syed, at email address
Adeel.Syed@Cartus.com.
By accepting the above terms, you also consent to the electronic transfer and
use of appropriate employment data and relevant other personal and family
information by Cartus and the Company, for the sole purpose of administering
this relocation.
Please contact your Cartus Relocation Consultant, Adeel Syed, directly at
203-205-8623, with questions relating to your Localization.
Sincerely,
/s/ Mark Doak 9/30/2019
_______________________________________
Mark Doak (signature) Date
Agilent Technologies
APPROVAL & ACCEPTANCE
/s/ Padraig McDonnell 10/18/2019
_______________________________________
Padraig McDonnell (signature) Date
This signature denotes that you have read and
understand the Localization Program
and this Terms and Conditions Letter.
Page 3 of 3 |
Title: MA - Friend took in a dog from someone who now wants the dog back
Question:Hi all, just looking for some advice for a friend. She runs a dog daycare and has been for a few years. A client of hers who was also a friend of hers has been an addict and gave the dog to my friend so my friend could give the dog a good home. Now after 6-8 months that friend wants the dog back.
As far as I am aware there was never any written contract about surrendering the dog to her or giving her the dog to foster. The original owner of the dog now lives in another state and may or may not be drug free and be able to provide a good home for the dog.
Are there any abandonment laws that would give my friend a legal leg to stand on? My friend has invested several thousand dollars into this dog and has become attached and does not want to give the dog back if she absolutely does not have to.
Thanks!
Answer #1: At least in my state dogs are property like a TV. It's no longer her TV she gave it to me. Let her sue. She won't. |
EXHIBIT 10.3
12920 SE 38th Street
Bellevue, WA 98006-1350
April 28, 2018
David Carey
c/o T-Mobile US, Inc.
12920 SE 38th Street
Re: Severance Benefits
Dear David:
T-Mobile US, Inc. (the “Company”) is pleased to inform you that, in connection
with the Company’s entrance into that certain Business Combination Agreement
with Sprint Corporation and certain other parties named therein, dated on or
around the date hereof (the “Business Combination Agreement”), the Company has
determined that you will be eligible for certain severance payments and benefits
in connection with a Qualifying Termination (as defined below), upon and subject
to the terms and conditions set forth in this letter agreement (this “Letter”).
Capitalized terms used in this Letter will have the meanings set forth on
1.Severance Benefits. In the event that your employment is terminated by the
Company other than for Cause or you resign for Good Reason, in either case, upon
or within twelve (12) months following the Transaction Date (each, a “Qualifying
Termination”), then, subject to your execution and non-revocation of a Release
in accordance with Section 2 below and your compliance with the other terms,
conditions and requirements specified herein (including Section 3 below), the
Company shall pay or provide to you the following (the payments and benefits in
clauses (a) through (g) below, collectively, the “Severance Benefits”):
(a) The Company shall pay you an amount equal to two (2) times the sum of
(ii) your then-current annual base salary plus (ii) your then-current target
annual short-term incentive award (“STI Award”), payable in a single lump-sum
amount within seventy-four (74) days following the Termination Date.
(b) The Company shall pay you a pro-rated STI Award for the calendar year in
which the Termination Date occurs, based on the number of days in such calendar
year through and including the Termination Date divided by 365 (or 366, as
applicable) and based on actual performance results for such calendar year as
determined by the Company, payable no later than March 15th of the calendar year
(c) The Company shall pay you any earned, unpaid STI Award for the calendar
year ending immediately prior to the calendar year in which the Termination Date
occurs, payable in a single lump-sum amount within seventy-four (74) days
(d) During the period commencing on the Termination Date and ending on the
earlier of the end of the eighteenth (18th) full calendar month following the
Termination Date or the date on which you become eligible for coverage under a
subsequent employer’s group medical and dental plans (in either case, the “COBRA
Period”), subject to your valid election to continue healthcare coverage under
COBRA, the Company will continue to provide to you and your dependents, at the
Company’s sole expense, coverage under its group medical and dental plans at the
same levels in effect on the Termination Date; provided, however, that if (i)
the expiration of the continuation coverage period to be, exempt from the
(ii) the Company is otherwise unable to continue to cover you or your dependents
under its group health plans, or (iii) the Company cannot provide the benefit
you in substantially equal, then-currently-taxable monthly installments over the
COBRA Period (or remaining portion thereof). In the event the Company-subsidized
portion of the coverage cost paid on you or your dependents’ behalf during the
COBRA Period, as described above, would cause you to be taxable on
reimbursements under the applicable plans by reason of the application of
Section 105(h) of the Code (and the Company is not paying such amounts to you in
then-currently-taxable monthly installments as contemplated by the preceding
sentence), such Company-subsidized portion of the coverage cost will to be
imputed as taxable income to you.
(e) The Company shall, at its sole expense and on an as-incurred basis,
provide you with outplacement counseling services directly related to your
Qualifying Termination, for up to twelve (12) months following the Termination
Date, the provider of which shall be selected by the Company.
(f) Each outstanding long-term incentive or other equity award covering
shares of the Company’s common stock (each, an “LTI Award”) which is not subject
to any performance vesting conditions as of the Termination Date shall vest in
full (to the extent then-unvested) on the Release Effective Date (as defined
below) (and shall remain outstanding and eligible to vest on the Release
Effective Date).
(g) Each outstanding LTI Award (or portion thereof) which is subject to one
or more performance vesting conditions as of the Termination Date shall become
earned and vested as of the Release Effective Date (and shall remain outstanding
and eligible to vest on the Release Effective Date) based on the actual level of
actual performance determined as if the performance period in effect as of the
Termination Date had ended as of the last trading day immediately preceding the
Termination Date, with such vested and earned LTI Award payable no more than
sixty (60) days following the applicable vesting date (unless subject to any
deferral of earned and vested awards elected by you in accordance with the terms
of the applicable LTI Award agreement(s), in which case such deferral shall
dictate payment timing).
2. Release. As a condition to your receipt of the Severance Benefits
described above, you must execute and deliver to the Company a release of all
claims in a form determined solely by the Company (the “Release”), and such
Release must become fully effective and irrevocable (including due to the
expiration
of any revocation period) no later than seventy-four (74) days following the
Termination Date (the date on which the Release becomes effective and
irrevocable, the “Release Effective Date”). If the aggregate period during which
you are entitled to consider and/or revoke the Release spans two calendar years,
no payments under Section 1 above will be made prior to the beginning of the
second such calendar year (and any payments otherwise payable prior thereto (if
occurring in the latter such calendar year or, if later, on the first regularly
scheduled Company payroll date following the Release Effective Date).
3. Restrictive Covenants. To protect the trade secrets and confidential
information of the Company and its customers and clients that have been and will
be entrusted to you, the business goodwill of the Company and its subsidiaries
that has been and will be developed in and through you and the business
opportunities that have been and will be disclosed or entrusted to you by the
Company and its subsidiaries, and as an additional incentive for the Company to
enter into this Letter, and without limiting any provision of your
confidentiality, restrictive covenant or similar agreement with the Company (or
an affiliate thereof) (your “Restrictive Covenant Agreement”), you hereby agree
as follows:
(a)Non-Competition. During the term of your employment and for a period of (i)
if you incur a Qualifying Termination upon or within twelve (12) months
following the closing of the Transaction, eighteen (18) months immediately
following your Qualifying Termination or (ii) if you incur a Qualifying
Termination upon or within twelve (12) months following the date on which the
Company publicly announces that the Transaction will not close (as determined by
the Company in its discretion), twelve (12) months immediately following your
Qualifying Termination (which is consistent with the Company’s existing
practices) (in either case, the “Restricted Period”) you shall not either
directly or indirectly, with or without compensation: (A) engage in, provide,
offer to provide, or assist anyone in providing, services to or for a business,
entity or individual that is substantially the same as or similar to the
Company’s Business or that competes with the Company’s Business, directly or
indirectly, in the geographic areas where the Company conducts business; or (B)
compete with the Company, its affiliates or its dealers within the geographic
areas where such entities provide or are permitted to provide services.
(b)Non-Solicitation. During the Restricted Period, neither you nor any person or
entity otherwise connected with you shall directly or indirectly solicit or aid
others in soliciting, or otherwise assist Customers in obtaining service
provided through any competitor of the Company in those markets being serviced
by the Company, including but not limited to others providing the services of
the type(s) described as the Business on Exhibit A attached hereto. During that
portion of the Restricted Period following your Qualifying Termination, you
shall not interfere with any established business relationship between the
Company and any of its Customers, shall not call upon any Customer of the
Company’s Business for the purpose of soliciting, selling, providing or
delivering services or products of the kind which are the subject of the
Company’s Business, and shall not render or provide any service to any Customer,
including any person who was a Customer of the Company during the time that you
were employed with the Company, that is the same as or similar to the service
provided in the Company’s Business. In addition, during the Restricted Period,
neither you nor any person or entity otherwise connected with you shall act,
directly or indirectly, as a
reseller or dealer of any such service in the geographic area where the Company
provides or is permitted to provide service. You agree that while employed by
the Company and during the Restricted Period, you shall not directly or
indirectly induce or attempt to influence any employee of the Company to
terminate his or her employment with the Company or to work for you or any other
person or entity. You further agree to provide any potential future employer who
provides any service described in the definition of “Business” with a copy of
this Letter before you begin employment with any such person or entity.
(c)Reasonableness. You acknowledge that the restrictions contained in this
Letter are reasonable in time, scope and geographic restraints, and do not
unreasonably restrict your ability to obtain other employment. You further
warrant that the restrictions do not impose an undue hardship on you, and do not
deprive you of an ability to earn a living.
(d)Remedies. In the event of any breach or threatened breach of any of the
provisions of Section 3(a) or (b) above, in addition to any other rights or
remedies available to the Company, the Company shall have the right to seek
monetary damages and equitable relief, including specific performance by means
of temporary, preliminary or permanent injunctions against you or against your
partners, agents, representatives, servants, employers, employees, family
members and/or any and all persons acting directly or indirectly by or with you,
to prevent or restrain such breach. With respect to any such equitable actions
or proceedings, you agree that no adequate legal remedy exists, and hereby waive
any defense that an adequate remedy at law exists and any requirement that the
Company prove damages. You further waive any requirement that the Company
furnish any bond or other security, and agree that to the extent a bond is
nevertheless required by law, it shall be in the amount of $100.00. You agree
that the Company’s right to seek injunctive and other equitable relief shall be
and are cumulative and not exclusive and shall be in addition to any other
remedies that the Company may have.
4. Limitations. For clarity, if your employment terminates for any reason
other than due to a Qualifying Termination (including, without limitation, (a)
due to your death or disability, (b) due to a termination by the Company for
Cause, (c) due to a resignation by you without Good Reason, (d) due to your
retirement (as determined by the Company), or (e) due to a termination by the
Company without Cause or a resignation by you for Good Reason, in either case,
prior to or more than twelve (12) months following the Transaction Date), you
shall not be entitled to receive any Severance Benefits under this Letter, and
the Company shall not have any obligation to you hereunder.
5. No Duplication of Benefits. The Severance Benefits set forth in this
Letter represent the sole and exclusive severance payments and benefits that you
are eligible to receive upon a Qualifying Termination. If, upon a Qualifying
Termination, you would otherwise become entitled to receive any severance
payments or benefits (including any accelerated vesting) under any other plan,
program, agreement or arrangement maintained by the Company or its affiliates in
which you are eligible to participate or to which you are a party (including,
without limitation, the Company’s 2013 Omnibus Incentive Plan, any short-term
incentive or long-term-incentive award agreement between you and the Company or
any employment agreement or compensation term sheet between the Company and you)
(each, a “Severance Program”), then by signing this Letter, you acknowledge and
agree that, except as expressly contemplated
by Section 6 below, you will not be eligible to receive any severance payments
or benefits under such Severance Program and instead will be entitled to receive
only the Severance Benefits set forth herein.
6. No Deprivation of Benefits. Notwithstanding Section 5 above, to the extent
that any Severance Program provides for more favorable treatment of your STI
Award(s) and/or LTI Award(s) upon a termination of your employment by the
Company without Cause or by you for Good Reason than the terms of this Letter
and such treatment would (absent Section 5 above) apply to you upon your
Qualifying Termination, the terms of the Severance Program shall control. For
the avoidance of doubt, this Letter is not intended to deprive you of any right,
entitlement or protection (e.g., indemnification and insurance), in any case,
that is not inconsistent with this Letter and that you may have under any other
agreement, plan, or policy of the Company applicable to you that may provide
more favorable treatment to you than this Letter, nor is it intended to and
shall not exclude you from eligibility to receive any employee benefits,
including any employee benefits that provide for more favorable treatment to you
than this Letter (provided that such benefits would not result in you receiving
a duplication of severance or any other benefits) that may in the future be
broadly provided to similarly-situated executives.
7. Term. This Letter shall become effective on date on which the Business
Combination Agreement is fully executed (or, if later, the first date on which
it has been executed by both you and the Company). This Letter shall
automatically terminate and be of no further force or effect on the earlier of
(i) your Termination Date or (ii) 5:00 p.m. Pacific Time on the twelve
(12)-month anniversary of the Transaction Date (the “Expiration Time”) or, if
the Company becomes obligated to pay (in connection with such termination) or is
paying or providing Severance Benefits hereunder at such time, on the last date
on which such Severance Benefits are paid or provided to you in accordance with
Section 1 above. Notwithstanding the foregoing, Sections 8-14 hereof and, only
if you incur a Qualifying Termination prior to the Expiration Time, Sections 3-6
hereof, shall survive termination of this Letter and remain in effect in
8. Representations. By signing this Letter below, you hereby represent and
warrant to the Company that (i) you have read and understand, and accept the
terms and conditions set forth in, this Letter, and (ii) you have entered into
and agreed to the terms and conditions of this Letter voluntarily.
9. No Tax Advice. The Company is not making any warranties or
representations to you with respect to the income tax consequences associated
with this Letter or the Severance Benefits payable thereunder and you are in no
manner relying on the Company, its affiliates or any of their respective
representatives for an assessment of such tax consequences. You are hereby
advised to consult with your own tax advisor with respect to any tax
consequences associated with the Severance Benefits.
10. Sections 409A and 280G. The payments and benefits described in this
Letter are intended to comply with or be exempt from Section 409A of the
Internal Revenue Code of 1986, as amended (“Section 409A”). See Exhibit B, which
is hereby incorporated into this Letter, for additional details. In addition,
you acknowledge and agree that the payments and benefits described in this
Letter (in addition to any other
payments and benefits payable to you by the Company or any affiliate thereof)
may be subject to reduction as set forth on Exhibit C, which is hereby
incorporated into this Letter.
11. Miscellaneous. This Letter, together with your Restrictive Covenant
Agreement and any other agreements referenced herein, sets forth the final and
Letter may be amended only in a writing signed by you and an authorized officer
of the Company. This Letter may be executed in one or more counterparts, each of
one and the same instrument. This Letter shall be governed by and construed in
principles of conflicts of laws, and applicable federal law. Nothing contained
in this Letter shall confer upon you any right to continue in the employ or
service of the Company or affect the right of the Company to terminate your
conditions set forth in this Letter by signing and dating this Letter in the
space below and returning a signed copy to Liz McAuliffe.
Sincerely,
By: /S/ Elizabeth McAuliffe _________________
Name: Elizabeth McAuliffe
Acknowledged, Agreed and Accepted:
/s/ David Carey_____________________
Name: David Carey
Date: April 28, 2018
Exhibit A
Definitions
1.1 “Business” means the business of offering, providing and marketing to,
and procuring, retail and wholesale customers for commercial mobile radio
service (CMRS), including without limitation, cellular telephone service,
personal communications service (PCS) and other wireless voice and data
services, including, without limitation, (i) paging, messaging, radio,
telephone, internet, voice over internet protocol (VOIP), Wi-Fi, Mobile Virtual
Network Operator (MVNO), Telemetry (machine-to-machine) services, and ancillary
services and applications, as they exist now and may be later developed, and
(ii) the sale of all services, products, devices and other hardware used in
connection with the services described above.
1.2 “Cause” means any one or more of the following: (i) your gross neglect or
willful material breach of your principal employment responsibilities or duties,
(ii) a final judicial adjudication that you are guilty of any felony (other than
offense that has no material adverse effect on the Company or any of its
affiliates), (iii) your breach of any non-competition or confidentiality
covenant between you and the Company or any affiliate of the Company, (iv)
fraudulent conduct as determined by a court of competent jurisdiction in the
course of your employment with the Company or any of its affiliates, (v) the
material breach by you of any other obligation which continues uncured for a
period of thirty (30) days after notice thereof by the Company or any of its
affiliates and which is demonstrably injurious to the Company or affiliate.
1.1 “COBRA” means the Consolidated Omnibus Budget Reconciliation Act of 1985.
1.3 “Customers” shall mean all customers and subscribers for whom the
Company, you, or the Company’s other employees, agents or independent
contractors perform services or make sales in the course of business (during,
before and after your employment with the Company).
1.4 “Good Reason” means the occurrence of any of the following conditions
about which you notify the Company within not more than ninety (90) days after
initial existence and which the Company does not cure within thirty (30) days of
such notice: (i) a material diminution in your duties, authority or
responsibilities; (ii) a material reduction in your annual base salary, target
short-term incentive award opportunity, or target long-term incentive
opportunity, except for across-the-board salary reductions based on the
Company’s and subsidiaries’ financial performance similarly affecting all or
substantially all management employees of the Company and its subsidiaries;
(iii) the relocation of the office at which you were principally employed as of
the Transaction Date to a location more than fifty (50) miles from the location
of such office, or you being required to be based anywhere other than such
office, except to the extent you were not previously assigned to a principal
location and except for required travel on business to an extent substantially
consistent with your business travel obligations as of the Transaction Date; or
(iv) such other event, if any, as is set forth as “good reason” or “constructive
termination” in your individual employment agreement or compensation term sheet
(as applicable) with the Company.
1.5 “Termination Date” means the effective date of your termination of
1.6 “Transaction” means, collectively, the transactions contemplated by the
Business Combination Agreement.
1.7 “Transaction Date” means the first to occur of (i) the date on which the
Transaction closes or (ii) the date on which the Company publicly announces that
the Transaction will not close (as determined by the Company in its discretion).
Exhibit B
Section 409A
It is intended that the payments and benefits under this Letter comply with the
provisions of Section 409A and the Treasury regulations relating thereto, or
extent applicable to this Letter and, accordingly, to the maximum extent
permitted, this Letter shall be interpreted and be administered in a manner to
employment with the Company for purposes of this Letter, and no payment
Letter, until you would be considered to have incurred a “separation from
Service”). Any payments described in this Letter that qualify for the
short-term deferral exception), each payment under this Letter will be treated
as a separate payment. Notwithstanding anything to the contrary in this Letter
(whether under this Letter or otherwise), to the extent delayed commencement of
any portion of the payments to be made to you upon your Separation from Service
Code, such portion of the payments shall be delayed and paid on the first
such Separation from Service or (ii) your death. Notwithstanding anything
accelerated taxation and/or tax penalties under Section 409A, amounts
reimbursable to you under this Letter shall be paid to you on or before the last
subsequent year and may not be liquidated or exchanged for any other benefit.
Exhibit C
Section 280G
distributed or distributable pursuant to the terms of this Letter or otherwise
to you under this Letter or otherwise constitutes a “parachute payment” under
Section 280G of the Code, the amount payable to you shall be either (a) paid in
full, or (b) paid after reduction by the smallest amount as would result in no
portion thereof being subject to the excise tax under Section 4999 of the Code,
state and local income taxes and the excise tax under Section 4999 of the Code,
results in the receipt by you, on an after-tax basis, of the greater net value,
notwithstanding that all or some portion of such payment amount may be taxable
writing, all determinations required to be made under this paragraph, including
the manner and amount of any reduction in your payments hereunder, and the
independent public accounting firm immediately prior to the event giving rise to
such payment (the “Accounting Firm”); provided, however, that no such reduction
or elimination shall apply to any non-qualified deferred compensation amounts
(within the meaning of Section 409A of the Code) to the extent such reduction or
does not comply with Section 409A of the Code. For purposes of making the
calculations required by this paragraph, the Accounting Firm may make reasonable
4999 of the Code. The Company and you shall furnish to the Accounting Firm such
a determination under this paragraph. The Accounting Firm shall provide its
written report to the Committee and you, which shall include information
regarding methodology. The Company shall bear all costs the Accounting Firm may
paragraph. You and the Company shall cooperate in case of a potential Change in
Control (as defined in the Company’s 2013 Omnibus Incentive Plan) to consider
|
Exhibit 10.1
FIRST AMENDMENT TO
LOAN AND SECURITY AGREEMENT
entered into as of June 30, 2017, by and between SILICON VALLEY BANK, a
CA 95054 (“Bank” or “SVB”), as collateral agent (in such capacity, “Collateral
collectively, the “Lenders”) including Bank in its capacity as a Lender and
SOLAR CAPITAL LTD., a Maryland corporation with an office located at 500 Park
Avenue, 3rd Floor, New York, New York 10022 ( “Solar”) and ATYR PHARMA, INC., a
Delaware corporation with offices located at 3545 John Hopkins Court, Suite 250,
San Diego, CA 92121 (“Borrower”).
Recitals
Security Agreement dated as of November 18, 2016 (as amended from time to time,
Loan Agreement.
C.Borrower has requested that Collateral Agent and Lenders (i) modify the Second
Draw Period and (ii) make certain other revisions to the Loan Agreement as more
Agreement
follows:
2.1Section 2.2(d) (Permitted Prepayment of Term Loans). Section 2.2(d) is
hereby amended by adding “(other than a prepayment of the Term B Loans as
permitted by Section 6.14)” after “all, but not less than all” therein.
2.2Section 6.14 ([***]). New Section 6.14 hereby is added to the Loan Agreement
“6.14
[***].Borrower shall achieve the [***] by no later than August 31, 2017. If
Borrower fails to achieve the [***] by August 31, 2017, it shall not be an Event
of Default if Borrower immediately cash secures the principal balance of all
outstanding Term B Loans in the Pledged Account until the date on which Borrower
achieves the [***]; provided, however, that if Borrower does not achieve the
[***], Borrower may prepay on or before October 31, 2017, the Term
1
* Confidential information, indicated [***], has been omitted from this filing
B Loans in accordance with Section 2.2(d). Borrower hereby authorizes Bank to
transfer to the Pledged Account an amount equal to the principal amount of all
outstanding Term B Loans if Borrower fails to achieve the [***] by August 31,
2017.”
Section 8.2 (Covenant Default). Section 8.2(a) hereby is amended and restated
“(a)
Borrower or any of its Subsidiaries fails or neglects to perform any obligation
(Insurance), 6.6 (Operating Accounts), 6.7 (Protection of Intellectual Property
Rights), 6.9 (Notice of Litigation and Default), 6.10 (Phase 1 Trial
Initiation), 6.11 (Landlord Waivers; Bailee Waivers), 6.12 (Creation/Acquisition
of Subsidiaries); 6.13 (Further Assurances) or 6.14 ([***]) or Borrower violates
“Amortization Date” is December 1, 2017; provided that, if Borrower achieves the
[***], the “Amortization Date” shall be June 1, 2018.
“[***]” is the [***] Borrower, on or after the First Amendment Effective Date
and no later than October 31, 2017, of [***].
“First Amendment Effective Date” is June 30, 2017.
“Pledged Account” means Borrower’s restricted account number ******9636 held at
Bank.
executed by Borrower in favor of Bank as of the First Amendment Effective Date.
(i)
for a prepayment made on or after the Effective Date up to but not including the
first anniversary of the Effective Date, three percent (3.00%) of the principal
amount of the Term Loans prepaid;
(ii)
for a prepayment made after the date on or after the first anniversary of the
Effective Date up to but not including the second anniversary of the Effective
(iii)
for a prepayment made on or after the date which is after the second anniversary
Loans prepaid;
provided that, with respect to the Term B Loans, Lenders shall waive the
Prepayment Fee if (a) Borrower does not achieve the [***] and (b) the Term B
Loans are prepaid by no later than October 31, 2017.
“Second Draw Period” is the period commencing on the First Amendment Effective
Date and ending on the earlier of (i) June 30, 2017 and (ii) the occurrence of
commence if on the date of the occurrence of the Second Draw Period Milestones
2
“Third Draw Period Milestones” is the achievement of each of the following: (i)
positive Phase 1b/2 interim data readout from Resolaris trial for either (a)
adult facioscapulohumeral muscular dystrophy, (b) early onset
facioscapulohumeral muscular dystrophy or (c) limb-girdle muscular dystrophy;
and (ii) either (x) initiation of “iMod.Fc” Phase 1 clinical trial within the
United States or the European Union or (y) either (I) thirty days have elapsed
from the Food and Drug Administration’s receipt of an exploratory initial
investigational new drug application in connection with the iMod.Fc clinical
trial (provided, that the achievement of the Third Draw Period Milestones shall
not occur in the event of an issuance by the Food and Drug Administration during
such thirty day period of notice that such clinical trial is subject to a
clinical hold under 21 C.F.R. § 312.42 until the earlier of (A) such time as
such clinical hold expires or is otherwise terminated or (B) the Third Draw
Period has expired), or (II) evidence of approval from the European Medicines
Agency for a clinical trial authorization in connection with the iMod.Fc
clinical trial; each in form and content reasonably acceptable to Collateral
2.4Section 13.1 (Definitions). The following term and its respective definition
set forth in Section 13.1 of the Loan Agreement hereby is deleted in its
entirety:
“Second Draw Period Milestones”
2.5Exhibit C of the Loan Agreement hereby is replaced in its entirety with
and is continuing;
Amendment;
Amendment, do not and will not contravene
3
(a) any material Requirement of Law, (b) any material agreement with a Person
Borrower, except as could not reasonably be expected to have a Material Adverse
Effect or (d) the organizational documents of Borrower;
Borrower, except as have been obtained and are in full force and effect or are
being obtained pursuant to Section 6.1(b) of the Loan Agreement or which the
Adverse Effect; and
rights.
each party hereto, (ii) Corporate Borrowing Certificate attached hereto, (iii)
the Pledge Agreement in favor of Bank along with Annex A thereto and (iv)
Borrower’s payment of all reasonable documented out-of-pocket Lenders’ Expenses
4
SILICON VALLEY BANK
By: /s/ Anthony Flores
Name:Anthony Flores
Title:Director
LENDER:
SOLAR CAPITAL LTD.
By: /s/ Neil J. Bonanno
Name:Neil J. Bonanno
Title:Authorized Signatory
BORROWER:
By: /s/ Nancy D. Krueger
Name:Nancy D. Krueger
Title:VP Legal Affairs and Secretary
EXHIBIT C
Compliance Certificate
TO:
SOLAR CAPITAL LTD., as Lender
FROM:
The undersigned authorized officer (“Officer”) of ATYR PHARMA, INC.
Lenders.
statements.
Reporting Covenant
Requirement
Actual
Complies
1)
Financial statements
Quarterly within five (5) days after filing with the SEC
Yes
No
N/A
2)
Earlier of (x) 180 days after FYE or (y) within five (5) days after filing with
the SEC
Yes
No
N/A
3)
Annually, within earlier of (i) 60 days after FYE and (ii) 7 days of board
approval, and when revised
Yes
No
N/A
4)
If applicable
Yes
No
N/A
5)
within 5 days of filing
Yes
No
N/A
6)
Compliance Certificate
Quarterly within five (5) days after filing financial statements with the SEC
Yes
No
N/A
7)
measurement period
$________
8)
$________
Financial Covenants
Covenant
Requirement
Actual
Compliance
1)
[***] (See Section 6.14)
$_________
Yes
No
N/A
Deposit and Securities Accounts
Institution Name
Account Number
New Account?
1)
Yes
No
Yes
No
2)
Yes
No
Yes
No
3)
Yes
No
Yes
No
4)
Yes
No
Yes
No
Other Matters
1)
Have there been any changes in any Responsible Officer since the last Compliance
Certificate?
Yes
No
2)
Yes
No
3)
Yes
No
4)
this Compliance Certificate.
Yes
No
Exceptions
space needed.)
By
Name:
Title:
Date:
LENDER USE ONLY
Received by:
Date:
Verified by:
Date:
Compliance Status:YesNo
|
Name: Directive (EU) 2019/983 of the European Parliament and of the Council of 5 June 2019 amending Directive 2004/37/EC on the protection of workers from the risks related to exposure to carcinogens or mutagens at work (Text with EEA relevance)
Type: Directive
Subject Matter: iron, steel and other metal industries; health; organisation of work and working conditions; chemistry; technology and technical regulations; deterioration of the environment
Date Published: 2019-06-20
20.6.2019 EN Official Journal of the European Union L 164/23 DIRECTIVE (EU) 2019/983 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 5 June 2019 amending Directive 2004/37/EC on the protection of workers from the risks related to exposure to carcinogens or mutagens at work (Text with EEA relevance) THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on the Functioning of the European Union, and in particular point (b) of Article 153(2), in conjunction with point (a) of Article 153(1) thereof, Having regard to the proposal from the European Commission, After transmission of the draft legislative act to the national parliaments, Having regard to the opinion of the European Economic and Social Committee (1), After consulting the Committee of the Regions, Acting in accordance with the ordinary legislative procedure (2), Whereas: (1) Delivering on the European Pillar of Social Rights (3), proclaimed by the European Parliament, the Council and the Commission at the Social Summit for Fair Jobs and Growth in Gothenburg on 17 November 2017, is a shared political commitment and responsibility. Principle 10 of the European Pillar of Social Rights provides that workers have the right to a healthy, safe and well-adapted work environment. The right of workers to a high level of protection of their health and safety at work and to a working environment adapted to their professional needs also includes protection from carcinogens and mutagens at the workplace, irrespective of the duration of the employment or of the exposure. (2) This Directive respects fundamental rights and observes the principles recognised in the Charter of Fundamental Rights of the European Union, in particular the right to life and the right to fair and just working conditions provided for, respectively, in Articles 2 and 31 thereof. (3) Directive 2004/37/EC of the European Parliament and of the Council (4) aims to protect workers against risks to their health and safety from exposure to carcinogens or mutagens at the workplace. A consistent level of protection from the risks related to carcinogens and mutagens is provided for in that Directive by a framework of general principles to enable Member States to ensure the consistent application of minimum requirements. The aim of those minimum requirements is to protect workers at Union level and to contribute to reducing differences in the levels of protection of workers across the Union and to ensuring a level playing field. Binding occupational exposure limit values are important components of the general arrangements for the protection of workers established by Directive 2004/37/EC. Those limit values need to be evidence-based, proportionate and measurable and should be established on the basis of available information, including up-to-date scientific and technical data, the economic feasibility of implementation and compliance, a thorough assessment of the socioeconomic impact and the availability of exposure measurement protocols and techniques at the workplace. More stringent binding occupational exposure limit values can be set by Member States in close cooperation with the social partners. In addition, Directive 2004/37/EC does not prevent Member States from applying additional measures, such as a biological limit value. (4) Directive 2004/37/EC aims to cover substances or mixtures which meet the criteria for classification as a category 1A or 1B carcinogen or mutagen set out in Annex I to Regulation (EC) No 1272/2008 of the European Parliament and of the Council (5) as well as substances, mixtures or processes referred to in Annex I to Directive 2004/37/EC. The substances which meet the criteria for classification as a category 1A or 1B carcinogen or mutagen set out in Annex I to Regulation (EC) No 1272/2008 are those with a harmonised classification or classified in accordance with Article 4 or 36 of that Regulation and notified to the European Chemicals Agency (ECHA) pursuant to Article 40 of that Regulation. Those substances are listed in the public Classification and Labelling Inventory maintained by ECHA. For any new addition to the list of substances, mixtures and processes referred to in Annex I to Directive 2004/37/EC in accordance with point (a)(ii) of Article 2 of that Directive, robust scientific evidence of the carcinogenicity of the relevant substance needs to be demonstrated, based on available valid scientific sources such as ECHAs Committee for Risk Assessment (RAC), the International Agency for Research on Cancer (IARC) and national bodies, paying particular attention to peer-reviewed published literature on that substance. (5) Occupational exposure limit values are part of the risk-management measures under Directive 2004/37/EC. Those limit values should be revised regularly in accordance with the precautionary principle and the principle of the protection of workers, and in light of sound available scientific and technical data concerning carcinogens and mutagens. Consideration should also be given to improving measurement techniques, risk-management measures and other relevant factors. Compliance with those limit values is without prejudice to other employers obligations pursuant to that Directive, in particular the reduction of the use of carcinogens and mutagens at the workplace, the prevention or reduction of workers exposure to carcinogens or mutagens and the measures which should be implemented to that effect. Those measures should include, in so far as is technically possible, the replacement of the carcinogen or mutagen with a substance, mixture or process which is not dangerous or is less dangerous to workers health, the use of a closed system and other measures aiming to reduce the level of workers exposure. (6) Hazardous drugs, including cytotoxic drugs primarily used for cancer treatment, could have genotoxic, carcinogenic or mutagenic properties. It is therefore important to protect workers who are exposed to such drugs through work involving: the preparation, administration or disposal of hazardous drugs, including cytotoxic drugs; services related to cleaning, transport, laundry or waste disposal of hazardous drugs or of materials contaminated by such drugs; or personal care for patients treated with hazardous drugs. Hazardous drugs, including cytotoxic drugs, are subject to Union measures providing for minimum requirements for the protection of health and safety of workers, in particular those provided for in Council Directive 98/24/EC (6). Hazardous drugs that contain substances that are also carcinogens or mutagens are subject to Directive 2004/37/EC. The Commission should assess the most appropriate instrument for ensuring the occupational safety of workers exposed to hazardous drugs, including cytotoxic drugs. In doing so, access to the best available treatments for patients should not be jeopardised. (7) For most carcinogens and mutagens, it is not scientifically possible to identify levels below which exposure would not lead to adverse effects. While setting the limit values at the workplace in relation to carcinogens and mutagens pursuant to this Directive does not completely eliminate risks to the health and safety of workers arising from exposure at work (residual risk), it nonetheless contributes to a significant reduction in the risks arising from such exposure in the stepwise and goal-setting approach pursuant to Directive 2004/37/EC. For other carcinogens and mutagens, it is scientifically possible to identify levels below which exposure is not expected to lead to adverse effects. (8) Maximum levels for workers exposure to some carcinogens or mutagens are established by values which, pursuant to Directive 2004/37/EC, are not to be exceeded. (9) This Directive strengthens the protection of workers health and safety at their workplace. The Commission should review Directive 2004/37/EC on a regular basis and make legislative proposals, if appropriate. New limit values should be set out in that Directive in the light of available information, including new scientific and technical data and evidence-based best practices, techniques and protocols for exposure-level measurement at the workplace. That information should, if possible, include data on residual risks to the health of workers, recommendations of the Scientific Committee on Occupational Exposure Limits (SCOEL) and opinions of the RAC, as well as opinions of the Advisory Committee on Safety and Health at Work (ACSH) and monographs of the IARC. Transparency of information is a tool for prevention in that context and should be ensured. Information related to residual risk is valuable for any future work to limit risks from occupational exposure to carcinogens and mutagens, and should be made publicly available at Union level. This Directive is in line with the specific recommendations of SCOEL, the RAC and the ACSH, the importance of which has been highlighted in previous amendments to Directive 2004/37/EC. (10) It is also necessary, in light of scientific data, to consider the absorption pathways of carcinogens and mutagens other than inhalation, including the possibility of uptake through the skin, and, in such cases, assign a skin notation for relevant substances in order to ensure the best possible level of protection. The amendments to Annex III to Directive 2004/37/EC provided for in this Directive constitute a further step in a longer-term process initiated to update that Directive. (11) The assessment of health effects of carcinogens subject to this Directive was based on the relevant scientific expertise from SCOEL and the RAC. (12) SCOEL, which was set up by Commission Decision 2014/113/EU (7), assists the Commission in particular in identifying, evaluating and analysing in detail the latest available scientific data and in proposing occupational exposure limit values for the protection of workers from chemical risks, which are to be set at Union level pursuant to Directives 98/24/EC and 2004/37/EC. (13) In accordance with Regulation (EC) No 1907/2006 of the European Parliament and of the Council (8), the RAC draws up ECHA opinions concerning the risks of chemical substances to human health and the environment. In the context of this Directive, the RAC prepared its opinion as requested in accordance with point (c) of Article 77(3) of that Regulation. (14) The 2018-to-2019 campaign Healthy Workplaces Manage Dangerous Substances is a good example of how the European Agency for Safety and Health at Work (EU-OSHA) can support the implementation of occupational safety and health legislation at Union level. It is desirable that EU-OSHA work closely with Member States to provide tailored information and examples of good practices to workers in contact with certain substances, highlighting policy developments and the legislative framework already in place. (15) Cadmium and many of its inorganic compounds meet the criteria for classification as carcinogenic (category 1B) in accordance with Regulation (EC) No 1272/2008 and are therefore carcinogens within the meaning of Directive 2004/37/EC. It is therefore appropriate, on the basis of available information, including scientific and technical data, to establish a limit value for cadmium and its inorganic compounds in that Directive. In addition, cadmium, cadmium nitrate, cadmium hydroxide and cadmium carbonate have been identified as substances of very high concern pursuant to point (a) of Article 57 of Regulation (EC) No 1907/2006 and are included in the candidate list referred to in Article 59(1) of that Regulation. (16) With regard to cadmium, it is foreseeable that it will be difficult to comply with a limit value of 0,001 mg/m3 in the short term. It is therefore appropriate to introduce a transitional period of eight years, during which the limit value 0,004 mg/m3 (inhalable fraction) should apply. With a view to protecting legitimate expectations and in order to avoid potential disruptions of existing practices in Member States that implement, on the date of the entry into force of this Directive, a biomonitoring system with a biological limit value not exceeding 0,002 mg Cd/g creatinine in urine, the limit value of 0,004 mg/m3 should, in those Member States, be measured as respirable fraction during the transitional period, in light of the SCOEL and ACSH opinions on cadmium and its inorganic compounds. (17) On the basis of available valid scientific sources such as those provided by SCOEL, the RAC and relevant national bodies, the Commission should, no later than three years after the date of entry into force of this Directive, assess the option of amending Directive 2004/37/EC by adding provisions on a combination of an airborne occupational exposure limit and a biological limit value for cadmium and its inorganic compounds. (18) Setting a biological limit value for cadmium and its inorganic compounds would protect workers against their systemic toxicity, which mainly affects the kidneys and bones. Biological monitoring can thus contribute to the protection of workers at the workplace, but only as a means of complementing the monitoring of the concentration of cadmium and its inorganic compounds in the air and therefore within the breathing zone of workers. The Commission should issue practical guidelines for biological monitoring. (19) Beryllium and most inorganic beryllium compounds meet the criteria for classification as carcinogenic (category 1B) in accordance with Regulation (EC) No 1272/2008 and are therefore carcinogens within the meaning of Directive 2004/37/EC. In addition to having carcinogenic properties, beryllium is known to provoke chronic beryllium disease (CBD) and beryllium sensitisation (BeS). It is therefore appropriate, on the basis of the available information, including scientific and technical data, to establish a limit value for beryllium and inorganic beryllium compounds in that Directive and to assign a notation for skin and respiratory sensitisation. (20) With regard to beryllium, it is foreseeable that it will be difficult to comply with a limit value of 0,0002 mg/m3 in the short term. It is therefore appropriate to introduce a transitional period of seven years, during which the limit value of 0,0006 mg/m3 should apply. (21) Arsenic acid and its salts, as well as most inorganic arsenic compounds, meet the criteria for classification as carcinogenic (category 1A) in accordance with Regulation (EC) No 1272/2008 and are therefore carcinogens within the meaning of Directive 2004/37/EC. It is therefore appropriate, on the basis of the available information, including scientific and technical data, to establish a limit value for arsenic acid and its salts, as well as inorganic arsenic compounds in that Directive. In addition, arsenic acid, diarsenic pentaoxide and diarsenic trioxide are identified as substances of very high concern pursuant to point (a) of Article 57 of Regulation (EC) No 1907/2006 and are included in Annex XIV to that Regulation, requiring authorisation before they can be used. (22) With regard to arsenic acid, it is foreseeable that the copper smelting sector will have difficulties in complying with a limit value of 0,01 mg/m3. A transitional period of four years should therefore be introduced. (23) Formaldehyde meets the criteria for classification as carcinogenic (category 1B) in accordance with Regulation (EC) No 1272/2008 and is therefore a carcinogen within the meaning of Directive 2004/37/EC. Formaldehyde is a local acting genotoxic carcinogen and there is sufficient scientific evidence of its carcinogenicity in humans. Formaldehyde is also a contact allergen for the skin (skin sensitiser). It is therefore appropriate, on the basis of the available information, including scientific and technical data, to establish a long- and short-term limit value for formaldehyde in that Directive and to assign a notation for skin sensitisation. In addition, at the request of the Commission, ECHA is also gathering existing information to assess the potential exposure to formaldehyde and formaldehyde releasers at the workplace, including industrial and professional uses. (24) Formaldehyde fixatives are routinely used in the healthcare sector across the Union because of their convenience of handling, high degree of accuracy and extreme adaptability. In some Member States, it is foreseeable that the healthcare sector will have difficulties in complying, in the short term, with a limit value of 0,37 mg/m3 or 0,3 ppm. It is therefore appropriate to introduce for that sector a transitional period of five years, during which the limit value of 0,62 mg/m3 or 0,5 ppm should apply. The healthcare sector should, however, minimise exposure to formaldehyde and is encouraged to respect the limit value of 0,37 mg/m3 or 0,3 ppm during the transitional period where possible. (25) In some Member States, formaldehyde is routinely used for the purposes of embalming deceased persons as part of their cultural or religious practices. It is foreseeable that the funeral sector will have difficulties in complying, in the short term, with the limit value of 0,37 mg/m3 or 0,3 ppm. It is therefore appropriate to introduce for that sector a transitional period of five years, during which the limit value of 0,62 mg/m3 or 0,5 ppm should apply. (26) The notations for sensitisation set in this Directive for beryllium and formaldehyde are introduced to improve clarity. When setting such notations during the update of Directive 2004/37/EC, consistency should be ensured with relevant Union law. This may include adding sensitisation notations for substances for which there is already a specific entry in Annex III to that Directive, where relevant. (27) 4,4 ²-Methylene-bis(2-chloroaniline) (MOCA) meets the criteria for classification as carcinogenic (category 1B) in accordance with Regulation (EC) No 1272/2008 and is therefore a carcinogen within the meaning of Directive 2004/37/EC. Its carcinogenicity, together with its manifest genotoxic characteristics, has made it possible to classify that substance as carcinogenic to humans. The possibility of a significant uptake through the skin was identified for MOCA. It is therefore appropriate to establish a limit value for MOCA and to assign a skin notation to it. In addition, it was identified as a substance of very high concern pursuant to point (a) of Article 57 of Regulation (EC) No 1907/2006 and included in Annex XIV to that Regulation, requiring authorisation before it can be placed on the market or used. It is possible, on the basis of available information, including scientific and technical data, to set a limit value for MOCA. (28) The Commission has consulted the ACSH. It has also carried out a two-stage consultation of management and labour at Union level in accordance with Article 154 of the Treaty on the Functioning of the European Union. The ACSH has adopted opinions for substances covered by this Directive and proposed a binding occupational exposure limit value for each of them, supporting the relevant notations for some of them. (29) The limit values established in this Directive are to be kept under regular scrutiny and review to ensure consistency with Regulation (EC) No 1907/2006, in particular to take account of the interaction between limit values established in Directive 2004/37/EC and derived no-effect levels for hazardous chemicals under that Regulation in order to protect workers effectively. (30) Since the objective of this Directive, namely to protect workers against risks to their health and safety, including the prevention of such risks, arising or likely to arise from exposure to carcinogens or mutagens at work, cannot be sufficiently achieved by the Member States, but can rather, by reason of its scale and effects, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective. (31) In implementing this Directive, Member States should avoid imposing administrative, financial and legal constraints in a way which would hold back the creation and development of small and medium-sized undertakings. In this regard, Member States and relevant bodies at Union and national level are encouraged to provide incentives, guidance and advice to micro, small and medium-size enterprises to facilitate compliance with this Directive. In that context, social partner agreements, guidance and other joint actions identifying and developing best practices are most welcome. (32) Given that this Directive concerns the protection of the health and safety of workers at their workplace, it should be transposed within two years of the date of its entry into force. (33) Directive 2004/37/EC should therefore be amended accordingly, HAVE ADOPTED THIS DIRECTIVE: Article 1 Directive 2004/37/EC is amended as follows: (1) In Article 18a, the following subparagraphs are added: No later than 11 July 2022, the Commission shall assess the option of amending this Directive to add provisions on a combination of an airborne occupational exposure limit and a biological limit value for cadmium and its inorganic compounds. No later than 30 June 2020, the Commission shall, taking into account the latest developments in scientific knowledge, and after appropriate consultation with relevant stakeholders, in particular health practitioners and health professionals, assess the option of amending this Directive in order to include hazardous drugs, including cytotoxic drugs, or to propose a more appropriate instrument for the purpose of ensuring the occupational safety of workers exposed to such drugs. On that basis, the Commission shall present, if appropriate, and after consulting management and labour, a legislative proposal.; (2) Annex III is amended in accordance with the Annex to this Directive. Article 2 1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 11 July 2021. They shall immediately inform the Commission thereof. When Member States adopt those measures, they shall contain a reference to this Directive or shall be accompanied by such a reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States. 2. Member States shall communicate to the Commission the text of the measures of national law which they adopt in the field covered by this Directive. Article 3 This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union. Article 4 This Directive is addressed to the Member States. Done at Brussels, 5 June 2019. For the European Parliament The President A. TAJANI For the Council The President G. CIAMBA (1) OJ C 440, 6.12.2018, p. 145. (2) Position of the European Parliament of 27 March 2019 (not yet published in the Official Journal) and decision of the Council of 21 May 2019. (3) OJ C 428, 13.12.2017, p. 10. (4) Directive 2004/37/EC of the European Parliament and of the Council of 29 April 2004 on the protection of workers from the risks related to exposure to carcinogens or mutagens at work (Sixth individual Directive within the meaning of Article 16(1) of Council Directive 89/391/EEC) (OJ L 158, 30.4.2004, p. 50). (5) Regulation (EC) No 1272/2008 of the European Parliament and of the Council of 16 December 2008 on classification, labelling and packaging of substances and mixtures, amending and repealing Directives 67/548/EEC and 1999/45/EC, and amending Regulation (EC) No 1907/2006 (OJ L 353, 31.12.2008, p. 1). (6) Council Directive 98/24/EC of 7 April 1998 on the protection of the health and safety of workers from the risks related to chemical agents at work (fourteenth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ L 131, 5.5.1998, p. 11). (7) Commission Decision 2014/113/EU of 3 March 2014 on setting up a Scientific Committee on Occupational Exposure Limits for Chemical Agents and repealing Decision 95/320/EC (OJ L 62, 4.3.2014, p. 18). (8) Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC (OJ L 396, 30.12.2006, p. 1). ANNEX In point A of Annex III to Directive 2004/37/EC, the following rows are added: Name of agent EC No (1) CAS No (2) Limit values Notation Transitional measures 8 hours (3) Short-term (4) mg/m3 (5) ppm (6) f/ml (7) mg/m3 (5) ppm (6) f/ml (7) Cadmium and its inorganic compounds 0,001 (11) Limit value 0,004 mg/m3 (12) until 11 July 2027 Beryllium and inorganic beryllium compounds 0,0002 (11) dermal and respiratory sensitisation (13) Limit value 0,0006 mg/m3 until 11 July 2026 Arsenic acid and its salts, as well as inorganic arsenic compounds 0,01 (11) For the copper smelting sector, the limit value shall apply from 11 July 2023 Formaldehyde 200-001-8 50-00-0 0,37 0,3 0,74 0,6 dermal sensitisation (14) Limit value of 0,62 mg/m3 or 0,5 ppm (3) for the health care, funeral and embalming sectors until 11 July 2024 4,4 ²-Methylene-bis (2-chloroaniline) 202-918-9 101-14-4 0,01 skin (10) (11) Inhalable fraction. (12) Inhalable fraction. Respirable fraction in those Member States that implement, on the date of the entry into force of this Directive, a biomonitoring system with a biological limit value not exceeding 0,002 mg Cd/g creatinine in urine. (13) The substance can cause sensitisation of the skin and of the respiratory tract. (14) The substance can cause sensitisation of the skin.. |
Exhibit 10.2
375 Park Avenue
November 10, 2015
To:Aceto Corporation
4 Tri Harbor Court
Attention:Steven S. Rogers
Telephone No.:(516) 478-9514
Re:Base Call Option Transaction
Fargo Bank, National Association (“Dealer”) and Aceto Corporation
November 10, 2015 (the “Offering Memorandum”) relating to the Convertible Senior
November 16, 2015 between Counterparty and Citibank, N.A., as trustee (the
Indenture that, as determined by the Calculation Agent acting in good faith and
in a commercially reasonable manner, conforms the Indenture to the description
supplement will be disregarded for purposes of this Confirmation unless the
General Terms.
Trade Date: November 10, 2015 Effective Date: Trade Date Option Style:
“ACET”). Number of Options: 125,000. For the avoidance of doubt, the Number
40% Option Entitlement: A number equal to the product of the Applicable
Percentage and 30.1069. Strike Price: USD 33.2150 Premium: USD 9,452,000
Premium Payment Date: November 16, 2015 Exchange: The NASDAQ Global
Exercise. Conversion Date: With respect to any conversion of a Convertible
such Convertible Note satisfies all of the requirements for conversion thereof
as set forth in Section 14.02(b) of the Indenture.
-2-
Free Convertibility Date: May 1, 2020 Expiration Time: The Valuation Time
Expiration Date: November 1, 2020, subject to earlier exercise. Multiple
each Conversion Date in respect of which a Notice of Conversion that is
-3-
Calculation Agent shall determine the Valuation Time in its reasonable and good
faith discretion. Market Disruption Event: Section 6.3(a) of the Equity
Shares are listed or quoted to open for trading during its regular trading
options contracts or futures contracts relating to the Shares.” Settlement
Terms. Settlement Method: For any Option, Net Share Settlement; provided
that if the Relevant Settlement Method set forth below for such Option is not
Net Share Settlement, then the Settlement Method for such Option shall be such
-4-
for the last Valid Day of the Settlement Averaging Period. Combination
be zero; and
-5-
exceed the amount per Option, as determined by the Calculation Agent (acting in
good faith and in a commercially reasonable manner), that would be payable by
Counterparty was the sole Affected Party and (y) Section 14.03 of the Indenture
were deleted, then each Daily Option Value shall be proportionately reduced to
the extent necessary to eliminate such excess.
-6-
as displayed under the heading “Op” on Bloomberg page ACET <equity> (or any
are then listed or quoted. If the Shares are not so listed or quoted, “Valid
be a Valid Day on the principal United States national or regional securities
exchange or market on which the Shares are listed or quoted. If the Shares are
not so listed or quoted, “Scheduled Valid Day” means a Business Day.
Bloomberg page ACET <equity> AQR (or any successor thereto) in respect of the
reasonable manner) using, if practicable, a volume-weighted average
hours.
-7-
Method applicable to such Option: (i) if the related Conversion Date
occurs prior to the Free Convertibility Date, the 60 consecutive Valid Days
commencing on, and including, the second Valid Day following such Conversion
Date; provided that if the Notice of Exercise for such Option specifies that
Convertible Note, the Settlement Averaging Period shall be the 120 consecutive
Valid Day period commencing on, and including, the second Valid Day immediately
following such Conversion Date; or (ii) if the related Conversion Date
occurs on or following the Free Convertibility Date, the 60 consecutive Valid
Days commencing on, and including, the 62nd Scheduled Valid Day immediately
prior to the Expiration Date; provided that if the Notice of Exercise or Notice
Valid Days commencing on, and including, the 122nd Scheduled Valid Day
immediately prior to the Expiration Date. Settlement Date: For any Option,
the third Business Day immediately following the final Valid Day of the
Settlement Averaging Period for such Option. Settlement Currency: USD
-8-
second paragraph of Section 14.04(d) of the Indenture). Method of
commercially reasonable manner; provided further that, notwithstanding the
Adjustment Event.
-9-
the Indenture. Consequences of Merger Events / Tender Offers:
-10-
Hedging Disruption”. Increased Cost of Hedging: Applicable Hedging
-11-
within five Scheduled Trading Days) provide to Counterparty by e-mail to the
e-mail address provided by Counterparty in such request a report (in a commonly
following such written explanation Counterparty so requests, the Calculation
Agent shall, to the extent permitted by applicable legal, regulatory or
discuss the related judgment, determination or calculation with Counterparty in
good faith; provided that, for the avoidance of doubt and notwithstanding the
calculation with Counterparty as set forth in this paragraph, any such judgment,
conclusive. Whenever the Calculation Agent is called upon to make a
judgment, determination or calculation pursuant to the terms of this
ABA#:021000021
Acct No.:777-178648
Beneficiary:Aceto Corporation
Ref:Convertible Note Hedge Transaction
A/C Name:WFB Equity Derivatives
DTC Number: 2072
Agent ID: 52196
Institution ID: 52196
-12-
6.Offices.
7.Notices.
Aceto Corporation
4 Tri Harbor Court
Attention:Steven S. Rogers
E-mail:SRogers@aceto.com
in connection with the Transaction are effective only upon delivery of email
2015, among Counterparty, Wells Fargo Securities, LLC and J.P. Morgan Securities
that:
thereto.
-13-
number of outstanding Shares as determined on such day is (i) less than 28.0
and against any and all reasonable losses (including losses relating to Dealer’s
several, which an Indemnified Person may become subject to, solely as a result
or other expenses incurred (each as reasonably documented to Counterparty) in
against any reasonable loss or liability by reason of such settlement or
-14-
as amended);
manner that, in the reasonable and good faith judgment of Dealer, will not
-15-
including reasonable outside counsel fees, incurred by Dealer in connection with
guarantee in a form used by Dealer generally for similar transactions with
parties similar to Counterparty (with such determination made by Dealer in good
faith and in a commercially reasonable manner), by Dealer or Dealer’s ultimate
a substitute rating agency mutually agreed by Counterparty and Dealer. If at any
Shares outstanding.
-16-
performance.
Date; and
0.06 per Share per quarter. Upon any adjustment to the Initial Dividend
Threshold (as defined in the Indenture) for the Convertible Notes pursuant to
-17-
(i)Additional Termination Event. Notwithstanding anything to the contrary in
this Confirmation if an event of default with respect to Counterparty occurs
Indenture and results in the acceleration of Counterparty’s obligations
thereunder, then such event of default shall constitute an Additional
of such section.
under this Confirmation, including without limitation any obligation to make any
-18-
equal to the Payment Obligation divided by the Share Termination Unit
Delivery Unit, as determined by the Calculation Agent in its good faith
-19-
9.11 (as modified above) of the Equity Definitions and the provisions set forth
provided herein.
-20-
-21-
discharged.
(x)Tax Provisions.
(i)Counterparty will be treated as having made the following representation for
(A)Counterparty is a “United States person” as such term is defined for purposes
(B)Counterparty is the beneficial owner for U.S. federal income tax purposes of
the rights and obligations specified for “Counterparty” or “Buyer” under this
Confirmation.
(ii)Counterparty will be treated as having made the following covenant in
connection with Section 4(a)(i) of the Agreement:
(A)Counterparty will deliver to Dealer, promptly upon execution of this
Confirmation and thereafter at such times as reasonably requested by Dealer and
as required to ensure that Dealer has, throughout the term of the Transaction, a
valid such form from Counterparty, a properly completed and executed Internal
Revenue Service Form W-9 (or applicable successor form).
(iii)Section 871(m). The Agreement shall be treated as having the following
modifications:
(A)The following terms are added to Section 14 (Definitions) of the Agreement:
-22-
provision.
(B)The following is added to the end of the definition of “Indemnifiable Tax” in
(iv)FATCA. “Indemnifiable Tax” as defined in Section 14 of the Agreement shall
-23-
executed copy to CorporateDerivativeNotifications@wellsfargo.com.
Very truly yours,
WELLS FARGO BANK, NATIONAL ASSOCIATION By: /s/ Thomas Yates
Authorized Signatory Name: Thomas Yates
Accepted and confirmed
ACETO CORPORATION By: /s/ Salvatore Guccione Authorized Signatory
Name: Salvatore Guccione
|
Exhibit 10.1
THIS AMENDMENT NUMBER TWO TO CREDIT AGREEMENT (this “Amendment”), dated as of
May 29, 2012, is entered into by and among STILLWATER MINING COMPANY, a Delaware
corporation (“Borrower”), the lenders identified on the signature pages hereof
its successors and assigns in such capacity, “Agent”), and as lead arranger, and
as book runner, and in light of the following:
willing to accommodate Borrower’s requests to make certain amendments to the
Credit Agreement.
follows:
amended hereby.
“2012 Notes” means Borrower’s convertible senior notes due 2032 which are to be
issued pursuant to the Convertible Notes Indenture.
“Convertible Notes Indenture” means that certain Indenture for Debt Securities
dated as of November 29, 2010 between Borrower and Law Debenture Trust Company
of New York as supplemented by the First Supplemental Indenture, Borrower and
Law Debenture Trust Company of New York.
“First Amendment” means that certain Amendment Number Two to Credit Agreement
dated as of May 29, 2012 by and among Borrower, Agent and the Lenders party
thereto.
“First Supplemental Indenture” means the First Supplemental Indenture between
Borrower and Law Debenture Trust Company of New York, governing the terms of
Borrower’s convertible senior notes due 2032 which is in form and substance in
accordance with the provisions of the description of notes that is attached as
1
definition of “Change in Control” appearing therein by (i) deleting the “and”
at the end of clause (e) thereof with “; and”, and (iii) inserting the following
clause (f) in its entirety after clause (e) thereof:
“(f) the occurrence of any “Fundamental Change” as such term is defined in the
Convertible Notes Indenture.”
restating clause (j) of the definition of “Permitted Dispositions” appearing
therein in its entirety as follows:
“(j) (i) the sale or issuance of Qualified Equity Interests of Borrower,
(ii) the sale or issuance of Equity Interests of any Loan Party to any other
Loan Party, (iii) the sale or issuance of Equity Interests of any Non-Loan Party
to any Non-Loan Party, (iv) the sale or issuance of Equity Interests of any
Non-Loan Party to any Loan Party in connection with a Permitted Investment by
such Loan Party, and (v) the issuance of the 2012 Notes,”
definition of “Restricted Payment” appearing therein by replacing the word
“repayment” in clause (y) thereof with the word “payment”.
(e) Section 6.6(a)(i) of the Credit Agreement is hereby amended and restated in
Indebtedness of Borrower or its Subsidiaries (it being understood and agreed
that payments of regularly scheduled principal and interest and prepayments of
principal and interest that are required to be made in cash shall be permitted,
but that any payment that may be made either in cash (or other immediately
available funds) or in Equity Interests issued by Borrower and which Borrower
elects to make in cash (or other immediately available funds) shall be deemed to
constitute an optional prepayment that may only be made in cash (other
immediately available funds) to the extent permitted by the provisions of this
Section 6.6(a)), other than (A) the Obligations in accordance with this
Agreement, and (B) Permitted Intercompany Advances, or”
entirety as follows.
“6.12 Limitation on Issuance of Equity Interests. Borrower will not, and will
or arrangement for the issuance or sale of any of its Equity Interests, except
for (a) the issuance or sale of Qualified Equity Interests by Borrower,
(b) Equity Interests of a Loan Party to another Loan Party, (c) Equity Interests
of a Non-Loan Party to another Non-Loan Party, (d) Equity Interests of a
Non-Loan Party to a Loan Party so long as the acquisition of such Equity
Interests by a Loan Party constitutes a Permitted Investment, (e) the issuance
or sale of the 2012 Notes, and (f) any Permitted Disposition described under
clauses (j), (p) and (q) of the definition thereof.”
3. Agreement. Notwithstanding anything to the contrary set forth in the Credit
Agreement or any other Loan Document, Agent and the undersigned Lenders hereby
agree that if and when a portion of the proceeds of the issuance of the 2012
Notes are used to repay in full the outstanding principal balance of the Notes
(such portion of such proceeds, the “Payoff Proceeds”), the portion of the
Indebtedness evidenced by the 2012 Notes in the amount of the Payoff Proceeds
shall be deemed to constitute Refinancing Indebtedness in respect of the
Indebtedness evidenced by the Notes.
2
(such date being the “Amendment Effective Date”):
official of each Guarantor;
transactions contemplated herein.
Material
3
aggregate reasonably be expected to cause a Material Adverse Effect.
Authority against Borrower, any Guarantor, Agent or any Lender.
other ramifications of each such decision.
hereunder.
6. Payment of Costs and Fees. Borrower agrees to pay all reasonable and
ARISING HEREUNDER OR RELATED
4
COLLATERAL OR OTHER PROPERTY MAY BE FOUND. THE PARTIES HERETO WAIVE, TO THE
PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 7(b).
STATUTORY CLAIMS (EACH A “CLAIM”). THE PARTIES HERETO REPRESENT THAT EACH HAS
COURT.
FAVOR.
5
ANGELES, CALIFORNIA.
COSTS OF THE COURT
6
REFEREE.
STATE OF CALIFORNIA.
JUDGMENT OR SUMMARY JUDGMENT. THE REFEREE SHALL REPORT HIS OR HER DECISIONS
(INCLUDING ANY DECISIONS RELATED TO SPECIFIC ISSUES AND THE REFEREE’S ULTIMATE
FACT AND CONCLUSIONS OF LAW. THE REFEREE SHALL ISSUE AN ULTIMATE DECISION AND
MUTUAL BENEFIT AGREES THAT THIS REFERENCE PROVISION SHALL APPLY CONSISTENT WITH
THE FOREGOING PROVISIONS OF THIS SECTION 7, TO ANY DISPUTE BETWEEN THEM THAT
ARISES OUT OF OR IS RELATED TO THIS AMENDMENT.
7
9. Further Assurances. Borrower shall execute and deliver all agreements,
Collateral and to consummate fully the transactions contemplated under this
Except for the amendments to the Credit Agreement and Guaranty and Security
Security Agreement and the other Loan Documents shall remain unchanged and in
full force and effect. The amendments, consents, waivers and modifications set
the sole and absolute discretion of Agent and Lenders.
this Amendment unless otherwise specified. Any reference in this Amendment to
tangible and intangible assets and properties. Any reference herein to the
satisfaction,
8
of a Record.
12. Reaffirmation of Obligations. Borrower hereby reaffirms its obligations
13. Ratification. Borrower hereby restates, ratifies and reaffirms each and
9
STILLWATER MINING COMPANY,
By: /s/ Gregory A. Wing Name: Gregory A. Wing Title: Chief Financial
Officer
a Lender
By: /s/ Paras Shah Name: Paras Shah Title: Vice President
as Syndication Agent, and as a Lender
By: /s/ Greg Stewart Name: Greg Stewart Title: Vice President
FIRST INTERSTATE BANK,
By: /s/ Susan M. Riplett Name: Susan M. Riplett Title: Vice President |
As filed with the Securities and Exchange Commission on August 19, File Nos. 333-92935 and 811-09729 SECURITIES
|
EXHIBIT 10.9.1
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this “Agreement”), dated as of June 29, 2007, by and
and Veronica Lubatkin (“Executive”).
RECITALS:
A. WHEREAS, Executive is presently employed in the capacity of Vice
President and Controller; and
existing Employment Agreement, dated March 29, 2006, and enter into this
Agreement in order for Executive to assume the position of Executive Vice
President and Chief Financial Officer of Par to perform the duties associated
with this position with Employer on the terms and conditions set forth herein.
In consideration of the mutual promises herein contained, the parties
1. Employment.
1.1. General. Employer hereby employs Executive in the capacity of
Executive Vice President and Chief Financial Officer of Par at the compensation
rate and benefits set forth in Section 2 hereof for the Employment Term (as
defined in Section 3.1 hereof). Executive hereby accepts such employment,
subject to the terms and conditions herein contained. In all such capacity,
Executive shall perform and carry out such duties and responsibilities as may be
assigned to her from time to time by the Board and by the Chief Executive
Officer and/or Chief Operating Officer of Par reasonably consistent with
Executive’s position and this Agreement, and shall report to the Board and the
Chief Operating Officer of Par.
shall devote substantially all of her business time, attention and skills to the
1.3. Certifications. Whenever the Chief Executive Officer of Par is
required by law, rule or regulation or requested by any governmental authority
or by Par’s auditors to provide certifications with respect to Par’s financial
governmental authority, Executive shall sign such certifications as may be
reasonably requested by the Chief Executive Officer of Par and/or
Employer, with such exceptions as Executive deems necessary to make such
certifications accurate and not misleading.
shall pay to Executive, and Executive shall accept, as full compensation for any
and all services rendered and to be rendered by her during such period to
Employer in all capacities, including, but not limited to, all services that may
be rendered by her to any of Employer’s existing subsidiaries, entities and
following: (i) a base salary at the annual rate of $340,000 (Three Hundred and
Forty Thousand Dollars), or at such increased rate as the Board (through its
or otherwise.
to an annual bonus during the Employment Term in such amount (if any) as
determined by the Board based on such performance criteria as it deems
appropriate, including, without limitation, Executive’s performance and
Employer’s earnings, financial condition, rate of return on equity and
compliance with regulatory requirements. The target amount of Executive’s annual
bonus shall be equal to 50% (fifty percent) of her Base Salary.
2.3. Equity Awards. Executive shall be entitled to participate in
long-term incentive plans commensurate with her titles and positions, including,
without limitation, stock option, restricted stock, and similar equity plans of
Employer as may be offered from time to time.
2.4.1. Expenses. Employer shall promptly reimburse Executive for
expenses she reasonably incurs in connection with the performance of her duties
(including business travel and entertainment expenses) hereunder, all in
accordance with Employer’s policies with respect thereto as in effect from time
to time.
2.4.2. Employer Plans. Executive shall be entitled to participate
in such employee benefit and welfare plans and programs as Employer may from
time to time generally offer or provide to executive officers of Employer or its
retirement plans.
paid vacation per calendar year, prorated for any partial year.
2
2.4.4. Life Insurance. Employer shall obtain (provided, that
Executives qualifies on a non-rated basis) a term life insurance policy, the
premiums of which shall be borne by Employer and the death benefits of which
shall be payable to Executive’s estate, or as otherwise directed by Executive,
in the amount of $1 million throughout the Employment Term.
2.4.5. Automobile. Employer shall provide Executive with an
automobile cash allowance of one thousand and fifty dollars ($1,050) (gross) per
month.
3.1. Employment Term. Executive’s employment hereunder shall commence
on the date hereof and, except as otherwise provided in Section 3.2 hereof,
shall continue until the third (3rd) anniversary of the date of this Agreement
for successive one-year periods commencing on the third (3rd) anniversary of the
Section 3.4.2 hereof) in respect of its or her election not to renew the
Employment Term to the other party at least 90 days prior to such termination.
Upon nonrenewal of the Employment Term pursuant to this Section 3.1 or
termination pursuant to Sections 3.2.1 through 3.2.6 hereof, inclusive,
Executive shall be released from any duties hereunder (except as set forth in
Section 4 hereof) and the obligations of Employer to Executive shall be as set
forth in Section 3.3 hereof only.
3.2. Events of Termination. The Employment Term shall terminate upon
Term shall terminate on the date of her death.
3.2.2. Without Cause By Executive. Executive may terminate the
Employment Term at any time during such Term for any reason whatsoever by giving
a Notice of Termination to Employer. The Date of Termination pursuant to this
Section 3.2.2 shall be thirty (30) days after the Notice of Termination is
given.
3.2.3. Disability. In the event of Executive’s Disability (as
hereinafter defined), Employer may, at its option, terminate the Employment Term
by giving a Notice of Termination to Executive. The Notice of Termination shall
specify the Date of Termination, which date shall not be earlier than thirty
(30) days after the Notice of Termination is given. For purposes of this
Agreement, “Disability” means disability as defined in any long-term disability
insurance policy provided by Employer and insuring Executive, or, in the absence
of any such policy, the inability of Executive for 180 days in any twelve
(12) month period to substantially perform her duties hereunder as a result of a
3
3.2.4. For Cause By Employer. Employer may terminate the
Employment Term for “Cause” based on objective factors determined in good faith
by a majority of the Board as set forth in a Notice of Termination to Executive
specifying the reasons for termination and the failure of the Executive to cure
the same within ten (10) days after Employer shall have given the Notice of
Termination; provided, however, that in the event the Board in good faith
determines that the underlying reasons giving rise to such determination cannot
be cured, then the ten (10) day period shall not apply and the Employment Term
shall terminate on the date the Notice of Termination is given. For purposes of
contest plea to, or confession of guilt of, a felony, or other crime involving
moral turpitude; (ii) an act or omission by Executive in connection with her
employment that constitutes fraud, criminal misconduct, breach of fiduciary
duty, dishonesty, gross negligence, malfeasance, willful misconduct or other
conduct that is materially harmful or detrimental to Employer; (iii) a material
breach by Executive of this Agreement; (iv) continuing failure to perform such
duties as are assigned to Executive by Employer in accordance with this
Agreement, other than a failure resulting from a Disability; (v) Executive’s
knowingly taking any action on behalf of Employer or any of its affiliates
without appropriate authority to take such action; (vi) Executive’s knowingly
taking any action in conflict of interest with Employer or any of its affiliates
given Executive’s position with Employer; and/or (vii) the commission of an act
of personal dishonesty by Executive that involves personal profit in connection
with Employer.
3.2.5. Without Cause By Employer. Employer may terminate the
Executive that amount of the Base Salary amount that would have been earned
between the thirty (30) day period and such shorter period.
3.2.6. Employer’s Material Breach. Executive may terminate the
inconsistent with her positions, responsibilities and status with Employer, or a
of Executive from her positions with Employer, except in connection with the
New Jersey.
4
3.3. Certain Obligations of Employer Following Termination of the
Employment Term. Following termination of the Employment Term under the
circumstances described below, Employer shall pay to Executive or her estate, as
the case may be, the following compensation and provide the following benefits
in full satisfaction and final settlement of any and all claims and demands that
Executive now has or hereafter may have hereunder against Employer. Any and all
payments referenced hereunder are contingent upon Executive’s execution of
Employer’s standard form Release Agreement in effect at the time. In connection
employment during the period in which she is receiving severance payments and
the Severance Amount (as defined in Section 3.3.2 hereof) shall not be reduced
solely as a result of Executive’s subsequent employment by an entity other than
Employer.
terminated by Employer for Cause, Employer shall pay to Executive, in a single
lump-sum within 30 days of the Date of Termination, an amount equal to any
unpaid but earned Base Salary through the Date of Termination.
3.3.2. Without Cause by Employer; Material Breach by Employer;
Non-Renewal by Employer. In the event that the Employment Term is terminated by
Employer pursuant to Section 3.2.5 hereof or by Executive pursuant to
Section 3.2.6 hereof, or is not renewed by Employer pursuant to Section 3.1
hereof, Employer shall pay to Executive severance in an amount equal to two
(2) times her Base Amount, and Executive shall retain all vested benefits
mean the Base Salary in effect at such applicable time plus, if Executive’s
respect of her duties hereunder, the amount of Executive’s last annual cash
bonus pursuant to Section 2.2 hereof. Any payments made in accordance with this
Section 3.3.2 shall be made in twenty-four (24) equal monthly installments from
the Date of Termination in accordance with Employer’s regular payroll practices,
or, if upon agreement of Executive and Employer, in a lump sum within 30 days of
the Date of Termination, subject to Executive’s continued compliance with the
terms of Section 4 hereof and the execution by Executive of Employer’s standard
form Release Agreement in effect at the time.
3.3.3. Without Cause By Executive; Election Not to Renew by
Executive. In the event that the Employment Term is terminated by Executive
pursuant to Section 3.2.2 hereof or Executive elects not to renew this Agreement
pursuant to Section 3.1 hereof, Employer shall pay to Executive, in a single
3.3.4. Death, Disability. In the event that the Employment Term
is terminated by reason of Executive’s death pursuant to Section 3.2.1 hereof or
by Employer by reason of Executive’s Disability pursuant to Section 3.2.3
hereof, Employer shall pay to Executive, subject to, in the case of Disability,
Executive’s continued compliance with Section 4 hereof, the Severance Amount,
less any life insurance and/or disability insurance received by Executive or her
estate pursuant to insurance policies provided by Employer (including pursuant
5
to Section 2.4.4 hereof), payable in accordance with Section 3.3.2 hereof, and
Executive shall retain all vested benefits granted pursuant to Section 2.3
hereof.
3.3.5. Post-Employment Term Benefits. In the event Executive is
terminated pursuant to Sections 3.2.1 through 3.2.6 hereof, inclusive, or either
Employer or Executive elects not to renew this Agreement pursuant to Section 3.1
hereof, Employer shall reimburse Executive for any unpaid expenses pursuant to
Section 2.4.1 hereof, and Executive will have the opportunity and responsibility
to elect COBRA continuation coverage pursuant to the terms of that law and will
termination of her insurance coverage. Except as provided immediately below,
Executive will be responsible for all COBRA payments. Specifically, if Executive
is terminated pursuant to Sections 3.2.3, 3.2.5 or 3.2.6 hereof, or Employer
elects not to renew this Agreement pursuant to Section 3.1 hereof, Executive
shall be entitled to participate, at Employer’s expense, in all medical and
health plans and programs of Employer in accordance with COBRA for a period of
eighteen (18) months (the “Benefits Period”), subject to the execution by
Executive of Employer’s standard form Release Agreement in effect at the time
and Executive’s continued compliance with the terms of Section 4 hereof;
provided, that Executive’s continued participation is legally possible under the
general terms and provisions of such plans and programs; and provided, further,
that in the event Executive is entitled to equal or comparable benefits from a
subsequent employer during the Benefits Period, Employer’s obligation with
respect thereto pursuant to this Section 3.3.5 shall end as of such date.
3.3.6. Equity Awards.
(as defined in Section 3.4.1 hereof) of Employer, the Employment Term is
terminated other than for Cause, then Executive (or her estate) shall have
twenty-four (24) months from the date of termination to exercise any vested
equity awards; provided, that the relevant equity award plan remains in effect
and such equity awards shall not have otherwise expired in accordance with the
terms thereof. In connection therewith, Employer agrees to use commercially
reasonable efforts to amend Executive’s Equity Award Agreements if necessary to
effectuate the provisions of this Section 3.3.6(a).
Employer pursuant to Section 3.2.5 hereof and the reason for such termination is
not related to the performance of Executive in her duties with respect to
Employer, or (ii) by Executive pursuant to Section 3.2.6 hereof, then all
restricted stock theretofore granted to Executive shall thereupon vest and any
option granted to the Executive subsequent to the execution of this Agreement
date to exercise such options; provided, that the relevant equity award plan
remains in effect and such equity awards shall not have otherwise expired in
use commercially reasonable efforts to amend Executive’s Equity Award Agreements
if necessary to effectuate the provisions of this Section 3.3.6(b).
6
3.4. Definitions.
Employer means (i) the approval by the stockholders of Par of the sale, lease,
exchange or other transfer (other than pursuant to internal reorganization) by
Par of all or substantially all of its respective assets to a single purchaser
or to a group of associated purchasers; (ii) the first purchase of shares of
equity securities of Par pursuant to a tender offer or exchange offer (other
than an offer by Par) for at least fifteen (15%) percent of the equity
securities of Par; (iii) the approval by the stockholders of Par of an agreement
for a merger or consolidation in which Par shall not survive as an independent,
publicly-owned corporation; (iv) the acquisition (including by means of a
merger) by a single purchaser or a group of associated purchasers of securities
of Par from either Par or any third party representing thirty-five (35%) percent
or more of the combined voting power of Par’s then outstanding equity securities
in one or a related series of transactions (other than pursuant to an internal
reorganization) or (v) the change of the membership of a majority of the Board
during any period of two (2) consecutive years, unless the election, or the
nomination for election by Par’s stockholders, of each new director was approved
by a vote of at least two-thirds of the directors of the Board still in office
who were directors of Par at the beginning of the period.
means a written notice that indicates the specific termination provision relied
upon by Employer or Executive and, except in the case of termination pursuant to
Sections 3.2.1, 3.2.2 or 3.2.5 hereof, that sets forth in reasonable detail the
Employment Term under the termination provision so indicated.
such date as the Employment Term is expired if not renewed or terminated in
accordance with Sections 3.1 or 3.2 hereof.
4.1. “Confidential Information” Defined. “Confidential Information”
means any and all information (oral or written) relating to Employer or any
Subsidiary or any person or entity controlling, controlled by, or under common
control with Employer or any Subsidiary or any of their respective activities,
including, but not limited to, information relating to: technology, research,
test procedures and results, machinery and equipment; manufacturing processes;
financial information; products; identity and description of materials and
services used; purchasing; costs; pricing; customers and prospects; advertising,
promotion and marketing; and selling, servicing and information pertaining to
any governmental investigation, except such information which becomes public,
other than as a result of a breach of the provisions of Section 4.2 hereof.
4.2. Non-disclosure of Confidential Information. Executive shall not
at any time (other than as may be required or appropriate in connection with the
performance by him of her duties hereunder), directly or indirectly, use,
whatsoever for the benefit of any person or entity
7
other than Employer (except as may be required under legal process by subpoena
or other court order).
Subsidiaries to discontinue or alter her or its relationship with Employer or
indirectly provide any services (whether in the management, sales, marketing,
public relations, finance, research, development, general office,
administrative, or other areas) as an employee, agent, stockholder, officer,
director, consultant, advisor, investor, or other representative of Employer’s
competitors in the branded or generic pharmaceutical industry in any state or
country in which Employer does or seeks to do business. Employer’s competitors
include any entity, individual, or affiliate of such company or individual that
develops, sells, markets, or distributes any products that compete with or are
the same or similar to those of Employer. However, the restrictions of this
paragraph 4.4 shall not apply if the Employment Term is terminated by Employer
pursuant to Section 3.2.5 hereof or by Executive properly pursuant to
Section 3.2.6 hereof; nor shall this paragraph prohibit Executive from being a
passive owner of not more than one percent (1%) of any publicly-traded class of
capital stock of any entity engaged in a competing business.
4.5. Injunctive Relief. The parties hereby acknowledge and agree that
(a) the type, scope and periods of restrictions imposed in paragraph 4 are
necessary, fair and reasonable to protect Employer’s legitimate business
interests and to prevent the inevitable disclosure of Employer’s Confidential
Information; (b) Employer will be irreparably injured in the event of a breach
by Executive of any of her obligations under this Section 4; (c) monetary
damages will not be an adequate remedy for any such breach; (d) Employer will be
entitled to injunctive relief, in addition to any other remedy which it may
have, in the event of any such breach; and (e) the existence of any claims that
Executive may have against Employer, whether under this Agreement or otherwise,
will not be a defense to the enforcement by Employer of any of its rights under
this Section 4.
4.6. Non-exclusivity and Survival. The covenants of Executive
contained in this Section 4 are in addition to, and not in lieu of, any
obligations that Executive may have with respect to the subject matter hereof,
whether by contract, as a matter of law or otherwise, and such covenants and
their enforceability shall survive any termination of the Employment Term by
either party and any investigation made with respect to the breach thereof by
Employer at any time.
provisions hereof shall
8
be unimpaired; (b) any such invalidity or unenforceability in any jurisdiction
jurisdiction; and (c) the invalid or unenforceable term or provision shall, for
delivered by hand, overnight delivery or telecopy (with confirmed delivery), or
three (3) business days after posting, when delivered by registered or certified
mail or private courier service, postage prepaid, return receipt requested, as
follows:
300 Tice Boulevard
Attention: Chairman
Copy to:
One Riverfront Plaza
Veronica Lubatkin
300 Tice Boulevard
executed by both Par and Executive.
9
5.5. Entire Agreement. This Agreement and, with respect to
Section 3.3.6 hereof, Executive’s Equity Award Agreements and governing equity
award plans constitute the entire agreement of the parties hereto with respect
to the subject matter hereof, and supersede all prior agreements and
understandings of the parties hereto, oral or written, including, but not
limited to, the parties’ Employment Agreement dated March 29, 2006. Executive
and Employer hereby agree that the Employment Agreement dated March 29, 2006, is
Section 3.3.6 hereof and Executive’s Equity Award Agreements and the governing
equity award plans, Section 3.3.6 shall govern.
made and to be wholly performed therein.
5.8. Binding Effect; Successors and Assigns. Executive may not
delegate any of her duties or assign her rights hereunder. This Agreement shall
Employer shall require any successor (whether direct or indirect and whether by
business and/or assets of Employer, by an agreement in form and substance
parties hereto thereafter to enforce each and every provision of this Agreement.
breach.
5.10. Capacity, etc. Executive and Employer hereby represent and
warrant to the other that, as the case may be: (a) she or it has full power,
authority and capacity to execute and deliver this Agreement, and to perform her
or its obligations hereunder; (b) such execution, delivery and performance shall
the breach of any agreements or other obligations to which she or it is a party
or she or it is otherwise bound; and (c) this Agreement is her or its valid and
5.11. Enforcement; Jurisdiction. If any party institutes legal action
prevailing party shall be
10
awarded reasonable attorneys’ fees at all trial and appellate levels, and the
Any legal action, suit or proceeding, in equity or at law, arising out of or
relating to this Agreement shall be instituted exclusively in the State or
Federal courts located in the State of New Jersey, and each party agrees not to
proceeding, any claim that such party is not subject personally to the
jurisdiction of any such court, that the action, suit or proceeding is brought
improper or should be transferred, or that this Agreement or the subject matter
hereof may not be enforced in or by any such court. Each party further
irrevocably submits to the jurisdiction of any such court in any such action,
suit or proceeding. Any and all service of process and any other notice in any
such action, suit or proceeding shall be effective against any party if given
personally or by registered or certified mail, return receipt requested or by
5.12. Arbitration.
the determination by the Board of a termination for Cause pursuant to
Section 3.2.4 hereof, or in respect of the breach thereof shall be settled by
arbitration in New Jersey. The arbitration shall be accomplished in the
following manner. Either party may serve upon the other party written demand
arbitration. Within ten (10) days after such demand is given in accordance with
Section 5.3 hereof, each of the parties shall designate an arbitrator and
provide written notice of such appointment upon the other party. If either party
fails within the specified time to appoint such arbitrator, the other party
shall be entitled to appoint both arbitrators. The two (2) arbitrators so
appointed shall appoint a third arbitrator. If the two arbitrators appointed
fail to agree upon a third arbitrator within ten (10) days after their
appointment, then an application may be made by either party hereto, upon
written notice to the other party, to the American Arbitration Association (the
the parties. The party against whom the award is rendered (the “non-prevailing
experts and authorities. The arbitrators shall render their award,
11
upon the concurrence of at least two of their number, not later than thirty
(30) days after the appointment of the third arbitrator. The decision and award
parties. In rendering an award, the arbitrators shall have no power to modify
any of the provisions of this Agreement, and the jurisdiction of the arbitrators
is expressly limited accordingly. Judgment may be entered on the award of the
12
By: /s/ Patrick G. LePore Name: Patrick G. LePore
/s/ Veronica A. Lubatkin Veronica Lubatkin
13 |
Exhibit 10.14
FIRST AMENDMENT
TO
AMENDED AND RESTATED
RECITALS:
Agreement.
Amendment:
Title: President
Title: President
Title: President
Title: President
APPENDIX A
TO
AMENDMENT
(see attached)
EXHIBIT B-1
REFINED PRODUCT TERMINALS
Terminal Location
Number of Tanks
Supply Source
Mode of Delivery
El Paso, TX
662,000
20
Pipeline/rail
Truck/Pipeline
Moriarty, NM
189,000
9
Pipeline
Truck
Bloomfield, NM
193,000
7
Pipeline
Truck
176,000
9
Pipeline
Truck
120,000
3
Pipeline
Pipeline
Spokane, WA
333,000
32
Pipeline/rail
Truck
Artesia facility truck rack
N/A
N/A
Refinery
Truck
Woods Cross facilities
N/A
N/A
Refinery
Truck/Pipeline
Total
1,673,000
APPENDIX B
TO
AMENDMENT
(see attached)
EXHIBIT C-2
SCHEDULE OF ADDITIVE FEES
Terminal Name
(per bbl)
(per bbl)
(per bbl)
Ethanol Injection Fee?
HOC Supplies Red Dye
HOC Supplies Gasoline Additive
HOC Supplies Lubricity Additive
El Paso Terminal
NRC-shipper
No
No
$0.1470
No
Yes
Yes
No
Artesia Rack
NRC-shipper
$0.2100
No
No
No
No
Yes
Yes
Tucson Terminal
NRC-shipper
$0.0290
$0.0408
$0.1470
$0.0408
No
Yes
No
Moriarty Terminal
NRC-shipper
No
No
$0.0504
No
Yes
Yes
Yes
Bloomfield Terminal
NRC-shipper
No
No
$0.0504
No
Yes
Yes
Yes
Spokane Terminal
HRM-shipper
$0.0261
$0.0356
$0.1470
No
No
No
No
Woods Cross Terminal
HRM-shipper
$0.0504
No
$0.0504
No
Yes
No
No
1 |
Exhibit 10.28
OMB No. 0990-0115
PAGE OF PAGES
1 of 2
2. AMENDMENT/MODIFICATION NO. 3. EFFECTIVE DATE
01
9/25/2004 QXI40372 6. ISSUED BY CODE
CODE
National Institute of Environmental Health Sciences
Acquisitions Management Branch/OM
P.O. Box 12874
DEITRA C. LUNNEY
(919) 541-0387
8. NAME AND ADDRESS OF CONTRACTOR (No. street, city, county, State and ZIP Code)
Xenogen Biosciences
5 Cedar Brook Drive
(X)
B2
X
273-03-C-0045 / CR300045
CODE FACILITY CODE 9/25/2003 11. THIS ITEM ONLY APPLIES TO AMENDMENTS OF
SOLICITATIONS
date specified for receipt of offers ¨ is extended, ¨ is not extended.
(a) By completing Item B and 15, and returning copies of
and date specified.
EIN: 1311122130A2
CAN: 483237_3 OC: 252Z Current Obligation: $841,673.00
(X)
ADMINISTRATIVE CHANGES [such as changes in paying office, appropreation date,
etc.] SET FORTH IN ITEM 14, PURSUANT TO THE AUTHORITY OF FAR 41103(b).
X
43.103(a) Bilateral Modifications: FAR 52.212-4 Contract Terms and
Conditions-Commercial Items (FEB 2002) (c) Changes
The Purpose of this Modification:
1) To extend the base performance period by one (1) year
2) To add funding for base performance period
3) Summarize the impact on award and obligation amounts
[SEAL]
and effect.
CONTRACTING OFFICER (Type or print) Dr. Stephen J. McAndrew, Vice President,
Business Dev. Antoinette Bridges, Contracting Officer
16C. DATE SIGNED /s/ Stephen J. McAndrew 7/29/04 /s/ Antoinette Bridges
8/2/04 (Signature of person authorized to sign) (Signature of Contracting
Officer)
PREVIOUS EDITION UNUSABLE
[SEAL]
Prescribed by GSA
PAGE OF PAGES 2 2
CONTRACT # :
273-03-C-0045
Xenogen Biosciences
MODIFICATION #
01
1) Based on mutual agreement between the parties involved, the base performance
period is extended by one (1) year making the Initial Award Year period a two
year period from September 25, 2003 through September 24, 2005.
2) Funding in the amount of $841,673.00 is obligated to fund the initial award
year.
3) The parties hereby mutually agree that the full force and effect of this
modification on all provisions is as follows:
a) The completion date of September 24, 2004 is hereby changed to September
24, 2005 by reason of this modification.
b) The contract award amount of $1,050,008 remains in effect and is unchanged
by reason of this Modification.
c) The contract obligation amount is changed from $208,335.00 to $1,050,008.00
SUMMARY FOR CLARIFICATION PURPOSES:
Awarded
Obligated
Prior to this Modification No. 01
$ 1,050,008.00 $ 208,335.00
Changed per this Modification No. 01
-0- 841,673.00
Current/New Totals:
$ 1,050,008.00 $ 1,050,008.00
Completion Date: September 24, 2005
All Other Terms and Conditions Remain Unchanged.
END OF MODIFICATION
CONTINUATION PAGE STANDARD FORM 30 (REV. 10-83)
PREVIOUS EDITION UNUSABLE
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Exhibit 99.1 List of the Filing Subsidiaries § DrugTech Corporation § FP1096, Inc. § K-V Discovery Solutions, Inc. § K-V Generic Pharmaceuticals, Inc. § K-V Solutions USA, Inc. § Ther-Rx Corporation § Zeratech Technologies USA, Inc.
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Exhibit 10.36
SEVERANCE AGREEMENT
This Severance and Redemption Agreement effective as of the 9th day of February,
2002, by and between Vital Images, Inc., a Minnesota corporation (“Company”) and
Albert Emola (“Employee”).
WHEREAS, Employee was employed by Company pursuant to an Employment Agreement
with Company dated December 27, 1999 (the “Employment Agreement”);
WHEREAS, pursuant to the Employment Agreement, Employee entered into an
Incentive Stock Option Agreement and a Non-Qualified Stock Option Agreement with
Company, each dated December 28, 1999 (collectively, the “Stock Option
WHEREAS, Employee is a shareholder of Company.
NOW, THEREFORE, in consideration for the promises and covenants contained
1. Definitions. We intend all words used in this Severance and
Redemption Agreement (“Agreement”) to have their plain meanings in ordinary
English. Specific terms we use in this Agreement have the following meanings:
A. Employee, as used herein, shall mean the undersigned Employee,
except that with respect to paragraphs 4.A. and 4.B. it shall also include
anyone who has obtained any legal rights or claims through the undersigned
Employee.
B. Company, as used herein, shall at all times mean Company and its
parent companies, its subsidiaries, successors and assigns, its affiliated and
predecessor companies, its successors and assigns, and the present or former
directors, officers, employees, representatives, and agents (including, without
limitation, their accountants and attorneys) of any of them, whether in their
administrators of any pension or other benefit plan applicable to Employee or
former employees of Company, in their official or individual capacities.
Employee has now to any relief of any kind from Company whether or not Employee
now knows about those rights, arising out of his employment with Company, and
his employment termination, including, but not limited to, claims arising under
the Age Discrimination in Employment Act; the Minnesota Human Rights Act; the
amended; or other federal, state or local civil rights laws; claims for breach
of contract; fraud or misrepresentation; defamation, intentional or negligent
infliction of emotional distress; breach of covenant of good faith and fair
dealing; promissory estoppel; negligence; wrongful termination of employment;
and any other claims for unlawful
employment practices; and claims for any compensation, bonus or wages in
addition to those payments set forth in Section 3.
D. Company’s Claims, as used herein, means all of the rights Company
now has to any relief of any kind from Employee, whether or not Company now
knows about those rights, arising out of Employee’s employment with Company or
his status as shareholder or officer.
2. Termination. On February 9, 2002, Employee’s employment with
Company was terminated. Employee and Company agree Employee will be relieved of
his duties with Company after February 9, 2002.
3. Company’s Obligations And Severance Agreements. In consideration
for Employee’s promises contained herein, specifically including, but not
limited to, the release of all Employee’s claims and Employee’s promises to
refrain from disclosing confidential information and trade secrets of Company,
A. Severance Payment. Pursuant to Section 4.2 of the Employment
Agreement, Company agrees to pay to Employee a severance payment of $192,000.00
(“Severance Payment”) which is equal to twelve (12) months of Employee’s salary
calculated at Employee’s regular rate of pay as of the date of this Agreement.
This Severance Payment will be payable in one lump sum within ten (10) days
after the expiration of the Rescission Periods, as defined herein. The
Severance Payment shall be subject to federal and state withholding taxes and
FICA.
B. Incentive Compensation. Employee acknowledges that Company has
paid Employee an Incentive Bonus (“Bonus”) for the 2001 calendar year in the
amount of $85,092.00, and that the Bonus is in full satisfaction of any and all
claims or rights Employee may have to a bonus including, but not limited to, any
and all claims or rights for a bonus under Section 2 of the Employment
Agreement.
C. Vacation. Company agrees that in lieu of all accrued vacation pay
due to Employee, Employee shall be entitled to retain the February 15 and
February 28 regular payroll payments made erroneously to Employee. Employee
acknowledges receipt of said payments.
D. Options. Company and Employee acknowledge and agree that the
schedule attached hereto as Exhibit A, incorporated herein by reference,
identifies the options granted to Employee and the extent to which said options
have vested through the date of termination. Employee acknowledges that any of
said vested options that have not been exercised within a period of three months
after termination of employment shall immediately terminate and will not
thereafter be exercisable.
E. Medical Insurance Benefits. Company, pursuant to federal and
group medical insurance coverage previously provided to Employee and his spouse
by Company. Through February 28, 2002,
2
Company will pay the premium for the group medical insurance that it paid during
Employee’s employment. After such date, Employee will be required to pay for
such benefits for the remainder of the COBRA Period, should Employee elect to
continue COBRA coverage.
F. Outplacement Payment. To assist Employee in obtaining a new
position and help defray the cost of outplacement services, the Company agrees
to pay Employee the aggregate sum of Twenty Thousand Dollars ($20,000). Said
payment shall be made to Employee with the payment due pursuant to paragraph 3A
above.
G. Computer/Palm Pilot. The Company agrees that Employee shall be
entitled to retain the computer and palm pilot he received on account of his
prior position with the Company.
H. Non-Disparagement. The Company agrees that its directors, senior
officials and managers shall not knowingly vilify, disparage, slander, or defame
Employee.
I. Confidentiality Of Agreement. Company agrees that it will keep
the terms and conditions of this Agreement strictly confidential except that the
Company may disclose the terms and conditions of this Agreement to its advisors
4. Employee Obligations. As material inducement to Company in
entering into this Agreement and providing the consideration described in
Section 3, Employee hereby agrees as follows:
A. Release. Employee agrees to release all Employee’s Claims,
misconduct by Company of which Employee does not have present knowledge.
Employee under Sections 3 are in exchange for the release of Employee’s Claims.
any litigation to vindicate any rights he may have had if he had not released
Employee’s Claims, except as may be necessary to enforce this Agreement.
Further, Employee agrees to pay Company’s attorneys fees if Employee breaches
C. Company Property. Employee will return all property belonging to
Company to Company immediately upon the execution of this Agreement, whether
such property is currently on or off the premises of Company, including, without
limitation, any and all computer hardware or computer software.
D. Confidentiality. Employee reaffirms his obligations within
paragraphs 3.4, 3.5 and 3.6 of the Employment Agreement.
E. Confidentiality Of Agreement. Employee agrees that he will keep
the terms and conditions of this Agreement strictly confidential except that
Employee may disclose the terms and conditions of this Agreement to his spouse,
attorney, tax preparer, government
3
agencies, or as required by law. Employee agrees that in the event that
Employee discloses any of the terms of this Agreement, including the fact of
payment other than as set forth above, he shall be liable to Company as set
forth in Section 4.G. of this Agreement and for any and all injuries or damages
sustained by Company including costs, disbursements and attorneys’ fees incurred
by Company as a direct result of any violation of this paragraph.
F. Non-Disparagement. Employee agrees that after the term of his
employment with Company, he will not knowingly vilify, disparage, slander or
defame the Company, including Company’s business or business practices.
promises set forth in Sections 4.C., 4.D., 4.E., and 4.F. will cause Company
irreparable harm for which there is no adequate remedy at law and Employee
therefore consents to the issuance of any injunction in favor of Company
enjoining the breach of any of those promises by any court of competent
jurisdiction. If any promise made by Employee in this Section 4 should be held
to be unenforceable because of its scope or duration, or the area or subject
matter covered thereby, Employee agrees that the court making such determination
shall have the power to reduce or modify the scope, duration, subject matter or
area of that promise to the extent that allows the maximum scope, duration,
subject matter or area permitted by applicable law. Employee further agrees
that the remedies provided for herein are in addition to, and are not to be
construed as replacements for, or a limitation of, rights and remedies otherwise
available to Company.
5. Employee’s Understandings. Employee acknowledges and represents
that:
attorney regarding the meaning and effect of this Agreement.
Agreement in which to consider whether or not to sign this Agreement and that,
having been advised of that entitlement, he may elect to sign this Agreement at
any time prior to the expiration of that time period.
of this Agreement with respect to claims arising under the Age Discrimination in
Employment Act (“ADEA Rescission Period”) and that he may rescind within fifteen
(15) calendar days of signing the Agreement the provisions of Section 4.A. of
this Agreement with respect to claims arising under the Minnesota Human Rights
Act (“MHRA Rescission Period”) (collectively, “Rescission Periods”). To be
effective, rescission must be in writing, delivered to Company at Vital Images,
Inc., 3300 Fernbrook Lane N., Suite 200, Plymouth, MN 55447, within the
applicable rescission period, or sent to Company, at such address, by certified
mail, return receipt requested, postmarked within the applicable rescission
period.
6. Cancellation Of Agreement By Company. If Employee exercises his
right of rescission under Section 5C of this Agreement, Company will have the
right, exercisable by written notice
4
delivered to Employee, to terminate this Agreement in its entirety in which
event Company will have no obligation whatsoever to Employee hereunder. If
Employee exercises his right of rescission under Section 5.C. of this Agreement,
and Company does not exercise its right to terminate this Agreement hereunder,
the remaining provisions of this Agreement (including specifically the remaining
provisions of Section 5 of this Agreement) shall remain valid and continue in
7. Performance By Employee and Company. Nothing contained herein
shall operate as a waiver or an election of remedies by either party should the
other party fail to perform any duty or obligation imposed upon them hereunder.
the duties and obligations hereunder shall continue in full force and effect
irrespective of any violation of any term or provision of this Agreement by
Employee.
8. No Admission Of Liability. The parties agree that this Agreement
shall not be considered an admission of liability by Company. Company expressly
denies that it is in any way liable to Employee or that it has engaged in any
9. Employee Acknowledgments. Employee acknowledges and represents
that: (a) he has read this Agreement and understand its consequences; (b) he
has received adequate opportunity to read and consider this Agreement; (c) he
has determined to execute this Agreement of his own free will and acknowledges
that he has not relied upon any statements or explanations made by Company
regarding this Agreement; and (d) the promises of Company made in this Agreement
constitute fair and adequate consideration for the promises, releases and
agreements made by Employee in this Agreement.
10. Entire Agreement. This Agreement, including any exhibits attached
hereto or documents expressly referred to herein, contains the entire agreement
between Company and Employee and supersedes and cancels any and all other prior
agreements, whether oral or in writing, between Company and Employee with
12. Effective Date. This Agreement was originally offered to Employee
on or about February 21, 2002. Employee shall have until the close of business
on March 14, 2002 to accept this Agreement. If Employee desires to accept this
and void as of the close of business on March 14, 2002.
13. Counterparts. This Agreement may be executed in counterparts with
an executed counterpart to be delivered to the other party. Each such executed
instrument. For purposes of execution of this Agreement, the parties agree a
facsimile signature will be treated the same as an original signature; however,
the parties agree to provide one another with original signatures after
execution.
5
Dated:
March 25, 2002
By:
/s/Douglas M. Pihl
Its:
Chairman
Dated:
March 14, 2002
Albert Emola
6
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Exhibit 10.39
RESTRICTED STOCK AGREEMENT
THIS RESTRICTED STOCK AGREEMENT is made as of the day of , 200 ,
1. Award.
(a) Shares. Pursuant to the Christopher & Banks Corporation 2005
( ) shares (the “Restricted Shares”) of the Company’s common stock, par
value $0.01 per share (“Stock”), shall be issued as hereinafter provided in
Employee’s name subject to certain restrictions thereon.
retirement on or after age sixty-five, (ii) death or (iii) disability as
determined by the Company or employing subsidiary, or except as otherwise
Company upon termination of employment are herein referred to as “Forfeiture
1
Percentage of Total
Number of Restricted Shares
as to which Forfeiture
Lapse Date or Dates
Restrictions Lapse
, 20
%
disability (as determined by the Company or employing subsidiary) or normal
retirement on or after age sixty-five. In the event Employee’s employment is
terminated for any other reason, including retirement prior to age sixty-five
the Committee’s or such delegate’s sole discretion, approve the lapse of
the Plan and this award. Upon request of the Committee or its delegate,
to the Restricted Shares then subject to the Forfeiture Restrictions. Upon the
Employee for the shares upon which Forfeiture Restrictions lapsed.
issuance or delivery thereof shall constitute a
2
amount of money as the Company may require to meet its withholding obligation
resulting compensation income.
the Employee and this Agreement shall not affect in any way the right of the
Company or its subsidiaries to terminate the employment of the Employee. For
3
CHRISTOPHER & BANKS
CORPORATION
By:
Matthew P Dillon
Chief Executive Officer
EMPLOYEE
Signed:
Printed Name:
4
Please Check Appropriate Item (One of the lines must be checked):
to me.
* I acknowledge that the Company has suggested that before this block is checked
Social Security Number
for stock registry)
(if applicable)
Address (Street)
Birth Date
Address (City)
Name of Employer
Day phone number
5
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12/12/16Exhibit 99.1 First Foundation Completes Branch Acquisition Transaction IRVINE, Calif. – December 12, 2016 – First Foundation Inc. (NASDAQ: FFWM), a financial services company with two wholly-owned operating subsidiaries, First Foundation Advisors and First Foundation Bank, today announced the completion of the previously announced acquisition of two branches with approximately $180 million in deposits from Pacific Western Bank. The branches are located in Laguna Hills and Seal Beach, California. The two branches will operate as branches of First Foundation Bank. The acquisition will increase First Foundation Bank’s branches to nine in the state of California, with branches also located in Las Vegas, Nevada, and Honolulu, Hawaii. “We are excited to announce the completion of the acquisition of these two branches,” said Scott F. Kavanaugh, CEO, First Foundation Inc. “The new locations expand our footprint in Southern California and align well with our relationship-driven approach to serving clients and supporting the local community.” First Foundation offers its clients a high-touch, comprehensive platform of bank, trust, insurance, and wealth management solutions. About First Foundation First Foundation, a financial institution founded in 1990, provides private wealth management, personal banking, and business banking. The Company has offices in California, Nevada, and Hawaii with headquarters in Irvine, California. For more information, please visit www.ff-inc.com. Contact: First Foundation Inc.
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