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UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 10-Q (Mark One) x QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the quarterly period ended March 31, 2013 OR o TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the transition period from to Commission File Number 033-25126-D MedeFile International, Inc. (Exact name of registrant as specified in its charter) Nevada 85-0368333 State or other jurisdiction of (I.R.S. Employer incorporation or organization Identification No.) 301 Yamato Rd, Suite 1200 Boca Raton, FL33431 (Address of principal executive offices) (Zip Code) Registrant’s telephone number, including area code (561) 912-3393 Copies to: Richard A. Friedman, Esq. Jeff Cahlon, Esq. Sichenzia Ross Friedman Ference LLP 61 Broadway, 32nd Floor New York, New York 10006 Phone: (212) 930-9700 Fax: (212) 930-9725 Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. YesxNo o Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).YesxNo o Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, or a non-accelerated filer. See definition of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one): Large accelerated filer o Accelerated filer o Non-accelerated filer o Smaller reporting company x Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yeso No x Number of shares outstanding of registrant’s class of common stock, par value $0.0001 (the “Common Stock”) 25,685,470 as of May 15, 2013. 1 Table of Contents Table of Contents Page PART I FINANCIAL INFORMATION 3 ITEM 1. Financial Statements 15 ITEM 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations 17 ITEM 3. Quantitative and Qualitative Disclosures about Market Risk 17 ITEM 4. Controls and Procedures 17 PART II OTHER INFORMATION ITEM 1. Legal Proceedings 17 ITEM 1A. Risk Factors 17 ITEM 2. Unregistered Sales of Equity Securities and Use of Proceeds 17 ITEM 3. Defaults Upon Senior Securities 17 ITEM 4. Mine Safety Disclosures 17 ITEM 5. Other Information 17 ITEM 6. Exhibits 18 Signatures 19 2 Table of Contents Item 1. Financial Statements. Medefile International, Inc. Condensed Consolidated Balance Sheets March 31 December 31, Assets (unaudited) Current assets Cash $ $ Accounts receivable, net Inventory Merchant services reserve Prepaid insurance - Total current assets Website development, net of accumulated amortization Furniture and equipment, net of accumulated depreciation Intangibles Total assets $ $ Liabilities and Stockholders' (Deficit) Current Liabilities Accounts payable and accrued liabilities $ $ Deferred revenues Derivative liability Total Current Liabilities Stockholders' (Deficit) Preferred stock, $.0001 par value: 10,000,000 authorized, no shares issued and outstanding - - Common stock, $.0001 par value: 100,000,000 authorized; 11,813,189 and 11,413,189 shares issued and outstanding on March31, 2013 and December 31, 2012, respectively Additional paid in capital Accumulated deficit ) ) Total stockholders' (deficit) ) ) Total liability and stockholders'(deficit) $ $ The accompanying notes are an integral part of these consolidated financial statements 3 Table of Contents Medefile International, Inc. Condensed Consolidated Statements of Operations (Unaudited) The Three Months Ended March 31, Revenue $ $ Cost of goods sold 66 Gross profit Operating expenses Selling, general and administrative expenses Depreciation and amortization expenses Total operating expenses Loss from operations ) ) Other income (expenses) Gain (loss) on changes in fair value of derivative liabilities - Total other income (expense) - Loss before income tax ) Provision for income tax - - Net loss $ $ ) Net loss per share: basic and diluted $ $ ) Weighted average share outstanding basic and diluted The accompanying notes are an integral part of these consolidated financial statements 4 Table of Contents Medefile International, Inc. Condensed Consolidated Statements of Cash Flows (Unaudited) The Three Months Ended March 31, Cash flows from operating activities Net loss $ $ ) Adjustments to reconcile net loss to net cash used in operating activities: Depreciation and amortization Stock based services - (Gain)lossin fair value of derivitave liabilities ) - Changes in operating assets and liabilities Accounts receivable ) Inventory 66 Prepaid insurance Accounts payable and accrued liabilities ) Merchant services reserve - ) Deferred revenue ) ) Net Cash used in operating activities ) ) Cash flows from investing activities Website development ) - Net cash used in investing activities ) - Cash flow from financing activities Proceeds from common stock sale - Net cash provided by financing activities - Net increase (decrease) in cash and cash equivalents ) ) Cash and cash equivalents at beginning of period Cash and cash equivalents at end of period $ $ Supplemental disclosure of cash flow information Cash paid for interest $
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Name: Council Regulation (EEC) No 3523/85 of 10 December 1985 amending for the sixth time Regulation (EEC) No 1837/80 on the common organization of the market in sheepmeat and goatmeat
Type: Regulation
Subject Matter: agricultural structures and production; agricultural policy; regions and regional policy; animal product
Date Published: nan
No L 336/2 Official Journal of the European Communities 14. 12. 85 COUNCIL REGULATION (EEC) No 3523/85 of 10 December 1985 amending for the sixth time Regulation (EEC) No 1837/80 on the common organization of the market in sheepmeat and goatmeat THE COUNCIL OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Economic Community, and in particular Article 43 thereof, Having regard to the proposal from the Commission ('), Having regard to the opinion of the European Parl iament (2), Whereas, in certain areas of the Community there is , for sheepmeat and goatmeat, a close similarity between farming and marketing techniques, production costs and consumption habits , such that producers of goatmeat in those areas should qualify from the 1986 marketing year onwards for the premium referred to in Article 5 of Regu lation (EEC) No 1 837/80 (3), as last amended by Regula tion (EEC) No 1312/85 (4), that is granted to sheepmeat producers ; whereas for the same reasons provision should be made to extend the premium scheme to the mountain areas defined in Article 3 of Directive 75/268/EEC (*), as last amended by Regulation (EEC) No 797/85 (6) ; Whereas in certain aereas of the Community where natural and climatic conditions are particularly severe, the first lambing of ewes used for flock replacement cannot take place at the normal age ; whereas premiums should therefore be granted in respect of certain of these ewes ; Whereas in both cases described above, since the produc tion costs are lower than in the case of ewes already eligible, the premium paid should be a percentage only of that granted for ewes already eligible ; Whereas the Council should, before 1 March 1986 , deter mine the areas of Spain and Portugal in which the premium intended to offset the income loss of goatmeat producers will be paid, 1 . Article 5 shall be replaced by the following : 'Article 5 1 . To the extent necessary to offset an income loss by sheepmeat producers in one or more regions during a marketing year, a premium shall be granted ; further more , with effect from the beginning of the 1986 marketing year, in order to offset an income loss by goatmeat producers, an premium shall be granted : on one hand, in the areas referred to in Annex III , on the other hand, in the mountain areas within the meaning of Article 3 (3) of Directive 75/268/EEC, other than the areas referred to in Annex III to this Regulation , provided that it is established following the procedure referred to in Article 26 that the production of those areas meets the two following criteria : (a) the goat rearing is mainly directed towards the production of goatmeat ; (b) the goat and sheep rearing techniques are similar in nature . The amount of these premiums shall be fixed immedi ately after the end of the marketing year. 2 . The income loss referred to in paragraph 1 shall be deemed to be any difference , per 100 kilograms carcase weight, between the basic price referred to in Article 3 ( 1 ) and the arithmetic mean of the market prices recorded for the region in question in accor dance with Article 4. 3 . The premium payable per ewe in each region shall be obtained by multiplying the income loss referred to in paragraph 2 per 100 kilograms carcase weight by a coefficient expressing for each region the normal annual production of lambmeat per ewe in 100 kilograms carcase weight . Furthermore , with regard to the areas specified in para graph 1 , first subparagraph , first and second indents, the premium payable per she-goat from the beginning of the 1986 marketing year shall be 80 % of the amount payable per ewe in those areas . 4 . If, however, for one or more of the regions within the meaning of Article 3 (5), the probable trend in market prices as referred to in Article 4 and of the variable premium referred to in Article 9 indicate that an income loss is likely during the course of the marketing year, the Member State(s) concerned may, by means of the procedure laid down in Article 26, be authorized to make an advance payment in the HAS ADOPTED THIS REGULATION : Article 1 Regulation (EEC) No 1837/80 is hereby amended as follows : ( ) OJ No C 67, 14 . 3 . 1985, p . 66 . (2) OJ No C 94, 15 . 4 . 1985, p . 98 . (3) OJ No L 183 , 16 . 7 . 1980 , p . 1 . (4) OJ No L 137, 27 . 5 . 1985, p . 22 . O OJ No L 128 , 19 . 5 . 1975, p . 1 . 6) OJ No L 93 , 30 . 3 . 1985 , p . 1 . 14. 12. 85 Official Journal of the European Communities No L 336/3 region(s) in question to sheepmeat producers and, as far as the areas specified in paragraph 1 , first subpara graph 1 , first and second indents are concerned, from the beginning of the 1986 marketing year to goatmeat producers, where such producers are based in less favoured areas defined under Article 3 (3), (4) and (5) of Directive 75/268 /EEC. The amount of the final premium shall be determined after the end of the marketing year, in accordance with paragraphs 1 , 2 and 3 , and any balance shall be paid to producers in the less-favoured agricultural areas referred to in the first subparagraph . 5 . When a ewe premium is granted for region 2, and upon application from interested parties : a ewe premium equal to the premium payable per ewe in region 2 may be granted in region 1 to producers who show to the satisfaction of the competent authority that no lambs from the ewes that they hold have been slaughtered before the age of two months ; a she-goat equal to 80 % of the premium payable per ewe in region 2 may be granted to producers in the areas of region 1 , specified in Annex III , who show to the satisfaction of the competent authority that no kids from the she-goats that they hold have been slaughtered before the age of two months . mined in accordance with the procedure laid down in Article 26 . 9 . The Council , acting by qualified majority on a proposal from the Commission , shall adopt general rules for implementing this Article, and in particular shall define which producers may receive the premium and which ewes, and in the areas specified in para graph 1 , first subparagraph, first and second indents, which goats, shall be eligible . The Council , by the same procedure : may extend the premium scheme to certain moun tain-breed ewes raised in precisely defined areas presenting particularly difficult production condi tions, that do not qualify as eligible ewes : in such cases the premium payable shall be 80 % of that for eligible ewes ; may specify that the premium is to be granted only to producers keeping a minimum number of ewes or, in the case of the areas specified in paragraph 1 , first subparagraph, first and second indents, a minimum number of ewes and/or she-goats ; shall decide, before 1 March 1986, with regard to Spain and Portugal on the areas other than those referred to in the first subparagraph, of paragraph 1 , second indent, in which the premium to offset an income loss of goatmeat producers shall be granted. 10 . The Commission, acting in accordance with the procedure laid down in Article 26 : shall fix as appropriate the premium payable per ewe in each region and in the areas specified in paragraph 1 , first subparagraph, first and second indents, that payable per ewe and she-goat ; shall adopt implementing rules for this Article covering, in particular, the submission of premium applications, monitoring arrangements and payment of the premium. 11 . Expenditure under the scheme provided for in this Article shall be deemed to form part of interven tion for the purspose of stabilizing agricultural markets .' 2 . Annex III to this Regulation shall be added . 6 . In region 5 the income loss shall , where the vari able premium referred to in Article 9 is paid, be reduced by the weighted average of the variable premiums actually granted . This average, which shall be expressed as an amount per 100 kilograms carcase weight, shall be obtained by dividing the total amount of premiums actually granted by the weight of the certified animals for which the variable premium may be paid on slaughter or, as appropriate, when they are first placed on the market . 7 . For the purpose of determining the arithmetic mean of market prices as referred to in paragraph 2 when the intervention measures referred to in Article 6 ( 1 ) (b) are applied in a region , the market price shall , for the period during which buying in actually takes place, be replaced by the seasonally adjusted interven tion price . Article 2 This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Communities. It shall apply from the beginning of the 1986 marketing year . 8 . Premiums shall be paid to recipient producers on the basis of the number of ewes and/or she-goats kept on their holding over a minimum period to be deter No L 336/4 Official Journal of the European Communities 14. 12 . 85 This Regulation shall be binding in its entirety and directly applicable in all Member States . Done at Brussels , 10 December 1985 . For the Council The President M. FISCHBACH ANNEX ANNEX III 1 . France : 2 . Greece : 3 . Italy : Corsica . the whole country . Lazio , Abruzzo, Molise , Campania , Apulia, Basilicata, Calabria , Sicily and Sardinia.'. |
Exhibit 10.2
AMENDMENT NUMBER ELEVEN TO LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NUMBER ELEVEN TO LOAN AND SECURITY AGREEMENT (this
“Amendment”), dated as of August 28, 2003, is entered into between and among, on
WELLS FARGO FOOTHILL, INC., a California corporation, formerly known as Foothill
Capital Corporation, as the arranger and administrative agent for the Lenders
(“Agent”), and, on the other hand, HYPERCOM CORPORATION, a Delaware corporation
(“Parent”), and each of Parent’s Subsidiaries identified on the signature pages
hereof (such Subsidiaries are referred to hereinafter each individually as a
“Borrowers”), with reference to the following:
WHEREAS, Borrowers and Parent previously entered into that certain
Loan and Security Agreement, dated as of July 31, 2001, as amended by Amendment
Number One to Loan and Security Agreement dated as of October 3, 2001, by
Amendment Number Two to Loan and Security Agreement dated as of November 13,
2001, by Amendment Number Three to Loan and Security Agreement dated as of
February 13, 2002, by Amendment Number Four to Loan and Security Agreement dated
as of June 24, 2002, by Amendment Number Five to Loan and Security Agreement
dated as of December 23, 2002, by Amendment Number Six to Loan and Security
Agreement dated as of March 5, 2003, by Amendment Number Seven to Loan and
Security Agreement dated as of March 28, 2003, by Amendment Number Eight to Loan
and Security Agreement dated as of May 12, 2003, by Amendment Number Nine to
Loan and Security Agreement and other Loan Documents dated as of June 30, 2003,
and by Amendment Number Ten to Loan and Security Agreement dated as of
August 14, 2003, (as the same may be further amended, restated, supplemented, or
otherwise modified from time to time, the “Loan Agreement”), with Agent and
Lenders pursuant to which Lenders have made certain loans and financial
accommodations available to Borrowers and Parent;
WHEREAS, Borrowers have requested that the Lender Group agree to amend
the Loan Agreement as set forth herein; and
WHEREAS, subject to the satisfaction of the conditions set forth
herein, the Lender Group is willing to so amend the Loan Agreement.
amended hereby.
1
2. AMENDMENT TO LOAN AGREEMENT.
restating the following definition in its entirety as follows:
“Permitted Restricted Payments” means (a) dividends, loans, or
advances to Parent to enable Parent to make payment of its general operating
expenses and federal, state, local and foreign tax obligations then due and
owing and incurred in the ordinary course of business if and so long as Parent
(i) immediately uses the proceeds of such dividends, loans, or advances solely
to satisfy such obligations and (ii) does not use such to satisfy the
obligations of any other Person through the satisfaction of a guaranty or
otherwise, and (b) any purchase, acquisition, redemption, or retirement by
Parent of any class of its outstanding Stock on or before September 30, 2003, in
an aggregate amount not in excess of $10,000,000.
authorized official of Guarantor;
Governmental Authority against Borrower, Guarantors, or the Lender Group.
4. CONSTRUCTION. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
5. ENTIRE AMENDMENT; EFFECT OF AMENDMENT. This Amendment, and terms and
the Loan Agreement
2
expressly set forth in Section 2 hereof, the Loan Agreement and other Loan
Documents shall remain unchanged and in full force and effect. Except as
Lender Group as in effect prior to the date hereof. The agreements set forth
excuse future non-compliance with the Loan Agreement, and shall not operate as a
6. COUNTERPARTS; TELEFACSIMILE EXECUTION. This Amendment may be executed in
7. MISCELLANEOUS.
3
HYPERCOM CORPORATION,
a Delaware corporation HYPERCOM EMEA, INC.,
fka Hypercom Europe Limited, Inc.,
an Arizona corporation By: /s/ John W. Smolak
Name: John W. Smolak
Chief Financial and Administrative Officer By: /s/ John W. Smolak
Title: Executive Vice President HYPERCOM U.S.A., INC.,
a Delaware corporation HYPERCOM MANUFACTURING RESOURCES, INC.,
Title: Executive Vice President By: /s/ John W. Smolak
Title: Executive Vice President HYPERCOM LATINO AMERICA, INC.,
an Arizona corporation EPICNETZ, INC.,
a Nevada corporation By: /s/ John W. Smolak
Title: Executive Vice President WELLS FARGO FOOTHILL, INC.,
a California corporation, formerly known as
Foothill Capital Corporation, as Agent and as
a Lender By: /s/ John Nocita
Name: John Nocita
Title: Vice President
Exhibit A
REAFFIRMATION AND CONSENT
shall have the meanings ascribed to them in that certain Loan and Security
Agreement by and among the lenders identified on the signature pages thereof
as Foothill Capital Corporation, as the arranger and administrative agent for
signature pages thereof (such Subsidiaries are referred to hereinafter each
severally, as the “Borrowers”), dated as of July 31, 2001, as amended by
Amendment Number One to Loan and Security Agreement dated as of October 3, 2001,
by Amendment Number Two to Loan and Security Agreement dated as of November 13,
Security Agreement dated as of March 28, 2003, by Amendment Number Eight to the
Loan and Security Agreement dated as of May 12, 2003, by Amendment Number Nine
to Loan and Security Agreement and other Loan Documents dated as of June 30,
2003, and by Amendment Number Ten to Loan and Security Agreement dated as of
otherwise modified from time to time, the “Loan Agreement”), or in Amendment
Number Eleven to Loan and Security Agreement dated as of August 28, 2003 (the
“Amendment”), among Parent, the Borrowers and the Lender Group. The undersigned
(b) consents to the transactions contemplated by the Amendment and the execution
and delivery thereof; (c) acknowledges and reaffirms its obligations owing to
the Lender Group under the Guaranty and any other Loan Documents to which it is
is and shall remain in full force and effect. Although the undersigned has been
same, it understands that the Lender Group has no obligations to inform it of
California.
HYPERCOM CORPORATION,
a Delaware corporation
By: /s/ John W. Smolak
HYPERCOM DO BRASIL INDUSTRIA E
COMERCIO LIMITADA (BRAZIL), an
organization organized under the laws of
Brazil
By: Hypercom U.S.A., Inc.,
its shareholder By: /s/ John W. Smolak Name: John W. Smolak
Title: Executive Vice President By: Hypercom Latino America, Inc.,
|
Exhibit 10.2
SECURITIES PURCHASE AGREEMENT
WHEREAS:
the aggregate principal amount of $414,500.00 (together with any note(s) issued
in such Note.
agree as follows:
the 1933 Act.
Investor”).
2
warranties made herein.
lending arrangement.
3
4
5
of the Company consists of: (i) 333,333,333 authorized shares of Common Stock,
$0.001 par value per share, of which 21,206,794 shares are issued and
and 8,000,000 shares are reserved for issuance upon conversion of the Note. All
Closing Date.
holder thereof.
6
7
8
authority.
9
trustee or partner.
10
hereby.
11
liability coverage.
12
employee.
an Investment Company.
of the Note.
4. COVENANTS.
Agreement.
working capital purposes.
13
reimburse Buyer’ expenses shall be $5,000.00.
14
whose Common Stock is listed for trading on the Pink Sheets, OTCQX, OTCBB,
Nasdaq, Nasdaq SmallCap, NYSE or AMEX.
Company.
security being required.
15
sole discretion:
16
17
18
Agreement.
hereof.
19
HYDROCARB ENERGY CORPORATION
Houston, TX 77024
Houston, Texas 77002
Naidich Wurman LLP
20
transactions contemplated hereby.
m Remedies. The Company acknowledges that a breach by it of its
required.
21
HYDROCARB ENERGY CORPORATION
By:
KENT P. WATTS
Chief Executive Officer
By:
Name: Curt Kramer
Title: President
AGGREGATE SUBSCRIPTION AMOUNT:
$
414,500.00
Purchase Price:
$
405,000.00
Original Issue Discount:
$
9,500.00
Tranche #1 VVG-1069 (HECC)
March 31, 2015
kent@hydrocarb.com;
jchristian@csj-law.com;
dloev@lovelaw.com
22
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Exhibit 10.65
October 19, 2007
David Cunningham
51 Summit Road
Riverside, CT 06878
Dear David,
as Vice President Worldwide Sales, reporting directly to Steven R. Springsteel,
Chairman, President and CEO. The terms of your employment are detailed as
follows:
Your annual base salary will be $300,000.00 less payroll deductions and all
required withholdings and will be payable bi-monthly in increments of $12,500.00
on the fifteenth and last day of each month. You will have a total bonus target
equal to 83.33% of your base salary at 100% attainment of all objectives under
Chordiant’s 2008 Vice President Worldwide Sales Incentive Bonus
Program. Under Chordiant’s 2008 Vice President Global Sales Incentive Bonus
Program 75% of your target bonus would be earned at 100% achievement of Sales
Plan objectives, and 25% of your target bonus would be earned at 100%
achievement of the objectives of the 2008 Executive Incentive Plan. Chordiant
will have the sole discretion to determine if you have earned this bonus and,
the amount of the bonus. You must be employed by Chordiant on the date such
bonuses are paid in order to earn any bonus.
Subject to Board approval, you will be granted an option to purchase 75,000
In addition, The Company will recommend to the Compensation Committee of the
Board of Directors that the Board grant you an award under our 2008-2009
Performance Share Unit Program (the "PSUP") covering 10,000 shares at target
performance levels and 15,000 shares at maximum performance levels. This award
is a performance-based restricted stock unit award and is granted subject to the
terms of the PSUP and the Company's 2005 Equity Incentive Plan. The number of
shares under the award that you actually earn and become vested in will be
determined shortly after the close of the Company's 2009 fiscal year, based on
the Company's achievement of the performance metrics determined under the PSUP
and subject to your continued service to the Company through the date on which
met.
program as approved by Chordiant's Board of Directors.
Employee Handbook.
requirements.
This offer is valid through October 25th, 2007. Please sign below to indicate
your acceptance of this offer and return by fax to Human Resources at 408
517-5035 (fax). Please send an original signed copy in the pre-addressed
enclosed envelope. Details regarding orientation will be mailed to you prior to
offices.
Sincerely,
Jack Landers
Vice President, Human Resource
Accepted: /s/ David Cunningham Date Signed: October 22, 2007 Monday Start
|
Exhibit 10.3
{EMPNAME}
{EMPNUM}
applicable country-specific provisions. This Performance Restricted Stock Unit
Agreement, together with Appendix A and Appendix B, is referred to as the
“Agreement”). The grant of Performance RSUs reflects the Company’s confidence in
the Participant’s commitment and contributions to the success and continued
growth of the Company. All terms not defined in this Agreement shall have the
1.
2.
Vesting and Conversion.
(a)
listed.
(b)
(c)
(d)
respect to the Initial Grant
1
VERSION 10/16
Number of Shares underlying the Performance RSUs, regardless of whether the
Participant terminates employment prior to the Vesting Date. In the event the
Participant becomes Disabled after the end of the Performance Period, the
Unvested Performance RSUs shall vest with respect to the number of Shares
underlying the Performance RSUs that would have vested in accordance with
Appendix regardless of whether the Participant continues employment through the
Vesting Date. “Disabled” with respect to the Participant means, when and if, as
a result of disease, injury or mental disorder, the Participant is incapable of
(e)
Company.
3.
Restrictions on Transfer.
(a)
(b)
4.
5.
6.
Withholding Taxes.
(a)
(b)
(i)
Items required to be withheld with respect to the Shares. The cash equivalent of
the Shares withheld will be used to settle the obligation to
2
VERSION 10/16
withhold the Tax-Related Items (determined by reference to the closing price of
the Common Stock on the NASDAQ Global Select Market on the applicable vesting
date); or
(ii)
Participant; or
(iii)
Company under the Exchange Act, then the Company will withhold a sufficient
number of whole Shares otherwise issuable upon the vesting of the Performance
RSUs pursuant to (i) above, unless the use of such withholding method is
will be satisfied pursuant to (iii).
rates, including maximum applicable rates. If the obligation for Tax-Related
responsibility.
7.
herein.
8.
set forth in this Agreement and any other RSU grant materials by and among, as
personal information about him/her, including, without limitation, the
The Participant understands that Data will be transferred to Fidelity (or one of
its subsidiaries) or such other stock plan service provider as may be selected
by the Committee in the future (any such entity, “Broker”), which is assisting
Participant’s country. The Participant understands that, if he or she resides
the Company, the Broker and any other possible recipients that may assist the
and managing the participation of Participant and other participants in the
Data, request information about the storage and processing of Data, require any
3
VERSION 10/16
consent is that the Company would not be able to grant the RSUs or other equity
will not affect the Participant’s employment status or service with the
Employer; the only consequence of refusing or withdrawing consent is it affects
9.
Participant.
10.
Miscellaneous.
(a)
(b)
Performance RSUs should in no event be considered as compensation for, or
relating in any way to, past services for the Company or the Employer.
(c)
and value of same, is not part of normal or expected compensation or salary.
Further, the Performance RSUs and the Shares, and the income and value of same,
(d)
(e)
(f)
4
VERSION 10/16
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(n)
(o)
(p)
(q)
(r)
countries
5
VERSION 10/16
(s)
(t)
(u)
(v)
(w)
indirectly, acquire, sell, or attempt to sell Shares or rights to Shares under
information” regarding the Company (as defined by the laws in the applicable
jurisdictions or the Participant’s country). Any restrictions under these laws
(x)
exchange control and/or tax reporting requirements as a result of the vesting of
the Performance RSUs, the acquisition, holding, and/or transfer of Shares or
cash resulting from participation in the Plan and/or the opening and maintenance
of a brokerage or bank account in connection with the Plan. The Participant may
be required to report such assets, accounts, account balances and values and/or
related transactions to the applicable authorities in his or her country. The
the Participant’s personal legal advisor on these matters.
(y)
s
V
Ray Stata Vincent Roche
6
VERSION 10/16
APPENDIX A TO
1.
2.
3.
4.
Date.
5.
formula:
Payments)
the Performance Period.
APPENDIX A - 1
VERSION 10/16
APPENDIX A TO
Payout Percent
Performance Parameters
0%
0
100%
{PERFSHARESGRANTED}
200%
{MAXPOTENTIALSHARES}
APPENDIX A - 2
VERSION 10/16
APPENDIX B TO
in the respective countries as of October 2016. Such laws are often complex and
IRELAND
6635856-v9\GESDMS
APPENDIX B - 1
VERSION 10/16 |
Name: Commission Regulation (EEC) No 3881/90 of 19 December 1990 amending Regulation (EEC) No 606/86 laying down detailed rules for applying the supplementary trade mechanism to milk products imported into Spain from the Community of Ten
Type: Regulation
Date Published: nan
No L 367/124 Official Journal of the European Communities 29. 12. 90 COMMISSION REGULATION (EEC) No 3881/90 of 19 December 1990 amending Regulation (EEC) No 606/86 laying down detailed rules for applying the supplementary trade mechanism to milk products imported into Spain from the Community of Ten THE COMMISSION OF THE EUROPEAN COMMUNITIES, continue to open up the Spanish market gradually, the said ceilings should be increased to 20 % ; whereas, for this purpose, the Annex to Commission Regulation (EEC) No 606/86 (*), as last amended by Regulation (EEC) No 3102/90 (*), should be replaced by the Annex hereto ; Having regard to the Treaty establishing the European Economic Community, Having regard to the Act of Accession of Spain and Portugal, and in particular Article 83 thereof, Whereas Community traders may export cheese to Spain only under certain restrictive conditions, concerning in particular the length of time they have been practising their trade ; whereas this rule should be derogated from for 1991 to the benefit of traders located in the territory of the former German Democratic Republic in order to allow them to export cheese to Spain ; Having regard to Council Regulation (EEC) No 569/86 of 25 February 1986 laying down general rules for applying the supplementary mechanism applicable to trade (*), as last amended by Regulation (EEC) No 3296/88 (2), and in particular Article 7 (1 ) thereof, Having regard to Council Regulation (EEC) No 3577/90 of 4 December 1990 on the transitional measures and adjustments required in the agricultural sector (3) as a result of the integration of the territory of the former German Democratic Republic into the Community, and in particular Article 3 thereof, Whereas pursuant to Article 5 (2) of Council Regulation (EEC) No 3792/85 the supplementary trade mechanism drawn up in respect of Community imports into Spain can apply to imports from Portugal where these show signs of a significant increase ; whereas such a situation is likely to arise in respect of trade in milk products between Portugal and Spain ; whereas the rules relating to the supplementary trade mechanism between the Community of Ten and Spain should therefore be extended to imports into Spain from Portugal and the ceilings given in the Annex raised accordingly ; whereas, in addition, in order to prevent abrupt changes in the traditional trade in cheese in the Community, specific quantities should be laid down for Portugal ; Having regard to Council Regulation (EEC) No 3792/85 of 20 December 1985 laying down the arrangements applying to trade in agricultural products between Spain and Portugal (4), and in particular the first subparagraph of Article 5 (1 ) thereof, Whereas, pursuant to the Act of Accession of Spain and Portugal, provision should be made for 1991 for the fixing of indicative ceilings for imports into Spain from the Community of Ten ; whereas, given the potential for exports from the Community of Ten, and in order to Whereas the Management Committee for Milk and, Milk Produccts has not delivered an opinion with the time limit set by its chairman, HAS ADOPTED THIS REGULATION : Article 1 Regulation (EEC) No 606/86 is hereby amended as follows : 1 . ' 1990' in Article 1 ( 1 ) is replaced by 1991 . 2. 'Article 2 (2) is replaced by the following : '2. As regards cheese, excluding curd, the indicative ceiling referred to in the Annex shall be broken down by category, prior to quarterly division, as follows : (') OJ No L 55, 1 . 3 . 1986, p. 106 . (2) OJ No L 293, 27. 10. 1988, p. 7. 0 OJ No L 353, 17. 12. 1990, p . 23 . 4) OJ No L 367, 31 . 12. 1985, p. 7. 0 OJ No L 58, 1 . 3. 1986, p. 28 . $ OJ No L 296, 27. 10 . 1990, p. 24. 29. 12. 90 Official Journal of the European Communities No L 367/125 (tonnes) Category Quantity Community of Ten Portugal 1 . Processed cheese 1 534 100 2. Havarti, fat content 60 % 1 972 \ 3 . Edammer in balls, Gouda 10 074 I 4. Soft, ripened cow's milk cheese 1 862 \ 5 . Cheddar, Chester 300 ll 5 a Fresh cheese falling within CN codes ex 0406 10, 0406 90 71 , 0406 90 91 , 0406 90 97, grated or powdered cheese, of all kinds, falling within CN code 0406 20, and cheeses manufactured exclusively from sheep's milk or goat's milk, the storage life of which does not exceed 45 days from the date of manufacture 900 568' 6. Other, excluding blue-veined cheese, Emmentaler, Gruyere, Parmigiano Reggiano, Grana Padano 4 027 i 3 . In Article 2a, the following second paragraph is added : 'However, until 31 December 1990, traders established for at least 12 months in the territory of the former German Democratic Republic shall not be required to have carried on export activities for at least 12 months.' 4. In the third indent of Article 3 ( 1 ), the words 'and the corresponding securities as indi cated in Article 4 shall be forfeit' are deleted. 5. The following Article 4a is inserted : 'Article 4a The provisions of this Regulation shall apply mutatis mutandis to imports from Portugal within the limit of the indicative ceilings set out in the Annex.' 6 . The Annex is replaced by the following : ANNEX Indicative ceilings (tonnes) CN code Description Quantity Community of Ten and Portugal ex 0401 Milk and cream not concentrated nor containing added sugar or other sweetening matter, other than in immediate packings of a net content not excee ding 2 litres ' ex 0403 Buttermilk, curdled milk and cream, yoghurt, kephir and other fermented or acidified milk and cream, not concentrated or containing added sugbar or other sweetening matter, nor flavoured, nor containing added fruit or cacao other than in immediate packings of a net content not excee ding 2 litres 347 600 ex 0404 Whey, not concentrated nor containing added sugar or other sweetening matter ; products consis ting of natural milk constituents, other than in immediate packings of a net content not excee ding 2 litres 1 No L 367/126 Official Journal of the European Communities 29 . 12. 90 (tonnes) CN code Description Quantity Community of Ten and Portugal ex 0401 Milk and cream, not concentrated nor containing added sugar or other sweetening matter in imme diate packings of a net content not exceeding 2 litres \ ex 0403 Buttermilk, curdled milk and cream, yoghurt, kephir and other fermented or acidified milk and cream, not concentrated nor containing added sugar or other sweetening matter, nor flavoured, or containing added fruit or cocoa, in immediate packings of a net content not exceeding 2 litres 87 400 ex 0404 Whey, not concentrated or containing added sugar or other sweetening matter ; products consisting of natural milk constituents, in immediate packings of a net content not exceeding 2 litres i 0405 Butter and other fats and oils derived from milk 2 930 Community of Ten Portugal ex 0406 Cheese, excluding curd, Emmentaler, Gruyere, blue-veined cheese, Parmigiano Reggiano and Grana Padano 20 669 668' Article 2 This Regulation shall enter into force on 1 January 1991 . This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Brussels, 19 December 1990 . For the Commission Ray MAC SHARRY Member of the C.nmmissinn |
Exhibit 10.1
NOTE
Date: February 8, 2012
Place for Payment:
Principal Amount:
law.
of protest.
more than one.
Claimsnet.com, Inc.
By:
Don Crosbie, CEO
MAKER
|
Name: Commission Regulation (EC) No 192/2000 of 27 January 2000 establishing the standard import values for determining the entry price of certain fruit and vegetables
Type: Regulation
Date Published: nan
nan |
UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM N-Q QUARTERLY SCHEDULE OF PORTFOLIO HOLDINGS OF REGISTERED MANAGEMENT INVESTMENT COMPANIES Investment Company Act file number 811- 4651 John Hancock Strategic Series (Exact name of registrant as specified in charter) 601 Congress Street, Boston, Massachusetts 02210 (Address of principal executive offices) (Zip code) Alfred P. Ouellette, Senior Counsel and Assistant Secretary 601 Congress Street Boston, Massachusetts 02210 (Name and address of agent for service) Registrant's telephone number, including area code: 617-663-4324 Date of fiscal year end: May 31 Date of reporting period: August 31, 2008 ITEM 1. SCHEDULE OF INVESTMENTS John Hancock Strategic Income Fund Securities owned by the Fund on August 31, 2008 (Unaudited) Interest Maturity Credit Par value Issuer, description rate date rating (A) Value Bonds 70.77% (Cost $848,544,574) Agricultural Products 0.93% Cosan SA Industria e Comercio, Perpetual Bond (S) 8.250% 02/15/49 BB 5,750 4,945,000 Viterra, Inc., Sr Note (Canada) 8.000 04/08/13 BB+ 5,800 5,514,752 Airlines 0.62% Delta Air Lines, Inc., Sec Pass Thru Ctf Ser A (S) 6.821 08/10/22 A- 4,352 3,568,744 Northwest Airlines, Inc., Gtd Collateralized Note Ser 07-1 7.027 11/01/19 BBB+ 4,235 3,388,000 Aluminum 0.60% CII Carbon, LLC, Gtd Sr Sub Note (S) 11.125 11/15/15 CCC+ 6,890 6,786,650 Apparel Retail 0.22% Hanesbrands, Inc., Gtd Sr Note Ser B (P) 6.508 12/15/14 B 2,840 2,456,600 Auto Parts & Equipment 0.58% Allison Transmission, Inc., Gtd Sr Note (L) (S) 11.000 11/01/15 B- 5,000 4,600,000 Tenneco, Inc., Gtd Sr Sub Note 8.625 11/15/14 B 2,305 1,959,250 Automobile Manufacturers 1.31% DaimlerChrysler NA Holdings Corp., Gtd Sr Note Ser E MTN (European Union) 4.375 03/21/13 BBB 8,755 12,082,219 Volkswagon Finance Service AG, Note (European Union) 5.375 01/25/12 A- 1,840 2,711,870 Broadcasting & Cable TV 4.71% Allbritton Communications Co., Sr Sub Note 7.750 12/15/12 B+ 8,993 8,048,735 Charter Communicatons Holdings II, Gtd Sr Note (S) 10.250 10/01/13 Caa2 5,387 4,780,962 CSC Holdings, Inc., Sr Note (S) 8.500 06/15/15 BB 3,680 3,698,400 Shaw Communications, Inc., Sr Note (Canada) 6.100 11/16/12 BB+ 9,000 8,626,709 Sr Note (Canada) 5.700 03/02/17 BB+ 2,325 2,061,910 Sinclair Broadcast Group, Inc., Gtd Sr Sub Note 8.000 03/15/12 BB- 3,397 3,320,568 Sirius XM Radio, Inc., Sr Note 9.625 08/01/13 CCC 6,950 5,438,375 Time Warner Cable, Inc., Gtd Sr Note 6.750 07/01/18 BBB+ 3,770 3,806,147 XM Satellite Radio Holdings, Inc., Class A Sr Note (S) 13.000 08/01/13 CCC 13,010 11,481,325 Young Broadcasting, Inc., Gtd Sr Sub Note 10.000 03/01/11 CCC- 4,960 1,785,600 Page 1 John Hancock Strategic Income Fund Securities owned by the Fund on August 31, 2008 (Unaudited) Interest Maturity Credit Par value Issuer, description rate date rating (A) Value Casinos & Gaming 6.64% Fontainebleau Las Vegas, Note (S) 10.250 06/15/15 CCC 3,455 1,632,488 Sr Note (B) (G) 12.500 06/01/22 CCC+ 3,388 1,263,679 Great Canadian Gaming Corp., Gtd Sr Sub Note (S) 7.250 02/15/15 BB 1,250 1,178,125 Greektown Holdings LLC, Sr Note (H) (L) (S) 10.750 12/01/13 D 8,805 6,647,775 Indianapolis Downs LLC & Capital Corp., Sr Sec Note (S) 11.000 11/01/12 B 5,405 4,296,975 Isle of Capris Casinos, Inc., Gtd Sr Sub Note (L) 7.000 03/01/14 B- 2,550 1,823,250 Jacobs Entertainment, Inc., Gtd Sr Note 9.750 06/15/14 B 10,070 7,149,700 Little Traverse Bay Bands of Odawa Indians, Sr Note (S) 10.250 02/15/14 B- 5,000 4,162,500 Majestic Star Casino LLC, Gtd Sr Sec Note 9.500 10/15/10 B- 3,030 1,833,150 Mandalay Resort Group, Sr Sub Note 9.375 02/15/10 B+ 3,850 3,773,000 Mashantucket Western Pequot Tribe, Bond Ser A (S) 8.500 11/15/15 BB+ 4,565 3,332,450 Mohegan Tribal Gaming Authority, Gtd Sr Sub Note 8.000 04/01/12 B 2,450 2,082,500 Sr Sub Note 7.125 08/15/14 B 5,540 4,071,900 Sr Sub Note 6.375 07/15/09 B 5,080 4,914,900 MTR Gaming Group, Inc., Gtd Sr Note Ser B 9.750 04/01/10 B 8,165 7,940,462 Pinnacle Entertainment, Inc., Sr Sub Note (S) 7.500 06/15/15 B+ 1,800 1,395,000 Pokagon Gaming Authority, Sr Note (S) 10.375 06/15/14 B 2,329 2,427,983 Turning Stone Casino Resort Enterprise, Sr Note (S) 9.125 12/15/10 B+ 1,275 1,255,875 Sr Note (S) 9.125 09/15/14 B+ 9,620 9,259,250 Waterford Gaming, LLC, Sr Note (S) 8.625 09/15/14 BB- 4,702 4,384,615 Coal & Consumable Fuels 0.70% Drummond Co., Inc., Sr Note (S) 7.375 02/15/16 BB- 8,890 7,845,425 Commodity Chemicals 0.30% Braskem SA, Note (S) 11.750 01/22/14 BB+ 2,800 3,381,000 Construction & Farm Machinery & Heavy Trucks 0.38% Manitowoc Co., Inc., Gtd Sr Note 7.125 11/01/13 BB 4,600 4,301,000 Consumer Finance 0.62% Ford Motor Credit Co., LLC, Sr Note 9.750 09/15/10 B- 4,800 4,181,813 SLM Corp., Sr Note Ser MTN 8.450 06/15/18 BBB- 3,025 2,773,846 Page 2 John Hancock Strategic Income Fund Securities owned by the Fund on August 31, 2008 (Unaudited) Interest Maturity Credit Par value Issuer, description rate date rating (A) Value Diversified Banks 1.55% Banco Macro SA, Note 8.500 02/01/17 B2 2,265 1,766,700 European Investment Bank, Sr Note (New Zealand) 6.750 11/17/08 AAA 9,920 6,922,503 Sr Note (United Kingdom) 4.375 03/06/09 AAA 2,955 5,358,413 Landwirtschaftliche Rentenbank, Note (New Zealand) 6.500 09/17/09 AAA 4,960 3,432,946 Diversified Financial Services 5.32% Chukchansi Economic Development Authority, Sr Note (S) 8.000 11/15/13 B+ 2,540 2,089,150 CIT Group, Inc., Sr Note 5.000 02/13/14 A- 1,750 1,260,089 GE Captal Australia Funding Ltd., Gtd Sr Note (Australia) 6.500 11/15/11 AAA 7,900 6,481,663 General Electric Capital Corp., Sr Bond (New Zealand) 6.625 02/04/10 AAA 19,500 13,276,712 Independencia International Ltd., Gtd Sr Bond (S) 9.875 01/31/17 B 5,000 4,787,500 Inter-American Development Bank, Sr Note Ser INTL (New Zealand) 7.250 05/24/12 AAA 16,285 11,554,306 Sr Note Ser MPLE (Canada) 4.250 12/02/12 AAA 4,770 4,608,275 Odebrecht Finance Ltd., Gtd Sr Note (S) 7.500 10/18/17 BB 3,520 3,520,000 Orascom Telecom Finance SCA, Gtd Note (S) 7.875 02/08/14 B- 1,735 1,589,607 Snoqualmie Entertainment Authority, Sr Sec Note (S) 9.125 02/01/15 B 2,865 2,098,612 Sprint Capital Corp., Gtd Sr Note 8.375 03/15/12 BB 6,225 6,271,687 TAM Capital Inc. Gtd Sr Note 7.375 04/25/17 B+ 3,135 2,445,300 Electric Utilities 1.08% Appalachian Power Co., Sr Note 5.000 06/01/17 BBB 2,305 2,103,672 Cia de Transporte de Energia Electrica en Alta, Tension Transener SA, Sr Note (S) 8.875 12/15/16 B 4,685 3,115,525 Texas Competitive Electric Holdings Co. LLC, Gtd Sr Note Ser A (S) 10.250 11/01/15 CCC 7,000 6,982,500 Electrical Components & Equipment 0.20% Dominion Resources, Inc., Sr Note 5.600 11/15/16 A- 2,305 2,258,291 Environmental & Facilities Services 0.14% Blaze Recycling & Metals, Inc., Gtd Sr Sec Note (G) (S) 10.875 07/15/12 BB 1,605 1,625,063 Foreign Banks 0.91% International Finance Corp., Sr Note (Australia) 7.500 02/28/13 AAA 6,510 5,816,968 Page 3 John Hancock Strategic Income Fund Securities owned by the Fund on August 31, 2008 (Unaudited) Interest Maturity Credit Par value Issuer, description rate date rating (A) Value Foreign Banks (continued) Landwirtsch, Rentenbank, Note (New Zealand) 6.625 05/27/10 AAA 6,500 4,486,900 Foreign Government 18.86% Austria, Republic of, Note (New Zealand) 6.000 09/26/08 AAA 4,960 3,465,862 Bonos Y Oblig Del Estado, Bond (Spain) 6.150 01/31/13 AAA 13,725 21,614,801 Bond (Spain) 5.400 07/30/11 AAA 8,520 12,862,120 Canada Housing Trust, Note (Canada) 4.800 06/15/12 AAA 2,340 2,311,968 France, Government of, Bond (European Union) 4.750 10/25/12 AAA 10,700 15,998,355 Germany, Federal Republic of, Bond (European Union) 5.000 01/04/12 AAA 8,590 12,947,632 Bond (European Union) 4.250 07/04/18 AAA 10,630 15,676,614 Irealand, Government of, Sr Bond (European Union) 4.500 10/18/18 AAA 9,095 13,284,779 Mexico, Government of, Bond 11.375 09/15/16 BBB+ 3,800 5,244,000 New South Wales Treasury Corp., Bond (Austria) 7.000 12/01/10 AAA 58,830 51,234,865 Ontario, Province of, Bond (Canada) 4.400 03/08/16 AA 9,625 9,271,020 Deb (Canada) 4.500 03/08/15 AA 8,915 8,672,856 Note (New Zealand) 6.375 10/12/10 AA 4,930 3,396,744 Note (New Zealand) 6.250 06/16/15 AA 10,600 7,130,440 Quebec, Province of, Deb (Canada) 5.250 10/01/13 A+ 13,800 13,899,165 United Kingdom, Government of, Bond (United Kingdom) 5.000 03/07/12 AAA 4,015 7,453,062 Bond (United Kingdom) 5.000 03/07/18 AAA 4,240 8,036,902 Gas Utilities 0.24% Southern Union Co., Jr Sub Note Ser A 7.200 11/01/66 BB 3,355 2,709,119 Health Care Facilities 0.52% Community Health Systems, Inc., Gtd Sr Sub Note 8.875 07/15/15 B 1,220 1,232,200 Hanger Orthopedic Group, Inc., Gtd Sr Note 10.250 06/01/14 CCC+ 4,446 4,634,955 Health Care Supplies 0.12% Bausch & Lomb, Inc., Sr Note (European Union) (S) 9.875 11/01/15 B 1,295 1,330,613 Household Products 0.15% Yankee Acquisition Corp., Gtd Sr Sub Note 8.500 02/15/15 B- 2,270 1,747,900 Industrial Conglomerates 0.33% Grupo Kuo SAB de CV, Gtd Sr Note (L) (S) 9.750 10/17/17 BB- 3,675 3,675,000 Page 4 John Hancock Strategic Income Fund Securities owned by the Fund on August 31, 2008 (Unaudited) Interest Maturity Credit Par value Issuer, description rate date rating (A) Value Integrated Telecommunication Services 1.59% Axtel SAB de CV, Sr Note (S) 7.625 02/01/17 BB- 5,000 4,862,500 Cincinnati Bell, Inc., Sr Sub Note 8.375 01/15/14 B- 5,850 5,535,563 Citizens Communications Co., Sr Note (S) 7.125 03/15/19 BB 2,770 2,396,050 West Corp., Gtd Sr Sub Note 11.000 10/15/16 B- 6,580 5,148,850 Investment Banking & Brokerage 0.90% Institut Credito Oficial, Sr Note (United Kingdom) 5.000 12/07/09 AAA 4,430 8,032,877 Morgan Stanley Co., Sr Note 6.000 04/28/15 A+ 2,305 2,123,103 Leisure Facilities 0.51% AMC Entertainment, Inc., Sr Sub Note 8.000 03/01/14 CCC+ 6,390 5,766,975 Life & Health Insurance 0.19% Symetra Financial Corp., Jr Sub Bond (8.300% to 10-15-17 then variable) (S)8.300 10/15/37 BB 2,585 2,148,412 Metal & Glass Containers 1.01% BWAY Corp., Gtd Sr Sub Note 10.000 10/15/10 B- 5,775 5,746,125 OI European Group BV, Gtd Sr Note (European Union) (S) 6.875 03/31/17 BB 1,715 2,314,712 Owens-Brockway Glass Container, Inc., Gtd Sr Note 8.250 05/15/13 BB 3,200 3,296,000 Movies & Entertainment 0.25% Marquee Holdings, Inc., Sr Disc Note Ser B 12.000 08/15/14 CCC+ 3,595 2,858,025 Multi-Line Insurance 0.40% Liberty Mutual Group, Sr Note (10.75% to 6-15-38 then variable) (S) 10.750 06/15/58 BB+ 4,910 4,468,100 Oil & Gas Equipment & Services 0.27% Allis-Chalmers Energy, Inc., Sr Note 8.500 03/01/17 B+ 3,315 3,008,362 Oil & Gas Exploration & Production 0.34% McMoRan Exploration Co., Gtd Sr Note 11.875 11/15/14 B- 2,035 2,096,050 Targa Resources Partners LP, Sr Note 8.250 07/01/16 B 1,895 1,724,450 Oil & Gas Storage & Transportation 0.98% Markwest Energy Partners LP, Gtd Sr Note Ser B 8.500 07/15/16 B+ 7,135 7,135,000 Sr Note 8.750 04/15/18 B+ 1,395 1,388,025 Page 5 John Hancock Strategic Income Fund Securities owned by the Fund on August 31, 2008 (Unaudited) Interest Maturity Credit Par value Issuer, description rate date rating (A) Value Oil & Gas Storage & Transportation (continued) NGPL PipeCo LLC, Sr Note (S) 7.119 12/15/17 BBB- 2,510 2,534,186 Packaged Foods & Meats 0.65% Minerva Overseas Ltd., Gtd Note (S) 9.500 02/01/17 B 7,890 7,278,525 Paper Packaging 1.43% Graphic Packaging International, Inc., Gtd Sr Note 8.500 08/15/11 B- 2,100 2,068,500 Sr Sub Note 9.500 08/15/13 B- 5,550 5,217,000 Smurfit-Stone Container Corp., Sr Note 8.375 07/01/12 B- 7,990 7,011,225 Sr Note 8.000 03/15/17 B- 2,265 1,812,000 Paper Products 0.66% International Paper Co., Sr Note 7.950 06/15/18 BBB 2,990 3,037,957 New Page Corp., Sr Note (S) 10.000 05/01/12 B- 2,540 2,463,800 Pope & Talbot, Inc., Deb (G) (L) (X) 8.375 06/01/13 D 3,000 30,000 Sr Note (G) (L) (X) 8.375 06/01/13 D 5,250 52,500 Verso Paper Holdings LLC, Gtd Sr Note Ser B 9.125 08/01/14 B+ 1,995 1,875,300 Publishing 0.23% R.H. Donnelley Corp., Sr Note Ser A-3 8.875 01/15/16 B- 5,000 2,625,000 Real Estate Management & Development 0.05% OMEGA Healthcare Investors, Inc., REIT Gtd Sr Note 7.000 04/01/14 BB+ 600 574,500 Restaurants 0.74% Landry's Restaurants, Inc., Gtd Sr Note Ser B 9.500 12/15/14 CCC+ 8,380 8,296,200 Retail 0.18% Michaels Stores, Inc., Gtd Sr Note 10.000 11/01/14 CCC 2,705 2,028,750 Specialized Consumer Services 0.16% Independencia International Ltd., Gtd Sr Note (S) 9.875 05/15/15 B 1,775 1,749,881 Specialized Finance 1.11% CCM Merger, Inc., Note (S) 8.000 08/01/13 B- 10,835 8,722,175 HRP Myrtle Beach Operations, LLC, Note 7.383 04/01/12 B+ 4,915 3,833,700 Page 6 John Hancock Strategic Income Fund Securities owned by the Fund on August 31, 2008 (Unaudited) Interest Maturity Credit Par value Issuer, description rate date rating (A) Value Specialty Chemicals 0.32% American Pacific Corp., Gtd Sr Note 9.000 02/01/15 B+ 3,710 3,598,700 Steel 0.11% Steel Capital SA for OAO Severstal, Sec Note 9.750 07/29/13 BB 1,270 1,264,603 Systems Software 0.10% Vangent, Inc., Gtd Sr Sub Note 9.625 02/15/15 B- 1,285 1,092,250 Thrifts & Mortgage Finance 8.61% American Home Mortgage Assets, CMO-REMIC Ser 2006-6 Class XP IO Zero 12/25/46 BBB 65,832 2,633,284 American Home Mortgage Investment Trust, Mtg Pass Thru Ser 2007-1 Class GIOP IO 2.078 05/25/47 AAA 36,633 2,037,686 Banc of America Commercial Mortgage, Inc., CMO-REMIC Ser 2006-5 Class A4 5.414 09/10/47 AAA 11,640 10,658,401 Citigroup/Deutsche Bank Commercial Mortgage Trust, CMO-REMIC Ser 2005-CD1 Class A4 5.400 07/15/44 AAA 10,270 9,773,534 Countrywide Alternative Loan Trust, CMO-REMIC Ser 2005-59 Class 2X IO (P) 3.188 11/20/35 AAA 39,265 1,349,719 CMO-REMIC Ser 2006-0A8 Class X IO (P) 4.079 07/25/46 AAA 50,710 1,719,160 CMO-REMIC Ser 2006-0A10 Class XPP IO (P) 1.800 08/25/46 AAA 26,572 979,845 Crown Castle Towers LLC, CMO-REMIC Ser 2006-1A Class G (S) 6.795 11/15/36 Ba2 3,835 3,320,327 CMO-REMIC Ser 2006-1A- F 6.650 11/15/36 Ba1 3,210 2,861,993 DB Master Finance LLC, CMO-REMIC Ser 2006-1-M1 (S) 8.285 06/20/31 BB 500 381,565 Dominos Pizza Master Issuer LLC, CMO-REMIC Ser 2007-1-M1 (S) 7.629 04/25/37 BB 5,660 3,537,500 Global Tower Partners Acquisition Partners, LLC, CMO-REMIC Sub Bond Ser 2007-1A-G (S) 7.874 05/15/37 B2 1,840 1,648,741 Greenpoint Mortgage Funding Trust, CMO-REMIC Ser 2005-AR4 Class 4A2 (P) 2.832 10/25/45 AAA 6,356 2,824,540 CMO-REMIC Ser 2006-AR1 Class A2A (P) 2.842 02/25/36 AAA 3,666 1,751,495 Greenwich Capital Commercial Funding Corp., CMO-REMIC Ser 2006-GG7 Class A4 6.112 07/10/38 AAA 9,865 9,380,861 HarborView Mortgage Loan Trust, CMO-REMIC Ser 2005-8 Class 1X IO (P) 3.069 09/19/35 AAA 35,545 788,652 CMO-REMIC Ser 2006-SB1 Class A1A (P) 3.929 12/19/36 AAA 6,124 3,539,508 CMO-REMIC Ser 2007-3 Class ES (G) (S) Zero 05/19/47 BB 94,303 589,395 CMO-REMIC Ser 2007-4 Class ES (G) Zero 07/19/47 BB 95,036 623,675 CMO-REMIC Ser 2007-6 Class ES Zero 08/19/37 A- 66,138 413,363 HarborView NIM Corp., CMO-REMIC Ser 2007-3A-N1 (G) (S) 6.654 05/19/37 41 39,689 Indymac Index Mortgage Loan Trust, CMO-REMIC Ser 2005-AR18 Class 1X IO Zero 10/25/36 AAA 86,091 1,937,048 CMO-REMIC Ser 2005-AR18 Class 2X IO Zero 10/25/36 AAA 99,453 1,432,119 Lehman XS Trust, CMO-REMIC Ser 2005-5N Class 3A2 (P) 2.832 11/25/35 AAA 1,536 667,679 CMO-REMIC Ser 2006-2N Class 1A2 (P) 2.812 02/25/46 AAA 6,139 2,518,842 Luminent Mortgage Trust, Mtg Pass Thru Ctf Ser 2006-1 Class X IO (P) 2.872 04/25/36 AAA 26,015 747,918 Page 7 John Hancock Strategic Income Fund Securities owned by the Fund on August 31, 2008 (Unaudited) Interest Maturity Credit Par value Issuer, description rate date rating (A) Value Thrifts & Mortgage Finance (continued) Suntrust Adjustable Rate Mortgage Loan Trust, CMO-REMIC Ser 2007-2-4A1 5.738 04/25/37 AAA 10,196 8,817,350 WAMU Mortgage Pass-Through Certificates, CMO-REMIC Ser 2005-AR13 Class B1 (P) 3.072 10/25/45 AA+ 5,204 2,591,356 CMO-REMIC Ser 2005-AR6 Class B1 (P) 3.072 04/25/45 AA+ 8,258 4,128,874 CMO-REMIC Ser 2007-0A4 Class XPPP IO Zero 04/25/47 Aaa 95,884 1,198,550 CMO-REMIC Ser 2007-0A5 Class 1XPP IO Zero 06/25/47 Aaa 219,694 2,540,215 CMO-REMIC Ser 2007-0A6 Class 1XPP IO Zero 07/25/47 Aaa 127,878 1,438,627 Wells Fargo Mortgage-Backed Securities Trust, CMO-REMIC Ser 2006-AR12-1-A1 6.025 09/25/36 Aaa 9,849 8,162,970 Tobacco 0.60% Alliance One International, Inc., Gtd Sr Note 11.000 05/15/12 B+ 6,670 6,786,725 Wireless Telecommunication Services 2.34% Centennial Communications Corp., Sr Note 10.000 01/01/13 CCC+ 6,955 7,233,200 Digicel Group Ltd., Sr Note (S) 8.875 01/15/15 Caa1 5,000 4,694,000 Grupo Iusacell SA de CV, Sr Sec Note (Mexico) (G) (S) 10.000 12/31/13 CCC 2,160 1,814,371 Rogers Cable, Inc., Sr Sec Note (Canada) 7.250 12/15/11 BBB- 6,750 6,732,836 Rural Cellular Corp., Sr Sub Note (G) (P) 8.551 11/01/12 A 3,405 3,473,100 Sr Sub Note (G) (P) 5.619 06/01/13 A- 2,430 2,478,600 Issuer Shares Value Common stocks 0.96% (Cost $14,934,768) Broadcasting & Cable TV 0.44% Sirius XM Radio, Inc. (I) 3,725,443 4,954,839 Casinos & Gaming 0.02% Fontainebleau Las Vegas (B) (I) 67,568 222,974 Communications Equipment 0.01% COLT Telecom Group SA 31,242 73,382 Integrated Telecommunication Services 0.14% Chunghwa Telecom Co. Ltd., ADR 29,195 722,284 Deutsche Telekom AG (I) 8,253 135,927 Manitoba Telecom Services, Inc. (I) 910 35,739 Versatel Telecom International NV (B) (I) 590,005 683,798 Metal & Glass Containers 0.06% Pactiv Corp. (I) 27,426 736,937 Paper Products 0.27% Smurfit-Stone Container Corp. (I) 597,299 3,016,360 Wireless Telecommunication Services 0.02% USA Mobility, Inc. (I) 25,267 284,759 Page 8 John Hancock Strategic Income Fund Securities owned by the Fund on August 31, 2008 (Unaudited) Credit Par value Issuer, description, maturity date rating (A) Value Tranche Loans 1.68% (Cost $19,034,037) Airlines 0.68% Delta Air Lines, Inc., Tranche DAL (Fac LN410318), 04-30-14 B- 6,990 5,068,097 US Airways Group, Inc., Tranche LCC, 03-23-14 B+ B+ 2,700 1,849,500 Tranche LCC, 03-23-14 B+ 1,050 719,250 Casinos & Gaming 0.42% Great Canadian Gaming Corp., Tranche B (Fac LN318112), 02-14-14 B+ 4,876 4,692,910 Health Care Supplies 0.23% Bausch & Lomb, Inc., Tranche EU BOL(Fac LN3362716), 04-26-15 BB+ 1,134 1,605,832 IM US Holdings LLC, Tranche (Second Lien Fac),06-26-15 B+ 1,095 1,019,062 Paper Products 0.35% Abitibi-Consolidated Co. of Canada, Tranche B (Fac LN385806), 03-30-09 B+ 2,000 3,980,000 Interest Maturity Credit Par value Issuer, description rate date rating (A) Value U.S. Government & agency securities 18.32% (Cost $198,700,918) U.S. Government 4.13% United States Treasury, Bond (L) 9.250% 02/15/16 AAA 8,600 11,816,263 Bond (L) 8.125 08/15/19 AAA 5,225 7,072,121 Note (L) 4.875 08/15/16 AAA 8,795 9,570,745 Note (L) 4.750 05/15/14 AAA 6,000 6,508,128 Note (L) 4.250 11/15/13 AAA 11,015 11,622,543 U.S. Government Agency 14.19% Federal Home Loan Mortgage Corp., CMO REMIC 3154-PM 5.500 05/15/34 AAA 13,002 12,807,109 CMO REMIC 3228-PL (G) 5.500 10/15/34 AAA 25,320 24,721,514 Federal National Mortgage Assn., 15 Yr Pass Thru Ctf 5.000 07/01/23 AAA 8,118 8,050,980 30 Yr Pass Thru Ctf 6.000 11/01/36 AAA 5,515 5,578,580 30 Yr Pass Thru Ctf 6.000 01/01/37 AAA 14,861 15,032,922 30 Yr Pass Thru Ctf 6.000 09/01/37 AAA 5,577 5,636,329 30 Yr Pass Thru Ctf 5.500 02/01/37 AAA 8,869 8,771,513 30 Yr Pass Thru Ctf 5.500 06/01/37 AAA 5,708 5,643,744 30 Yr Pass Thru Ctf 5.500 07/01/37 AAA 5,512 5,449,866 30 Yr Pass Thru Ctf 5.500 09/01/37 AAA 17,820 17,617,945 30 Yr Pass Thru Ctf 5.000 12/01/22 AAA 16,069 15,936,310 CMO-REMIC Ser 2006-117-PD 5.500 07/25/35 AAA 16,925 16,356,022 CMO-REMIC Ser 2006-65 TE 5.500 05/25/35 AAA 6,470 6,366,473 CMO-REMIC Ser 2006-84-MP 5.500 08/25/35 AAA 7,905 7,785,681 SBA CMBS Trust, Sub Bond Ser 2006-1A Class H (S) 7.389 11/15/36 Ba3 2,370 2,269,830 Sub Bond Ser 2006-1A Class J (S) 7.825 11/15/36 B1 2,015 1,844,434 Page 9 John Hancock Strategic Income Fund Securities owned by the Fund on August 31, 2008 (Unaudited) Issuer Shares Value Warrants 0.00% (Cost $28,043) Broadcasting & Cable TV 0.00% Virgin Media, Inc. (I) 28,043 1,994 Excercise Expiration Number of Issuer price date contracts Value Purchased options 0.59% (Cost $10,686,642) Options - Puts & Calls 0.59% Comcast (Call) $25.00 01/18/10 7,000 1,400,000 Currency CAD (Call) 1.30 01/22/10 27,607,000 132,290 Currency CAD (Call) 1.30 01/22/10 27,607,000 132,290 Currency CAD (Call) 1.30 02/25/10 137,000,000 724,250 Currency CAD (Put) 1.30 04/01/10 27,890,000 162,722 Currency CAD (Put) 1.30 04/05/10 55,500,000 325,725 Currency EUR (Call) 1.20 02/26/09 5,520,000 178,287 Currency EUR (Put) 1.44 12/30/08 115,632,000 1,972,128 Currency JAP (Call) 100.00 12/26/08 54,000,000 355,414 US Treasury Curve (Call) 0.97 01/06/10 500,000,000 681,680 US Treasury Curve (Call) 1.01 01/12/10 500,000,000 572,075 Par value Issuer, description Value Short-term investments 9.80% (Cost $110,398,506) Joint Repurchase Agreement 3.93% Joint Repurchase Agreement with Barclays Bank PLC dated 08-29-08 at 2.02% to be repurchased at $44,257,931 on 9-2-08, collateralized by $38,693,204 U.S. Treasury Inflation Index Note, 2.50%, due 7-15-16 (valued at $45,132,960, including interest). $44,248 44,248,000 Interest Issuer rate Shares Value Cash Equivalents 5.87% John Hancock Cash Investment Trust (T) (W) 2.7293(Y) 66,151 66,150,506 Total investments (Cost $1,202,327,488) 102.12% Other assets and liabilities, net (2.12%) Total net assets 100.00% The percentage shown for each investment category is the total value of that category as a percentage of the net assets applicable to common shareholders. ADR American Depositary Receipt IO Interest only (carries notional principal amount) MTN Medium-Term Note NIM Net Interest Margin REIT Real Estate Investment Trust Page 10 John Hancock Strategic Income Fund Securities owned by the Fund on August 31, 2008 (Unaudited) SBA Small Business Administration (A) Credit ratings are unaudited and are rated by Moodys Investors Service where Standard & Poors ratings are not available unless indicated otherwise. (B) Security is fair valued in good faith under procedures established by the Board of Trustees. These securities amounted $2,170,451 or 0.19% of the Fund's net assets as of August 31, 2008. (G) Security rated internally by John Hancock Advisers, LLC. (H) Non-income-producing issuer filed for protection under the Federal Bankruptcy Code or is in default of interest payment. (I) Non-income producing security. (L) All or a portion of this security is on loan as of August 31, 2008. (P) Variable rate obligation. The coupon rate shown represents the rate at period end. (S) These securities are exempt from registration under Rule 144A of the Securities Act of 1933. Such securities may be resold, normally to qualified institutional buyers, in transactions exempt from registration. Rule 144A securities amounted to $180,952,305 or 16.06% of the net assets of the Fund as of August 31, 2008. (T) Represents investment of securities lending collateral. (W) Issuer is an affiliate of John Hancock Advisers, LLC. (X) Non-income-producing, issuers are in bankruptcy and are in default of interest payments. The aggregrate value of these bonds is $82,500 or 0.01% of the Fund's net assets as of August 31, 2008 (Y) Represents current yield on August 31, 2008 At August 31, 2008, the aggregate cost of investment securities for federal income tax purposes was $1,136,231,556. Net unrealized depreciation aggregated $51,566,922, of which $27,706,010 related to appreciated investment securities and $79,272,932 related to depreciated investment securities. The Fund had the following futures contracts open on August 31, 2008: UNREALIZED OPEN CONTRACTS NUMBER OF CONTRACTS POSITION EXPIRATION DEPRECIATION U.S. 10-year Treasury Note 428 Short Dec-08 ($315,145) Written options for the period ended August 31, 2008 were as follows: NUMBER OF PREMIUMS CONTRACTS RECEIVED Outstanding, beginning of period - - Options written 64,770,000 $246,389 Options closed - - Options exercised - - Options expired (32,600,000) (126,482) Outstanding, end of period Summary of written options outstanding on August 31, 2008: NUMBER OF EXPIRATION NAME OF ISSUER CONTRACTS EXERCISE PRICE DATE VALUE Calls Australian Dollar (32,170,000) $0.95 Sep 2008 ($7,328) Page 11 John Hancock Strategic Income Fund Securities owned by the Fund on August 31, 2008 (Unaudited) Open forward foreign currency contracts as of August 31, 2008: PRINCIPAL AMOUNT UNREALIZED COVERED BY APPRECIATION CURRENCY CONTRACT SETTLEMENT DATE (DEPRECIATION) Buys Australian Dollar $64,340,000 Sep 2008 ($5,966,229) Canadian Dollar 57,026,733 Sep 2008 (1,449,266) Sells Australian Dollar ($73,090,000) Sep 2008 $6,407,167 Canadian Dollar (182,434,260) Sep 2008 7,091,596 Euro (74,528,000) Sep 2008 6,065,044 Pound Sterling (16,512,695) Sep 2008 1,746,934 New Zealand Dollar (75,700,000) Sep 2008 3,907,893 Total Page 12 Notes to portfolio of investments Security valuation The net asset value of common shares of the Fund is determined daily as of the close of the New York Stock Exchange (NYSE), normally at 4:00 P.M., Eastern Time. Short-term debt investments that have a remaining maturity of 60 days or less are valued at amortized cost, and thereafter assume a constant amortization to maturity of any discount or premium, which approximates market value. Investments in John Hancock Cash Investment Trust (JHCIT), an affiliate of John Hancock Advisers, LLC (the Adviser), a wholly owned subsidiary of John Hancock Financial Services, Inc., a subsidiary of Manulife Financial Corporation, are valued at their net asset value each business day. All other securities held by the Fund are valued at the last sale price or official closing price (closing bid price or last evaluated quote if no sale has occurred) as of the close of business on the principal securities exchange (domestic or foreign) on which they trade or, lacking any sales, at the closing bid price. Securities traded only in the over-the-counter market are valued at the last bid price quoted by brokers making markets in the securities at the close of trading. Securities for which there are no such quotations, principally debt securities, are valued based on the evaluated prices provided by an independent pricing service, which utilizes both dealer-supplied and electronic data processing techniques, which take into account factors such as institutional-size trading in similar groups of securities, yield, quality, coupon rate, maturity, type of issue, trading characteristics and other market data. Other assets and securities for which no such quotations are readily available are valued at fair value as determined in good faith under consistently applied procedures established by and under the general supervision of the Board of Trustees. Generally, trading in non-U.S. securities is substantially completed each day at various times prior to the close of trading on the NYSE. The values of such securities used in computing the net asset value of the Funds shares are generally determined as of such times. Occasionally, significant events that affect the values of such securities may occur between the times at which such values are generally determined and the close of the NYSE. Upon such an occurrence, these securities will be valued at fair value as determined in good faith under consistently applied procedures established by and under the general supervision of the Board of Trustees. In deciding whether to make a fair value adjustment to the price of a security, the Board of Trustees or their designee may review a variety of factors, including developments in foreign markets, the performance of U.S. securities markets and the performance of instruments trading in U.S. markets that represent foreign securities and baskets of foreign securities. The Fund may also fair value securities in other situations, for example, when a particular foreign market is closed, but the Fund is calculating the net asset value. In view of these factors, it is likely that a Fund investing significant amounts of assets in securities in foreign markets will be fair valued more frequently than a Fund investing significant amounts of assets in frequently traded, U.S. exchange listed securities of large-capitalization U.S. issuers. For purposes of determining when fair value adjustments may be appropriate with respect to investments in securities in foreign markets that close prior to the NYSE, the Fund will, on an ongoing basis, monitor for significant market events. A significant market event may be a certain percentage change in the value of an index or of certain Exchange Traded Funds that track foreign markets in which the Fund has significant investments. If a significant market event occurs due to a change in the value of the index or of Exchange Traded Funds, the pricing for investments in foreign markets that have closed prior to the NYSE will promptly be reviewed and potential adjustments to the net asset value will be recommended to the Funds Pricing Committee where applicable. The Fund adopted Statement of Financial Accounting Standards No. 157 (FAS 157), Fair Value Measurements , effective with the beginning of the Funds fiscal year. FAS 157 established a three-tier hierarchy to prioritize the assumptions, referred to as inputs, used in valuation techniques to measure fair value. The three-tier hierarchy of inputs is summarized in the three broad levels listed below: Level 1 Quoted prices in active markets for identical securities. Level 2 Prices determined using other significant observable inputs. Observable inputs are inputs that other market participants would use in pricing a security. These may include quoted prices for similar securities, interest rates, prepayment speeds, credit risk and others. Level 3 Prices determined using significant unobservable inputs. In situations where quoted prices or observable inputs are unavailable, such as when there is little or no market activity for an investment, unobservable inputs may be used. Unobservable inputs reflect the Funds own assumptions about the factors that market participants would use in pricing an investment and would be based on the best information available. The inputs or methodology used for valuing securities are not necessarily an indication of the risk associated with investing in those securities. The following is a summary of the inputs used to value the Funds net assets as of August 31, 2008: Investments in Other Financial Valuation Inputs Securities Instruments* Level 1 Quoted Prices $11,288,838 - Level 2 Other Significant Observable Inputs 1,113,462,732 $17,600,573 Level 3 Significant Unobservable Inputs 26,063,568 - Total $1,150,815,138 $17,600,573 * Other financial instruments are derivative instruments not reflected in the Portfolio of Investments, such as futures, forwards and swap contracts, which are valued at the unrealized appreciation/depreciation on the instrument. The following is a reconciliation of Level 3 assets for which significant unobservable inputs were used to determine fair value: Investments Other Financial in Securities Instruments Balance as of May 31, 2008 $30,536,931 $- Accrued discounts/premiums 130,144 - Realized gain (loss) (965,593) - Change in unrealized appreciation (526,836) - (depreciation) Net purchases (sales) (3,836,216) - Transfers in and/or out of Level 3 725,138 - Balance as of August 31, 2008 $26,063,568 $- Investment risk The Fund may invest a portion of its assets in issuers and/or securities of issuers that hold mortgage securities, including subprime mortgage securities. The value of these securities is sensitive to changes in economic conditions, including delinquencies and/or defaults, and may be adversely affected by shifts in the markets perception of the issuers and changes in interest rates. Joint repurchase agreement Pursuant to an exemptive order issued by the Securities and Exchange Commission (SEC), the Fund, along with other registered investment companies having a management contract with John Hancock Advisers, LLC (the Adviser), a wholly owned subsidiary of John Hancock Financial Services, Inc., a subsidiary of Manulife Financial Corporation (MFC), may participate in a joint repurchase agreement transaction. Aggregate cash balances are invested in one or more large repurchase agreements, whose underlying securities are obligations of the U.S. government and/or its agencies. The Funds custodian bank receives delivery of the underlying securities for the joint account on the Funds behalf. When a Fund enters into a repurchase agreement, it receives delivery of collateral, the amount of which at the time of purchase and each subsequent business day is required to be maintained at such a level that the value is generally 102% of the repurchase amount. Interest-rate risk Fixed-income securities are affected by changes in interest rates. When interest rates decline, the market value of the fixed-income securities generally can be expected to rise. Conversely, when interest rates rise, the market value of fixed-income securities generally can be expected to decline. The longer the duration or maturity of a fixed-income security, the more susceptible it is to interest rate risk. Securities lending The Fund may lend portfolio securities from time to time in order to earn additional income. The Fund retains beneficial ownership of the securities it has loaned and continues to receive interest and dividends paid by the issuer of securities and to participate in any changes in their value. On the settlement date of the loan, the Fund receives cash collateral against the loaned securities and maintains the cash collateral in an amount not less than 100% of the market value of the loaned securities during the period of the loan. The market value of the loaned securities is determined at the close of business of the Fund and any additional required cash collateral is delivered to the Fund on the next business day. Cash collateral received is invested in the JHCIT. If the borrower defaults on its obligation to return the securities loaned because of insolvency or other reasons, a fund could experience delays and costs in recovering the securities loaned or in gaining access to the collateral. The Fund may receive compensation for lending their securities either in the form of fees, guarantees, and/or by retaining a portion of interest on the investment of any cash received as collateral. The Fund has entered into an agreement with Morgan Stanley & Co., Inc. and MS Securities Services, Inc. (collectively, Morgan Stanley) which permits the Fund to lend securities to Morgan Stanley on a principal basis. Morgan Stanley is the primary borrower of securities of the Fund. The risk of having one primary borrower of Fund securities (as opposed to several borrowers) is that should Morgan Stanley fail financially, all securities lent will be affected by the failure and by any delays in recovery of the securities. Futures The Fund may purchase and sell financial futures contracts and options on those contracts. The Fund invests in contracts based on financial instruments such as U.S. Treasury Bonds or Notes or on securities indices such as the Standard & Poors 500 Index, in order to hedge against a decline in the value of securities owned by the Fund. Initial margin deposits required upon entering into futures contracts are satisfied by the delivery of specific securities or cash as collateral to the broker (the Funds agent in acquiring the futures position).
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Name: Commission Regulation (EC) No 1997/2002 of 8 November 2002 amending Regulation (EC) No 296/96 on data to be transmitted by the Member States and the monthly booking of expenditure financed under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF)
Type: Regulation
Subject Matter: public finance and budget policy; financial institutions and credit; information and information processing; NA; EU finance
Date Published: nan
Avis juridique important|32002R1997Commission Regulation (EC) No 1997/2002 of 8 November 2002 amending Regulation (EC) No 296/96 on data to be transmitted by the Member States and the monthly booking of expenditure financed under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) Official Journal L 308 , 09/11/2002 P. 0009 - 0009Commission Regulation (EC) No 1997/2002of 8 November 2002amending Regulation (EC) No 296/96 on data to be transmitted by the Member States and the monthly booking of expenditure financed under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF)THE COMMISSION OF THE EUROPEAN COMMUNITIES,Having regard to the Treaty establishing the European Community,Having regard to Council Regulation (EC) No 1258/1999 of 17 May 1999 on the financing of the common agricultural policy(1), and in particular Articles 5(3) and 7(5) thereof,Whereas:(1) Article 16(1) of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities(2) provides that the budget shall be drawn up and implemented in euro and the accounts shall be presented in euro.(2) Commission Regulation (EC) No 296/96(3), as last amended by Regulation (EC) No 1934/2001(4), should be amended so as to bring it in line with this new provision.(3) The measures provided for in this Regulation are in accordance with the opinion of the Committee for the European Agricultural Guidance and Guarantee Fund,HAS ADOPTED THIS REGULATION:Article 1Article 4(1a) of Regulation (EC) No 296/96 is hereby deleted.Article 2This Regulation shall enter into force on 1 January 2003.This Regulation shall be binding in its entirety and directly applicable in all Member States.Done at Brussels, 8 November 2002.For the CommissionFranz FischlerMember of the Commission(1) OJ L 160, 26.6.1999, p. 103.(2) OJ L 248, 16.9.2002, p. 1.(3) OJ L 39, 17.2.1996, p. 5.(4) OJ L 262, 2.10.2001, p. 8. |
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):July 23, 2007 MAXIMUS,INC. (Exact name of registrant as specified in its charter) Virginia (State or other jurisdiction of incorporation) 1-12997 (Commission File Number) 54-1000588 (I.R.S. Employer Identification No.) 11419 Sunset Hills Road, Reston, Virginia (Address of principal executive offices) 20190-5207 (Zip Code) Registrant’s telephone number, including area code:(703)251-8500 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: oWritten communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) oSoliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) oPre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) oPre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) Item 8.01
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Exhibit 10.6
[Letterhead of WAVI Holding AG]
May 12, 2016
VIA EMAIL AND AIR MAIL
Attention: Roderick de Greef
Bothell, Washington 98021
Re:Commitment to provide US$4,000,000 credit financing.
Dear Rod:
WAVI Holding AG, a corporation organized under the laws of Switzerland (the
“Lender”), agrees to lend to BioLife Solutions, Inc., a Delaware corporation
(the “Borrower”), the sum of US$4,000,000 in a series of advances, as follows:
Amount to be Advanced (US$) Date of Advance US$1,000,000 June 1, 2016
US$1,000,000 September 1, 2016 US$1,000,000 December 1, 2016 US$1,000,000
March 1, 2017
The obligations of the Borrower with respect to the advances described in the
preceding paragraph shall be evidenced by a promissory note of the Borrower (the
“Note”) substantially in the form of Exhibit A attached to this letter.
In partial consideration for the Lender entering into this letter and agreeing
to make the advances, the Borrower will issue to the Lender, as of the date
hereof, a five year warrant (the “Warrant”) to purchase up to 550,000 shares of
common stock of the Borrower (“Shares”, and together with the Note and the
Warrants, the “Securities”) with an exercise price of $1.75 per Share,
substantially in the form of Exhibit B attached to this letter.
Lender represents, warrants and covenants to and with the Borrower as follows:
(a) No Registration. The Lender understands that the Securities, and any
securities underlying the Securities, will be “restricted securities” and have
(the “Securities Act”) or any applicable state securities law and may not be
offered or sold in the United States or to U.S. Persons unless the securities
are registered under the Securities Act or an exemption from the registration
requirements of the Securities Act are available. “United States” and “U.S.
Person” are as defined in Regulation S under the Securities Act.
[Signature Page to BioLife Commitment Letter]
(b) Own Account. The Lender is acquiring the Securities as principal for its own
representation and warranty not limiting the Lender’s right to sell Securities
pursuant to any registration statement or otherwise in compliance with
or any applicable state securities law. The Lender is acquiring the Securities
(c) Accredited Investor. The Lender is, and on the date of each advance will be
an “accredited investor”, as defined in Rule 501(a) of Regulation D under the
Securities Act.
(d) Non-U.S. Lender. At the time the Lender was offered the Securities and at
the time of the execution and delivery of this Agreement, it was not, and as of
the date hereof it is not, and on the date of each advance it will not be, a
U.S. Person or in the United States, nor will it be acquiring the Securities for
the account or benefit of a U.S. Person or a person in the United States.
(e) Restrictions of Resale. The Lender agrees to offer, sell or otherwise
transfer the Securities, and any underlying securities, only in accordance with
the provisions of Regulation S under the Securities Act, pursuant to
from registration under the Securities Act. In addition, the Lender agrees not
to engage in hedging transactions with regard to such securities unless in
(f) Legend. The Lender understands and acknowledges that upon the original
issuance of Securities, and until no longer required under the U.S. Securities
Act or applicable state securities laws, the certificates representing the
Securities and any securities underlying the Securities will bear a legend in
THE SECURITIES REPRESENTED HEREBY AND THE SECURITIES ISSUABLE UPON CONVERSION
SECURITIES ACT OF 1933, AS AMENDED (THE “U.S. SECURITIES ACT”). SUCH SECURITIES
REQUIREMENTS UNDER THE U.S. SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE
STATE SECURITIES LAWS, (C) IN COMPLIANCE WITH THE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS UNDER THE U.S. SECURITIES ACT IN ACCORDANCE WITH RULE
144 THEREUNDER, IF APPLICABLE, AND IN ACCORDANCE WITH APPLICABLE STATE
SALE, FURNISHED TO THE COMPANY AN OPINION OF COUNSEL OF RECOGNIZED STANDING, OR
OTHER EVIDENCE OF EXEMPTION, REASONABLY SATISFACTORY TO THE COMPANY. HEDGING
TRANSACTIONS INVOLVING SUCH SECURITIES REPRESENTED HEREBY MAY NOT BE CONDUCTED
UNLESS IN COMPLIANCE WITH THE U.S. SECURITIES ACT.
(g) Restrictions on Conversion Warrant Exercises. The Lender understands the
restrictions on exercise set forth in the Warrant.
(h) Experience of the Lender. The Lender, either alone or together with its
the acquisition of the Securities, and has so evaluated the merits and risks of
such investment. The Lender is able to bear the economic risk of an investment
such investment.
The Borrower will not register any transfer of Securities unless made in
accordance with paragraph (e) above.
If the Borrower is in agreement with the terms of this letter, please
countersign this letter in the space for the Borrower provided below and return
a copy via email to the Lender and deliver the executed original to the Lender
at its address provided above.
Very truly yours, WAVI HOLDING AG By: /s/ Walter Villiger
Name: Walter Villiger Title: Chairman
12th day of May, 2016.
BIOLIFE SOLUTIONS, INC. By: /s/ Roderick de Greef Name: Title:
EXHIBIT A
FORM OF PROMISSORY NOTE
ACT”). SUCH SECURITIES MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
STANDING, OR OTHER EVIDENCE OF EXEMPTION, REASONABLY SATISFACTORY TO THE
COMPANY. HEDGING TRANSACTIONS INVOLVING SUCH SECURITIES REPRESENTED HEREBY MAY
PROMISSORY NOTE
US$4,000,000 May 12, 2016
FOR VALUE RECEIVED, the undersigned, BioLife Solutions, Inc., a Delaware
corporation (“Borrower”) promises to pay to the order of WAVI Holding AG, a
corporation organized under the laws of Switzerland (the “Lender”) at its office
at Paradiesstrasse 25, CH-6845, Jona, Switzerland, in lawful money of the United
States, or at such other address as the holder hereof may from time to time
designate in writing, the principal amount of all loans made by the Lender to
the Borrower under the terms of this Note (each an “Advance” and collectively
the “Advances”). The aggregate principal amount of all Advances outstanding
hereunder shall not exceed FOUR MILLION AND 00/100 UNITED STATES DOLLARS
(US$4,000,000), and no Advance shall be made after June 1, 2017 (the “Maturity
Date”).
This Note matures on the Maturity Date, and the outstanding principal amount of
this Note shall be repaid in full on the Maturity Date.
Interest on the unpaid principal balance of this Note shall accrue from the date
hereof at a per annum rate equal to ten percent (10%) calculated on the basis of
a year consisting of twelve months of thirty days each. No provision of this
the rate permitted by applicable law.
Accrued interest at the rates referred to above shall be payable on the Maturity
Date, when all unpaid accrued interest shall be due and payable in full.
Principal, interest and fees owed under this Note are payable in lawful money of
the United States of America in immediately available funds.
All payments under this Note shall be applied initially against accrued interest
and thereafter in reduction of principal. The principal amount hereof, together
with accrued, unpaid interest hereon, may be prepaid at any time and from time
Any officer of the Borrower who has been disclosed to the Lender in writing as
an authorized officer for such purposes (an “Authorized Person”) may request an
Advance on any day other than a Saturday, Sunday or other day when commercial
banks located in the State of Washington are not open for commercial banking
business (each such day, a “Business Day”). Such request shall be made in
writing delivered to the Lender by not later than 9:00 a.m. on the day two
Business Days prior to the requested Advance.
The Borrower hereby authorizes the Lender to rely upon the written instructions
of any person identifying himself or herself as an Authorized Person and upon
any signature which the Lender believes to be genuine, and the Borrower shall be
bound thereby in the same manner as if such person were authorized or such
signature were genuine.
It is expressly understood that the Lender is under no obligation to make any
Advance to the Borrower under this Note (whether by reason of any provision
hereof or otherwise) (i) if an Event of Default, as hereinafter defined, has
occurred and is continuing, or (ii) if such Advance or any part thereof would
cause the aggregate amount of all Advances made hereunder to exceed $4,000,000.
The Borrower covenants and agrees that any and all payments under this shall be
made without deduction or withholding for any taxes other than income or
franchise taxes imposed on the Lender in any jurisdiction (“Subject Taxes”),
deduction or withholding of any Subject Tax from any such payment, then the
Borrower shall be entitled to make such deduction or withholding. If the
Borrower is entitled to an exemption from or reduction of any Subject Tax with
respect to payments made under this Note, the Lender agrees, by its acceptance
of this Note, that it shall deliver to the Borrower, at the time or times
to be made without withholding or at a reduced rate of withholding and such
Borrower as will enable the Borrower to determine whether or not the Lender is
limiting the generality of the foregoing, the Lender further agrees, by its
acceptance of this Note, that it shall, to the extent it is legally entitled to
do so, deliver to the Borrower on or prior to the date which is 10 days after
the date of this Note (and from time to time thereafter upon the reasonable
2
(1) if the Lender is claiming the benefits of an income tax treaty to which the
applicable payments under this Note, IRS Form W-8BEN or IRS Form W-8BEN-E
(3) if the Lender is claiming the benefits of the exemption for portfolio
the effect that the Lender is not a “bank” within the meaning of Section
the Internal Revenue Code and (y) executed originals of IRS Form W-8BEN or IRS
(4) to the extent the Lender is not the beneficial owner, executed originals of
The Lender further agrees, by its acceptance of this Note, that it shall, to the
extent it is legally entitled to do so, deliver to the Borrower on or prior to
the date which is 10 days after the date of this Note (and from time to time
thereafter upon the reasonable request of the Borrower), executed originals of
made.
If a payment made to the Lender under this Note would be subject to U.S. federal
withholding tax imposed by FATCA if the Lender were to fail to comply with the
further agrees, by its acceptance of this Note, that it shall deliver to the
and to determine that the Lender has complied with its obligations under FATCA
purposes of this paragraph, “FATCA” means Sections 1471 through 1474 of the
Internal Revenue Code, as the same may be amended after the date of this Note,
The Lender further agrees, by its acceptance of this Note, that it agrees that
3
has received a refund of any Subject Taxes as to which it has been indemnified
pursuant to the preceding four paragraphs (including by the payment of
additional amounts pursuant to such paragraphs), the Lender further agrees, by
its acceptance of this Note, that it shall pay to the Borrower an amount equal
to such refund (but only to the extent of indemnity payments made pursuant to
such paragraphs), and without interest (other than any interest paid by the
relevant governmental authority with respect to such refund).
enter into, or make any commitment to enter into, any arrangement for the
acquisition of any property through conditional sale, lease-purchase or other
title retention agreements, with respect to any property now owned or hereafter
acquired by the Borrower, other than a Permitted Lien. For purposes of this
Note, the following terms have the definitions assigned to them:
“Lien” means, with respect to any person, any security interest, mortgage,
instrument or device in, of or on any assets or properties of such person, now
(a)Liens granted to the Lender after the date of this Note to secure this Note.
(b)Liens existing on the date of this Note.
(c)Deposits or pledges to secure payment of workers’ compensation, unemployment
insurance, old age pensions or other social security obligations, in the
ordinary course of business of the Borrower.
(d)Liens for taxes, fees, assessments and governmental charges not delinquent at
Liens arising in the ordinary course of business, for sums not due or to the
extent that payment therefor shall not at the time be required to be made at the
time of determination.
secure payment of, indemnity, performance or other similar bonds.
Reserve Board, and (ii) such deposit account is not intended by the Borrower to
4
(h)Encumbrances in the nature of zoning restrictions, easements and rights or
leases on the premises rented that do not materially detract from the value of
such property or impair the use thereof in the business of the Borrower.
(i)The interest of any lessor under any capitalized lease or purchase money
Liens on property; provided, that, such Liens are limited to the property
acquired and do not secure indebtedness other than the related capitalized lease
obligations or the purchase price of such property.
(j)Other involuntary Liens imposed upon the Borrower in the ordinary course of
business.
then, in any such event, the holder hereof may, at its option, declare this Note
to be immediately due and payable, together with all unpaid interest accrued
hereon, without further notice or demand, but in the case of any of the
occurrence of any of events described in paragraphs (c) or (d) below, this Note
shall become automatically due and payable, including unpaid interest accrued
hereon, without notice or demand:
(a) The Borrower shall default in the due and punctual payment of any
installment of either principal of or interest on this Note when the same shall
become due and payable and such default shall continue for period of 10 calendar
days after written notice from the Lender;
(b) Default in the due observance or performance of any covenant,
pursuant to the terms of this Note, and such default shall continue for period
of 10 calendar days after written notice from the Lender;
(c) The Borrower shall (i) apply for or consent to the appointment of a
receiver, trustee or liquidator of Borrower or any of Borrower’s properties or
assets, (ii) admit in writing Borrower’s inability to pay Borrower’s debts as
be adjudicated a bankrupt or insolvent, or (v) file a voluntary petition in
with creditors to take advantage of any bankruptcy, reorganization, insolvency,
admitting the material allegations of a petition filed against Borrower in any
proceeding under any such law; or
(d) An order, judgment or decree shall be entered, without the
application, approval or consent of the Borrower, by any court of competent
jurisdiction, approving a petition seeking the reorganization or liquidation of
the Borrower or of all or a substantial part of the properties or assets of the
Borrower, or appointing a receiver, trustee or liquidator of the Borrower, and
period of ten days.
5
If this Note or any payment required to be made thereunder is not paid on the
due date (whether at original maturity or following acceleration), the holder
hereof shall have, in addition to any other rights it may have under applicable
laws, the right to set off the indebtedness evidenced by this Note against any
indebtedness of such holder to the Borrower.
No failure or delay on the part of the holder of this Note in exercising any
further exercise thereof of the exercise of any other power or right. No notice
The Borrower further agrees to reimburse the holder of this Note upon demand for
all reasonable out-of-pocket expenses, including reasonable attorneys’ fees, in
connection with such holder’s enforcement of the obligations of the Borrower
hereunder.
protest are hereby waived. In the event of an Event of Default, as set forth
above, the Borrower agrees to pay costs of collection and reasonable attorneys’
fees.
Lender agrees, by its acceptance of this Note, to offer, sell or otherwise
transfer this Note only in accordance with the provisions of Regulation S under
from registration under the Securities Act. In addition, Lender agrees not to
compliance with the Securities Act. Borrower will not register any transfer of
this Note unless made in accordance with the foregoing restrictions.
laws of the State of Washington (without giving effect to the conflicts of laws
principles thereof).
6
BIOLIFE SOLUTIONS, INC. By: Name: Roderick de Greef
Title: CFO
7
EXHIBIT B
FORM OF WARRANT
AMENDED (THE “U.S. SECURITIES ACT”). THIS WARRANT MAY NOT BE EXERCISED IN THE
UNITED STATES OR BY OR ON BEHALF OF A U.S. PERSON UNLESS REGISTERED UNDER THE
U.S. SECURITIES ACT OR AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE. THE
TERMS “UNITED STATES” AND “U.S. PERSON” ARE AS DEFINED IN REGULATION S UNDER THE
WILL NOT BE REGISTERED UNDER THE U.S. SECURITIES ACT. SUCH SECURITIES MAY BE
THE SECURITIES HAVE BEEN REGISTERED, IN COMPLIANCE WITH THE REGISTRATION
COMMON STOCK PURCHASE WARRANT
biolife solutions, inc.
Warrant Shares: 550,000 Initial Exercise Date: May 12, 2016
received, WAVI Holding AG or its assigns (the “Holder”) is entitled, upon the
for and purchase from BioLife Solutions, Inc., a Delaware corporation (the
“Company”), up to 550,000 shares (as subject to adjustment hereunder, the
1
Section 1. Definitions. In this Warrant, the following terms have the
meanings indicated below:
or other governmental action to close;
for, or otherwise entitles the holder thereof to receive, Common Stock;
d) “Exchange Act” means the United States Securities Exchange Act of 1934,
e) “Person” means an individual or corporation, partnership, trust,
open for trading;
any successors to any of the foregoing); and
2
Date and on or before 11:59 p.m. (NY Time) on the Termination Date by delivery
Holder appearing on the books of the Company) of a duly completed and executed
(together with, if applicable, a legal opinion of counsel satisfactory to the
Company) facsimile copy of the Notice of Exercise in the form annexed hereto and
the aggregate Exercise Price for the shares specified in the applicable Notice
the face hereof.
this Warrant shall be $1.75, subject to adjustment hereunder (the “Exercise
Price”).
c) Cashless Exercise. Notwithstanding anything herein to the contrary, on
the Termination Date, this Warrant shall be automatically exercised via a
where:
3
the Warrant Shares purchased hereunder to be transmitted by physical delivery to
is three (3) Trading Days after the delivery to the Company of the properly
completed and executed Notice of Exercise (together with, if applicable, a legal
opinion of counsel satisfactory to the Company) (such date, the “Warrant Share
Delivery Date”) and the Company’s receipt of payment of the aggregate Exercise
procedure specified in Section 2(c) below. The Warrant Shares shall be deemed to
iii. [Reserved]
iv. [Reserved]
whole share.
4
hereto duly completed and executed by the Holder and the Company may require, as
a condition thereto, evidence satisfactory to the Company that the assignment is
in compliance with applicable securities laws and the payment of a sum
5
Purchase Rights.
of this Warrant (without regard to any limitations on exercise hereof)
Distribution.
6
accordance with the provisions of this Section 3(d) pursuant to written
outstanding.
7
notice with the Securities and Exchange Commission pursuant to a Current Report
herein.
8
substantially in the form attached hereto duly completed and executed by the
Holder or its agent or attorney (together with evidence satisfactory to the
Company that the assignment is registered under the U.S. Securities Act or
exempt from such registration requirements) and funds sufficient to pay any
Notwithstanding the foregoing, the Holder and the Company agree that the Warrant
and the securities issuable upon exercise hereof may be transferred only if the
Holder has prior thereto provided to the Company written evidence satisfactory
to the Company that the transfer is being made in compliance with the provisions
of Regulation S under the U.S. Securities Act, pursuant to registration under
the U.S. Securities Act or pursuant to an available exemption from registration
under the U.S. Securities Act; and the Company shall refuse to register any
transfer not made in accordance with the foregoing. The Holder agrees not to
compliance with the U.S. Securities Act.
pursuant thereto.
9
certificate.
10
having jurisdiction thereof.
provisions of this Warrant, then the prevailing party in such action, suit or
11
imposed by state and federal securities laws, including a legend in
hereunder.
Holder at Paradiesstrasse 25, CH-6845, Jona, Switzerland, or to such other
address or addresses as any party may specify in writing to the other party
hereto.
12
Shares.
l) Amendment. The provisions of this Warrant may be amended and the
required to be performed by it, only with the written consent of the Holder and
the Company.
13
biolife solutions, inc. By: Name: Roderick de Greef
Title: CFO
14
NOTICE OF EXERCISE
To: biolife solutions, inc.
all applicable transfer taxes, if any. Payment shall be made in lawful money of
the United States.
(2) The undersigned certifies that (check applicable box):
¨ the undersigned is not a U.S. person, is not exercising this Warrant in the
United States or for the account or benefit of a U.S. person and has no
intention of offering or selling the Warrant Shares in the United States or to,
or for the account or benefit of, a U.S. person. The undersigned is acquiring
the Warrant Shares solely for its own account, for investment purposes only, and
will offer or sell the Warrant Shares only in accordance with the provisions of
“U.S. Securities Act”), pursuant to registration under the U.S. Securities Act
or pursuant to an available exemption from registration under the U.S.
Securities Act. The undersigned will not engage in any hedging transactions
involving the Warrant Shares unless conducted in compliance with the U.S.
Securities Act. The terms “United States” and “U.S. person” are as defined in
Regulation S under the U.S. Securities Act; or
¨ the Warrant and the Warrant Shares have been registered under the U.S.
Securities Act, or are exempt from registration thereunder, and the undersigned
has delivered herewith a written opinion of counsel (which must be satisfactory
to the Company) to such effect.
The Warrant Shares shall be delivered to the following address:
If the foregoing address is in the United States, and the undersigned has
checked the first box under paragraph 2 above, the Company may require that the
undersigned provide additional evidence that the securities are being issued in
an “offshore transaction” as defined in Regulation S under the U.S. Securities
Act.
_________________________________________________________________________
___________________________________________________
_____________________________________________________________________
______________________________________________________________________
Date:
________________________________________________________________________________________
EXHIBIT B
ASSIGNMENT FORM
FOR VALUE RECEIVED, [ ] all of or [ ] the foregoing
_______________ __, ______ Holder’s Name: ______________________
Holder’s Signature: ___________________ Name and Title of
Signatory (if Holder an entity): ______________________________
Holder’s Address: ____________________
NOTE: This Assignment Form must be accompanied by evidence, which must be
satisfactory to the Company, that the proposed assignment is being made in
exemption under the U.S. Securities Act.
|
Exhibit 10.22
LEASE AGREEMENT
BY AND BETWEEN
3915 SHOPTON ROAD, LLC
(AS LANDLORD)
AND
SHUTTERFLY, INC.
(AS TENANT)
LEASE AGREEMENT
THIS LEASE AGREEMENT (the “Lease”) made and entered into as of the 22nd day of
December, 2006 (the “Lease Date”), by and between
3915 SHOPTON ROAD, LLC, a North Carolina limited liability company
SHUTTERFLY, Inc., a Delaware corporation
hereinafter called “Tenant”:
Tenant hereby accepts and rents from Landlord, that certain office/warehouse
space (the “Premises”) containing approximately 102,400 rentable square feet
located in the building known as 18-B (the “Building”) in Shopton Ridge Business
Park (the “Business Park”), Charlotte, North Carolina, said Building being
located on a parcel of real property more particularly described on Exhibit ”A”
attached hereto. For purposes of this Lease, Tenant’s “proportionate share”
2. TERM. Unless otherwise adjusted as hereinbelow provided, the term
of this Lease shall commence on the later to occur of April 30, 2007 or upon
substantial completion of Landlord’s Work (the “Commencement Date”) and shall
end at midnight on the date (the “Expiration Date”) which is the last day of the
eighty-ninth (89th) month after the Commencement Date (as same may be adjusted
as hereinbelow provided). As used herein, the term “Lease Year” shall mean each
consecutive twelve-month period of the Lease term, beginning with the
Commencement Date (as same may be adjusted as hereinbelow provided) or any
anniversary thereof. Within five (5) days following the Commencement Date,
Tenant shall execute and deliver to Landlord duplicate originals of a written
agreement in the form attached to this Lease as Exhibit F.
3. RENTAL. During the full term of this Lease, Tenant shall pay to
Landlord, without notice, demand, reduction (except as may be applicable
pursuant to paragraph 13 or paragraph 19 herein or as otherwise provided in this
Lease), setoff or any defense, a total rental (the “Annual Rental”) consisting
of the sum total of the following:
(a) Minimum Rental. Commencing on the first day of the ninth (9th)
month following the Commencement Date (the “Rent Commencement Date”), as the
same may be adjusted pursuant to the last sentence of Section 4 hereof, and
continuing through the remainder of the initial eighty-nine (89) month term of
this Lease, Tenant shall pay an annual minimum rental (the “Minimum Rental”)
equal to Six and 48/100 Dollars ($6.48) per rentable square foot of space in the
Premises during Lease Year 1, increasing every year thereafter during the term
at a rate of three percent (3%), based on 102,400 square feet, including the
“free Annual Rent”, as set forth below. If the actual square footage of the
Premises, as determined by Landlord’s architect and certified to Landlord and
Tenant, shall be greater or lesser than 102,400 square feet based on the final
as-built square footage after completion of the Improvements described on
Exhibit ”C” to this Lease, then the Minimum Rental shall be adjusted based on
the actual square footage of the Premises. The Minimum Rental shall be payable
in equal monthly installments, each in advance on or before the first day of
each month. If the Rent Commencement Date is a date other than the first day of
a calendar month, the Minimum Rental shall be prorated daily from such date to
the first day of the next calendar month and paid on the Rent Commencement Date.
Period
80,000 SF Space
Annual Rent
22,400 SF Space
Annual Rent
Total Space
Annual Amount
Months 1-8
FREE
FREE
FREE
Months 9-13
$216,000.00
FREE
$216,000.00
Months 14-20
$302,400.00
$84,672.00
$387,072.00
Months 21-32
$533,600.00
$149,408.00
$683,008.00
Months 33-44
$549,600.00
$153,888.00
$703,488.00
Months 45-56
$565,600.00
$158,368.00
$723,968.00
Months 57-68
$582,400.00
$163,072.00
$745,472.00
Months 69-80
$599,200.00
$167,776.00
$766,976.00
Months 81-89
$462,600.00
129,528.00
$592,128.00
(b) Tenant’s Share of Taxes. Subject to the terms set forth in
Section 3(j) below, Tenant shall pay an amount equal to Tenant’s “proportionate
share” of ad valorem taxes (or any tax hereafter imposed in lieu thereof) with
respect to the Building and the Business Park. Tenant’s share of taxes shall be
paid as provided in subparagraph (e) below. Provided, any increase in ad
improvements made by, for or on account of Tenant shall be reimbursed by Tenant
to Landlord as Additional Rent (as defined below) within thirty (30) days after
(c) Tenant’s Share of Insurance Premiums. Subject to the terms set
forth in Section 3(j) below, Tenant shall pay an amount equal to Tenant’s
“proportionate share” of premiums charged for fire and extended coverage and
liability insurance with all endorsements carried by Landlord on the Building
payable for any calendar year (including any applicable partial calendar
year). Tenant’s proportionate share of premiums shall be paid as provided in
subparagraph (e) below.
(d) Tenant’s Share of Common Area Operating and Maintenance
Costs. Subject to the terms set forth in Section 3(j) below, Tenant shall pay
an amount equal to Tenant’s “proportionate share” of the reasonable costs for
operating and maintaining the Building’s common areas, including, but not
limited to, the cost of grass mowing, shrub care and general landscaping,
irrigation systems, maintenance and repair to parking and loading areas,
driveways, sidewalks, exterior lighting, garbage collection and disposal, common
water and sewer, common plumbing, common signs and other facilities shared by
the various tenants in the Building, the administrative costs associated
therewith including management fees, which shall be capped at 3% of the Minimal
Rental actually collected by Landlord from the Building during the initial term
and any subsequent renewal period(s), and of the Building’s share of the common
area operating and maintenance costs for the entire Business Park. Landlord
shall use good faith efforts to keep the operating and maintenance costs in line
with costs for other similarly situated business centers. Tenant’s
proportionate share shall be paid as provided in subparagraph (e)
below. Notwithstanding any term, covenant or condition as set forth in this
Lease, costs for operating and maintaining the Building’s common areas and the
Business Park’s common areas (but only during such time as Landlord and/or its
affiliate own a majority of the Business Park and control the operation of the
Business Park) shall specifically exclude the following:
(i) replacement of capital items (unless amortized over the useful life of such
item according to normal accounting procedures (a) but only to the extent that
such replacements reduce other direct expenses and are made after the
Commencement Date or (b) for replacements that are required under any
Commencement Date).
(ii) financing and refinancing costs and principal and interest payments on
mortgages and deeds of trust,
(iii) costs and expenses covered by insurance,
(iv) Landlord's insurance deductible,
(v) depreciation,
(vi) above market payments made to affiliates of Landlord, inside or related
contractors and executives,
(vii) income, profit, franchise, rent, sales, gift, estate, succession,
personal property taxes payable by Landlord,
(viii) any and all costs of Landlord for any clean-up, remediation,
environmental surveys/assessments, compliance with environmental laws,
disposal fees, etc., and
(ix) rent under any ground or underlying lease.
(e) Payment of Proportionate Share. Subject to the terms set forth in
Section 3(j) below, Tenant shall pay to Landlord each month, along with Tenant’s
installments of Minimum Rental a sum equal to one-twelfth (1/12) of the amount
estimated by Landlord (in its reasonable discretion) as Tenant’s proportionate
share of the taxes, insurance premiums and common area maintenance costs for
each calendar year during the Lease term (such amounts, together with any other
sums payable by Tenant to Landlord hereunder other than Minimum Rental being
referred to as “Additional Rent”). Landlord will provide Tenant with Landlord’s
estimate of Tenant’s proportionate share of taxes, insurance premiums and common
area operating and maintenance expenses amount for the year this Lease commences
within sixty (60) days after the Rent Commencement Date and for each future
upcoming calendar year on or before December 31 of each calendar year during the
term hereof. If Landlord fails to notify Tenant of Tenant’s revised
proportionate share amount by such date, Tenant shall continue to pay the
monthly installments of the proportionate share amount last payable by Tenant
until notified by Landlord of such new estimated amount. No later than April 30
of each calendar year of the term, Landlord shall deliver to Tenant a written
statement setting forth the actual amount of Tenant’s proportionate share for
taxes, insurance premiums and all common area operating and maintenance costs
for the preceding calendar year. Tenant shall pay the total amount of any
balance due shown on such statement within thirty (30) days after its
delivery. In the event such annual costs and increases decrease for any such
year, Landlord shall, at its sole election, either reimburse Tenant for any
overage paid within ten (10) days after delivery of such statement, or apply the
overage against the monthly installment(s) of any Annual Rental next due from
Tenant until such overage has been recovered by Tenant. For the calendar year
in which this Lease commences, Tenant’s proportionate share shall be prorated
from the Commencement Date through December 31 of such year. Further, Tenant
shall be responsible for the payment of Tenant’s proportionate share of taxes,
insurance premiums and common area operating and maintenance costs for the
calendar year in which this Lease term expires, prorated from January 1 thereof
through the Expiration Date. Upon the Expiration Date, Tenant shall pay any
unpaid estimated proportionate shares within thirty (30) days after the
Expiration Date, which estimate shall be made by Landlord based upon actual and
estimated costs for such year.
(f) Tenant’s Share of Mechanical Maintenance and Inspection
Costs. Pursuant to Paragraph 10 herein, Tenant shall be responsible, at its
sole cost, for routine mechanical maintenance and inspection services to the
heating, ventilation and air conditioning (“HVAC”) equipment supplying the
Premises.
(h) Late Payment. If any monthly installment of Minimum Rental,
percent (5%) of the unpaid rent or other payment (“Late Charge”). All unpaid
Lease shall bear interest from the fifteenth (15th) day after the due date
thereof until paid at the lesser of fifteen percent (15%) per annum or the
maximum interest rate per annum allowed by law (“Interest Charge”). Acceptance
by Landlord of any payment from Tenant hereunder in an amount less than that
which is currently due shall in no way affect Landlord’s rights under this Lease
and shall in no way constitute an accord and satisfaction. Notwithstanding the
foregoing, for the first two late payments by Tenant in any Lease Year, Tenant
shall have five (5) days from receipt of written notice from Landlord to make
such late payment before such Late Charge and Interest Charge shall apply.
(i) Audit. Tenant shall have the right, from time to time, to audit
Landlord’s books and records as they relate to any costs and expenses for which
Tenant is responsible under this Lease during the previous calendar year of the
Lease term. Any such audit shall be conducted during Landlord’s regular
business hours at the offices of Landlord where such records are kept utilizing
an independent third party (which shall be the same entity that Tenant uses for
similar auditing functions for other building(s) owned or leased by Tenant)
designated by Tenant, on a non-contingency basis. In the event any such audit
reveals that the costs and expenses for which Tenant has paid Tenant’s
proportionate share of such costs relative to any audit period exceed actual
costs and expenses for which Tenant is responsible for paying its proportionate
share, either: (i) Landlord shall credit or refund any overpayment to Tenant
within thirty (30) days of such audit report; or (ii) Tenant shall pay to
Landlord any underpayment within thirty (30) days of such audit report, as
applicable. All costs and expenses of any such audit shall be paid by Tenant,
unless such audit discloses a discrepancy in the amount of five percent (5%) or
more in which case Landlord shall pay for such audit, up to a maximum amount of
$5,000. Tenant may perform such an audit no more than once each calendar year
during the Lease term and Tenant shall maintain all information reviewed during
such audit in a confidential manner, only disclosing such information to
Tenant’s accountants, legal counsel, officers and managers. Tenant’s right to
audit shall in no way relieve Tenant’s obligations to pay Common Area Expenses
due to Landlord within thirty (30) days after receipt of an invoice therefor.
(j) Controllable Operating Expenses Cap. In no event shall Tenant’s
Controllable Operating Expenses, as defined in herein, for any calendar year
from and after 2008 exceed the Controllable Operating Expenses Cap. As used
herein, the term “Controllable Operating Expenses Cap” shall mean: (i) relative
to the calendar year 2008, the amount obtained by multiplying the amount of
Controllable Operating Expenses for calendar year 2007 by 1.05; and (ii)
relative to each calendar year subsequent to calendar year 2008, the amount
obtained by multiplying the Controllable Operating Expenses Cap for the previous
calendar year by 1.05. “Controllable Operating Expenses” shall mean all
operating and maintenance costs chargeable pursuant to this Lease other than:
(i) property taxes, including but not limited to, personal and ad valorem taxes;
(ii) cost of all insurance coverage for the Building and the common areas,
including, but not limited to, the cost of fire, casualty, rental abatement,
boiler and machinery, worker’s compensation and liability insurance applicable
to the Building and the common areas and Landlord’s personal property used in
connection therewith; (iii) all charges for gas, water, sewerage service,
electricity and other utilities furnished to the Building and the common areas;
(iv) ice and snow removal; and (v) the Building’s proportionate share of any and
all assessments and other charges payable by Landlord relative to the Business
Park under the terms of any applicable restrictive covenants, agreements or
similar documents.
4. DELIVERY OF POSSESSION. Landlord will deliver the Premises to
Tenant on the Commencement Date, with Landlord’s Work (as defined in Paragraph 1
of Exhibit ”C” attached hereto) substantially completed in accordance with the
Final Plans and Specifications (as defined in paragraph 1 of said Exhibit ”C”),
subject to revisions as mutually agreed to in writing by Landlord and Tenant, as
evidenced, if requested by Tenant, by the certification of Landlord’s architect
or other designated engineering representative. Tenant shall be given access
to the Premises upon written request to Landlord not more than sixty (60) days
prior to the Commencement Date, for the purposes of preparing the Premises for
Tenant’s use. With the exception of any Annual Rental payments due, all terms
and conditions of this Lease shall apply to Tenant upon such occupancy. Tenant
shall coordinate such occupancy with Landlord and shall not interfere with
Landlord’s completion of Landlord’s Work. If Landlord for any reason whatsoever
cannot substantially complete Landlord’s Work and deliver possession of the
Premises to Tenant on the Commencement Date as above specified, this Lease shall
damage resulting therefrom; but in that event (except to the extent that any
such delay(s) has been caused by Tenant or its agent(s), employee(s),
contractor(s) or subcontractor(s) (collectively, “Tenant Delay Factors”), and
provided that in each such instance Landlord first gives Tenant written notice
that if Tenant does not so cure its act or omission within two (2) business days
the same will thereafter be considered a Tenant Delay Factor, the Commencement
Date shall be adjusted to be the date when Landlord does in fact substantially
complete Landlord’s Work and deliver possession of the Premises to
Tenant. Notwithstanding anything herein to the contrary, in the event
Landlord’s Work is not complete by the date which is one hundred twenty (120)
days after the later to occur of: (i) waiver or expiration of the Contingency
(as defined in Section 7 of Exhibit “E” hereof); and (ii) approval by Landlord
and Tenant of space plans and construction drawings for the Premises (such date
referred to herein as the “Delivery Date”), except for reasons of Tenant Delay
Factors or force majeure, which force majeure delays shall only be extended by
up to 45 days, Tenant shall be granted three (3) days of free Minimal Rental for
every day beyond the Delivery Date until Landlord’s Work has been complete, and
the Rent Commencement Date shall be adjusted accordingly. In the event Landlord
is unable to deliver the Premises by September 30, 2007, Tenant may terminate
this Lease with no further obligation by providing Landlord written notice on or
before October 10, 2007.
(a) Tenant shall make no structural changes respecting the Premises or
the Building and shall make no changes of any kind respecting the Premises or
the Building that are visible from the exterior of the Premises or the Building,
without Landlord’s approval, which shall not be unreasonably withheld. Any
interior nonstructural changes or other alterations, additions, or improvements
to the Premises costing in excess of $20,000 in any single instance shall be
made by or on behalf of Tenant only with the prior written consent of Landlord,
which consent shall not be unreasonably withheld or delayed. Prior to any such
consent by Landlord, Tenant shall submit to Landlord reasonably detailed plans
and specifications covering the proposed work. If Landlord notifies Tenant of
any objections to the proposed alterations, Tenant must (i) revise the plans and
specifications to the extent reasonably necessary to secure the Landlord’s
approval and (ii) submit such revised plans and specifications for Landlord’s
approval. Tenant shall thereafter have the alterations performed in accordance
with the approved plans and specifications. After completion, Tenant shall
deliver to Landlord an “as-built” set of plans and specifications.
(b) Tenant shall not permit any lien or claim of lien against the
Premises to exist or come into being as a result of any construction work
performed on behalf of or at the direction of Tenant at the Premises and Tenant
shall bond off or release of record any lien within thirty (30) days of being
filed against the Premises. Tenant is not Landlord’s agent or nominee in
connection with any construction activities performed by or for Tenant on the
Premises and Landlord shall not be liable for the contracts or liabilities of
Tenant. Tenant agrees that any damage to the Premises caused by Tenant’s
than thirty (30) days after completion of any work in the Premises by Tenant
(including, but not limited to, the addition of equipment, cables or any
material that must be inspected), Tenant shall provide to Landlord (i) an
affidavit from the general contractor performing the work that same has been
substantially completed in accordance with the approved plans and specifications
and that all mechanics and materialmen in connection therewith have been paid in
full; (ii) a waiver of lien with respect to such construction work executed by
the general contractor and each subcontractor, except as to any contractor for
which Tenant has obtained a bond to pay any claims by such persons; and (iii) a
certificate of occupancy from the applicable governmental authorities, if
required, evidencing completion of such work in accordance all applicable laws,
codes and ordinances. In the event a certificate of occupancy cannot be
obtained for the Premises due to any action or inaction by Tenant, Tenant shall
be in default hereunder and must immediately comply with any and all
requirements to obtain a certificate of occupancy.
(c) All alterations, additions or improvements (collectively,
“Alterations”), including without limitation all partitions, walls, railings,
Tenant’s trade fixtures as described in the paragraph entitled “Trade Fixtures
and Equipment” below) made by, for, or at the direction of Tenant shall, at the
expiration or earlier termination of this Lease, become the property of
Landlord, , and shall remain upon the Premises at the expiration or earlier
termination of this Lease, provided, however, that Tenant shall have the right
(but not the obligation) to remove all Alterations and other items in the
Premises or the Building (such as chillers and generators), except that Tenant
shall be obligated to remove those Alterations which Landlord designates in
writing for removal at the time Landlord grants its consent to such
Alterations. Tenant shall repair any damage caused to the Premises by said
removal of Alterations.
(a) Tenant shall use the Premises only for manufacturing, warehousing
and distribution, general office, data center and ancillary uses, and for any
other legal purpose. Tenant shall comply with all laws, ordinances, orders,
underwriters or rating bureaus) having jurisdiction over the Premises
(collectively, “Legal Requirements”) to the extent made necessary by reason of
Tenant’s particular use or occupancy of the Premises. Tenant shall not do any
act or follow any practice relating to the Premises which shall constitute a
nuisance or detract in any way from the reputation of the Building. Tenant’s
duties in this regard shall include allowing no noxious or offensive odors,
vibrations to originate in or emit from the Premises in excess of what is
commercially reasonable.
(b) Without limiting the generality of (a) above, and excepting only
business operations (but not held for sale, storage or distribution) customarily
used in facilities such as the Building, and then only to the extent same are
used, stored (but not any bulk storage), transported, and disposed of strictly
in accordance with all applicable laws, regulations and manufacturer’s
recommendations), the Premises shall not be used for the treatment, storage,
occupants of the Building or surrounding property except for chemicals and other
substances used in connection with Tenant’s photo-developing and merchandising
processes and services provided such chemicals and other substances are brought
into the Premises, used, stored and disposed of in accordance with all Legal
Requirements and Environmental Laws.
(c) Landlord hereby represents and warrants to Tenant that as of the
Commencement Date, the Premises and Building shall be in compliance with all
applicable Legal Requirements, including without limitation, Environmental Laws
restrictive covenants relating to the Building and the Business Park, and Tenant
shall abide by these restrictions in connection with its use of the Premises.
Premises and shall not commit or allow waste to be committed on any portion of
the Premises; and at the expiration or earlier termination of this Lease, Tenant
shall deliver the Premises to Landlord in as good condition as same were on the
date of completion of the Improvements in the Premises or were thereafter placed
by Landlord or Tenant, ordinary wear and tear, condemnation, fire or other
casualty and acts of God and the elements alone excepted.
(f) Tenant shall save Landlord harmless from any claims, liabilities,
penalties, fines, costs, expenses or damages resulting from the failure of
Tenant to comply with the provisions of this paragraph 6. This indemnification
7. TAXES.
any nature imposed or assessed upon Tenant’s trade fixtures, equipment,
or assessments may become due and payable without any delinquency. Tenant shall
provide Landlord with copies of all paid receipts respecting such tax or charge
upon request by Landlord.
provided in paragraph 3 herein, all ad valorem property taxes which are now or
hereafter assessed upon the Building and the Premises, except as otherwise
8. FIRE AND EXTENDED COVERAGE INSURANCE. Landlord shall maintain and
pay for fire insurance, with extended coverage, covering the Building equal to
at least one hundred percent (100%) of the replacement cost thereof. Tenant
shall not do or cause to be done or permit on the Premises or in the Building
anything deemed extrahazardous on account of fire and Tenant shall not use the
Premises or the Building in any manner which will cause an increase in the
because of anything done, caused to be done, permitted or omitted by Tenant or
its agent(s), contractor(s), employee(s), invitee(s), licenses(s), servant(s)
subcontractor(s) or subtenant(s) the premium rate for any kind of insurance in
effect on the Building or any part thereof shall be raised, Tenant shall pay
Landlord on demand the amount of any such increase in premium which Landlord
shall pay for such insurance and if Landlord shall demand that Tenant remedy the
condition which caused any such increase in an insurance premium rate, Tenant
shall remedy such condition within five (5) days after receipt of such
demand. Tenant shall maintain and pay for all fire and extended coverage
insurance on its contents in the Premises, including trade fixtures, equipment,
machinery, merchandise or other personal property belonging to or in the custody
of Tenant.
9. LANDLORD’S COVENANT TO REPAIR AND REPLACE.
(a) During the term of this Lease, Landlord shall be responsible only
for repairs or replacements, at its sole cost and expense, to the roof, exterior
walls, floor slab, structural members (including foundation and subflooring of
the Premises) and for the central plumbing and electrical systems serving the
entire Building up to the respective applicable points of entry of same into the
Premises. Landlord’s repairs and replacements shall be made within a reasonable
time. If the need for such repairs or replacements is the result of the
negligence, misconduct or intentional acts or omissions of Tenant, its agent(s),
subcontractor(s) or subtenant(s) and the expense of such repairs or replacements
are not fully covered and paid by Landlord’s insurance, then Tenant shall pay
Landlord the full amount of expenses not covered. Landlord’s duty to repair or
replace as prescribed in this paragraph shall be Tenant’s sole remedy and shall
be in lieu of all other warranties or guaranties of Landlord, express or
implied.
or to perform any maintenance required of Landlord hereunder unless such failure
shall persist for thirty (30) days (except in case of emergency) after written
notice from Tenant setting forth the need for such repair(s) or replacement(s)
in reasonable detail has been received by Landlord. Except as set forth in the
paragraph of this Lease, entitled “Damage or Destruction of Premises” or
elsewhere in this Lease, there shall be no abatement of rent. There shall be no
business arising from the making of any repairs, replacements, alterations or
appurtenances and equipment therein, provided that Landlord uses reasonable
efforts to minimize interference with Tenant’s use and occupancy of the
Premises. In the event of any failure by Landlord to perform any of its
obligations hereunder, Tenant (except in the case of an emergency) shall take no
action without having first given Landlord thirty (30) days written notice of
any such default. Following such notice and failure by Landlord to cure, Tenant
shall have the right to take the necessary actions to perform Landlord's uncured
obligations hereunder and invoice Landlord for the actual and reasonable costs
and expenses thereof, unless Landlord has diligently commenced to perform its
uncured obligations hereunder within said thirty (30) day period. Landlord
shall remit payment to Tenant within thirty (30) days of receipt of a paid
invoice and applicable lien waivers from Tenant. If Landlord fails to remit
payment to Tenant within the aforesaid thirty (30) day period, Tenant shall have
the right to offset and deduct such sum; such offset not to exceed twenty-five
percent (25%) of Minimum Rental for each month until Tenant is made whole.
10. TENANT’S COVENANT TO REPAIR. Tenant shall be responsible for the
repair, replacement and maintenance in good order and condition of all parts and
components of the Premises, other than those specified for repair, replacement
and maintenance by Landlord above, including without limitation the plumbing,
wiring, electrical systems, HVAC system (subject to the provisions below), glass
and plate glass, and the equipment and machinery constituting fixtures, unless
such repairs or replacements are required as a result of the negligence or
intentional misconduct of Landlord, its agent(s), contractor(s), employee(s),
invitee(s), or subcontractor(s) in which event Landlord shall be responsible for
such repairs. Tenant’s duty to maintain the HVAC system shall specifically
include the duty to enter into and maintain at Tenant’s sole expense during the
entire term of this Lease a contract(s) for the routine and periodic maintenance
and regular inspection of such HVAC system, the replacement of filters as
recommended and the performance of other recommended periodic servicing in
accordance with applicable manufacturer’s standards and recommendations. Such
contract (a) shall be with a reputable contractor reasonably satisfactory to
Landlord; (b) shall satisfy the requirements for routine and periodic
maintenance, if any, necessary to keep all applicable manufacturer’s warranties
in full force and effect; and (c) shall provide that in the event this Lease
expires or is earlier terminated for any reason whatsoever that said contract
shall be immediately terminable by Landlord or Tenant without any cost, expense
or other liability on the part of Landlord. Notwithstanding, Landlord shall
pay up to $1,000 in each instance toward replacement of the HVAC system, any
major component of the HVAC system(s) and/or any operating system (unless the
same is caused by the negligence of Tenant, its employees, contractors or
agents). In the event the costs for replacement of any HVAC system, any major
component of the HVAC system(s) and/or any operating system not caused by the
negligence of Tenant, its employees, contractors or agents is greater than
$1,000 in each instance, Landlord shall pay the same which shall be amortized
over the useful life of such replaced system (based upon standard accounting
principles) and charged to Tenant proportionately. Tenant shall be obligated to
pay all such costs within thirty (30) days after notice from Landlord.
11. TRADE FIXTURES AND EQUIPMENT. Any trade fixtures installed in the
Premises at Tenant’s expense shall remain Tenant’s personal property and Tenant
shall have the right at any time during the term of this Lease to remove such
trade fixtures. Upon removal of any trade fixtures, Tenant shall immediately
restore the portion of the Premises damaged by such removal to the condition
required by Section 6(e) of this Lease. Any trade fixtures not removed by Tenant
after the expiration or an earlier termination of the Lease shall become, at
Landlord’s sole election, either (i) the property of Landlord, in which event
Landlord shall be entitled to handle and dispose of same in any manner Landlord
deems fit without any liability or obligation to Tenant or any other third party
with respect thereto, or (ii) subject to Landlord’s removing such property from
the Premises and storing same, all at Tenant’s expense and without any recourse
against Landlord with respect thereto. Without limiting the generality of the
foregoing, the following property shall in no event be deemed to be “trade
fixtures” and Tenant shall not remove any such property from the Premises under
any circumstances, regardless of whether installed by Landlord or Tenant: (a)
any air conditioning, air ventilating or heating fixtures or equipment (with the
exception of a portable dehumidifier installed by Tenant in the Premises); (b)
any lighting fixtures or equipment; (c) any dock levelers; (d) any carpeting or
other permanent floor coverings; (e) any paneling or other wall coverings; or
(f) plumbing fixtures and equipment.
to its use of the Premises, including, without limitation, electricity, gas,
heat, water, sewer, telephone and janitorial services. All utilities shall, as
of the Commencement Date, have separate meters at Landlord’s sole
expense. Landlord shall not be responsible for the stoppage or interruption
of utilities services other than as required by its limited covenant to repair
and replace set forth above, nor shall Landlord be liable for any damages caused
by or from the plumbing and sewer systems, provided, however, that Annual Rental
shall abate if any utility service is not provided to the Premises for more than
five (5) continuous days due to Landlord’s negligence. Tenant shall have the
right to place a generator and chiller outside the Premises in a location
13. DAMAGE OR DESTRUCTION OF PREMISES. If the Premises are damaged by
fire or other casualty, either in whole or in part, but no part of the Premises
is rendered untenantable for Tenant’s business, Landlord shall cause such damage
to be repaired (to the extent of the Base Building (as hereinafter defined) and
Landlord’s Work) without unreasonable delay and the Annual Rental shall not be
abated. If by reason of such casualty the Premises are rendered untenantable in
Tenant’s business, either in whole or in part, Landlord shall cause the damage
to be repaired or replaced (to the extent of the Base Building and Landlord’s
Work) without unreasonable delay, and, in the interim, the Annual Rental shall
be proportionately reduced as to such portion of the Premises as is rendered
extension of the term of this Lease. Provided, however, if by reason of such
casualty, the Premises are rendered untenantable in some material portion, and
the amount of time required to repair the damage using due diligence is in
excess of one hundred twenty (120) days, then either party shall have the right
to terminate this Lease by giving written notice of termination within sixty
(60) days after the date of casualty, and the Annual Rental shall abate as of
the date of such casualty in the event of such termination. Notwithstanding the
other provisions of this paragraph, in the event there should be a casualty loss
to the Premises to the extent of fifty percent (50%) or more of their
replacement value or if the Premises are rendered untenantable for the conduct
of Tenant’s business operations during the last twelve (12) months of the
initial term or any extended term, either party may, at its option, terminate
this Lease by giving written notice within sixty (60) days after the date of the
casualty and Annual Rental shall abate as of the date of such notice. Except
as provided herein, Landlord shall have no obligation to rebuild or repair in
case of fire or other casualty, and no termination under this paragraph shall
the other party. Tenant shall give Landlord immediate notice of any fire or
other casualty in the Premises.
14. GOVERNMENTAL ORDERS. Except as hereinbelow set forth regarding
compliance of the physical structure of the Premises with the applicable
regulations (the “ADA”) as of the Commencement Date, Tenant agrees, at its own
expense, to comply promptly with all requirements of any legally constituted
public authority that may be in effect from time to time made necessary by
reason of Tenant’s particular use or occupancy of the Premises. Landlord agrees
to comply promptly with any such requirements if not made necessary by reason of
Tenant’s particular use or occupancy, at its sole cost and expense. With regard
to the physical structure of the Premises, Landlord agrees to construct the
Premises in compliance with the applicable requirements of the ADA in effect as
of the Commencement Date (it being understood that under no circumstances shall
Tenant be responsible for any costs incurred to cause the Premises to comply
with the ADA, which may include, but is not limited to, restroom facilities,
emergency strobe lights and horns, and building access). If it is determined
that for any reason Landlord shall have failed to cause the physical structure
of the Premises to be brought into compliance with the ADA as of the
Commencement Date (to at least the minimum extent required under applicable
the action(s) necessary to cause the physical structure of the Premises to so
comply, and Tenant acknowledges and agrees that Landlord has and shall have no
other obligation or liability whatsoever to Tenant, or to anyone claiming by or
through Tenant, regarding any failure of the Premises or the activities therein
to comply with the applicable requirements of the ADA. Landlord and Tenant
agree, however, that if any actions is necessary in order to comply with any of
the above requirements during the last two (2) years of the Lease and such
action to comply with any of the above requirements would cost Landlord in
excess of one (1) year’s rent, then Landlord may terminate this Lease by giving
written notice of termination to Tenant, which termination shall become
effective sixty (60) days after receipt of such notice, and which notice shall
eliminate the necessity of compliance with such requirement by Landlord, unless
Tenant shall elect, before termination becomes effective, to pay to Landlord all
costs for the necessary compliance.
15. MUTUAL WAIVER OF SUBROGATION. For the purpose of waiver of
subrogation, the parties mutually release and waive unto the other all rights to
claim damages, costs or expenses for any injury to property of Landlord or
Tenant caused by a casualty of any type whatsoever in, on or about the
Premises All insurance policies carried with respect to this Lease, if
Tenant.
(a) Tenant may install one (1) tenant identification sign in
accordance with Building standards and subject to Landlord's prior written
approval (not to be unreasonably withheld, delayed or conditioned), such sign to
be located at or near the Tenant’s front entrance to the Premises within the
Building. Tenant shall submit sign drawings to Landlord for approval prior to
fabrication and installation. The following submission requirements, in
duplicate, constitute the minimum data required: (i) layout, size, location and
color of test; (ii) layout of additional symbols or logo; (iii) installation
details; and (iv) lighting details, if applicable. In the event Tenant desires
any changes to its initial sign, Tenant shall reimburse Landlord for its actual
legal fees for Landlord’s review and approval of a new sign. If at any time
during the term of this Lease (as same may be extended) Landlord provides
signage on a monument to other tenants in the Building, Landlord shall at
Tenant’s cost provide Tenant with similar signage on such monument.
(b) In order to provide architectural control for the Building, Tenant
shall, without Landlord’s prior written approval, install no other exterior
signs, marquees, billboards, outside lighting fixtures and/or other decorations
on the Premises or the Building. Landlord shall have the right to remove any
such sign or other decoration and restore fully the Premises at the cost and
expense of Tenant if any such exterior work is done without Landlord’s prior
written approval, which approval Landlord shall be entitled to withhold or deny
in its reasonable discretion. Tenant shall not permit, allow or cause to be
used in, on or about the Premises any sound production devices, mechanical or
moving display devices, bright lights, or other advertising media, the effect of
which would be visible or audible from the exterior of the Premises, unless
costs and expenses thereof (including without limitation reasonable attorneys’
fees) arising out of injury to persons (including death) or property occurring
in, on or about, or arising out of the Premises or other areas in the Building
if caused or occasioned wholly or in part by any act(s) or omission(s) of
servant(s), subcontractor(s) or subtenant(s), except if caused by any act(s) or
omission(s) on the part of Landlord, its agent(s), contractor(s), employee(s),
invitee(s), licensee(s), servant(s) or subcontractor(s). Tenant shall give
Landlord immediate notice of any such happening causing injury to persons or
property.
Landlord, its agent(s), employee(s), contractor(s), invitee(s), licensee(s),
servant(s) or subcontractor(s), except if caused by any act(s) or omission(s) on
licensee(s), servant(s), subcontractor(s) or subtenant(s). Provided, however,
Landlord shall not be liable for any damage caused or occasioned by or from
water, snow or ice being upon or coming through the roof, trapdoor, walls,
windows, doors, or otherwise in, upon or about the Premises or the Building or
from any damage arising from acts or omissions of tenants or other occupants of
the Building, unless due to negligence of Landlord, its agent(s), contractor(s),
(c) (i) At all times during the term of this Lease, Tenant shall at
its own expense keep in force adequate public liability insurance under the
terms of a commercial general liability policy (occurrence coverage) in the
amount of not less than $2,000,000.00 coverage and with such company(ies)
licensed to do business in the state in which the Premises is located as shall
from time to time be reasonably acceptable to Landlord (and to any lender having
a mortgage interest in the Premises) and naming Landlord as an additional
insured (and, if requested by Landlord from time to time, naming Landlord’s
mortgagee as an additional insured). Such insurance shall include, without
performance by Tenant of the indemnity agreements set forth in this
Lease. Tenant shall first furnish to Landlord copies of policies or
certificates of insurance evidencing the required coverage prior to the
Commencement Date and thereafter prior to each policy renewal date. All
policies required of Tenant hereunder shall contain a provision whereby the
insurer is not allowed to cancel or change materially the coverage without first
giving thirty (30) days’ written notice to Landlord, and (ii) at all times
during the term of this Lease, Landlord shall at its own expense keep in force
adequate public liability insurance under the terms of a commercial general
liability policy (occurrence coverage) in the amount of not less than
$2,000,000.00 coverage and with such company(ies) licensed to do business in the
state in which the Premises is located. Such insurance shall include, without
performance by Landlord of the indemnity agreements set forth in this
Lease. Landlord shall first furnish to Tenant copies of policies or
certificates of insurance evidencing the required coverage upon request.
(d) The non-prevailing party shall also pay all costs, expenses and
reasonable attorneys’ fees that may be incurred by the prevailing party in
enforcing the agreements of this Lease, whether incurred as a result of
litigation or otherwise.
18. LANDLORD’S RIGHT OF ENTRY. Provided that Landlord uses reasonable
Premises, Landlord, and those persons authorized by it, shall have the right to
enter the Premises at all reasonable times and upon 24 hours prior notice
(except in the case of emergency) for the purposes of making repairs, making
connections, installing utilities, providing services to the Premises or for any
other tenant, making inspections or showing the same to prospective purchasers
and/or lenders, as well as at any time in the event of emergency involving
possible injury to property or persons in or around the Premises or the
Building. Further, during the last three (3) months of the initial or of any
extended term, Landlord and those persons authorized by it shall have the right
at reasonable times and upon reasonable notice to show the Premises to
prospective tenants.
19. EMINENT DOMAIN. If any substantial portion of the Premises is
thereof) or if such taking shall materially impair the normal operation of
such taking. If neither party elects to terminate this Lease, Landlord shall
repair and restore the Premises (to the extent possible) to substantially the
same condition as the Premises existed immediately prior to such taking and the
Annual Rental shall be proportionately and equitably reduced. All compensation
awarded for any taking (or the proceeds of a private sale in lieu thereof) shall
be the property of Landlord whether such award is for compensation for damages
to the Landlord’s or Tenant’s interest in the Premises, and Tenant hereby
assigns all of its interest in any such award to Landlord; provided, however,
Landlord shall not have any interest in any separate award made to Tenant for
Tenant’s Alterations, loss of business, moving expense or the taking of Tenant’s
and if such separate award does not reduce the award to Landlord.
(the “Events of Default,” any one an “Event of Default”), the party not in
default shall have the right to exercise any rights or remedies available in
this Lease, at law or in equity provided same are exercised in accordance with
applicable Legal Requirements. Events of Default shall be:
(i) Tenant’s failure to pay when due any rental or other sum of money
payable hereunder and such failure is not cured within ten (10) days after
written notice thereof;
(ii) Failure by either party to perform any other of the terms,
covenants or conditions contained in this Lease if not remedied within thirty
(30) days after receipt of written notice thereof, or if such default cannot be
remedied within such period, such party does not within thirty (30) days after
the default and shall not thereafter complete such act or acts within a
reasonable time;
(iii) Tenant shall become bankrupt or insolvent, or file any debtor
proceedings, or file pursuant to any statute a petition in bankruptcy or
insolvency or for reorganization, or file a petition for the appointment of a
petition or appointment shall not have been set aside within ninety (90) days
(iv) Tenant allows its leasehold estate to be taken under any writ of
execution and such writ is not vacated or set aside within ninety (90) days.
Default by Tenant, shall have the immediate right, after any applicable grace
period expressed herein (but in no event upon less than five (5) days prior
written notice), to terminate and cancel this Lease and/or to reenter and remove
caused thereby. If Landlord reenters the Premises, it may either terminate this
Lease or from time to time without terminating this Lease, Landlord shall make
such alterations and repairs as may be necessary or appropriate to relet the
Premises and relet the Premises upon such terms and conditions as Landlord deems
advisable without any responsibility on Landlord whatsoever to account to Tenant
for any surplus rents collected. No retaking of possession of the Premises by
Landlord shall be deemed as an election to terminate this Lease unless a written
notice of such intention is given by Landlord to Tenant at the time of reentry;
but, notwithstanding any such reentry or reletting without termination, Landlord
may at any time thereafter elect to terminate for such previous default. In the
event of an elected termination by Landlord, whether before or after reentry,
Landlord may recover from Tenant damages, including the costs of recovering the
Premises, and Tenant shall remain liable to Landlord for the total Annual Rental
as would have been payable by Tenant hereunder for the remainder of the term
(which may at Landlord’s election be accelerated to be due and payable in full
as of the Event of Default and recoverable as damages equal to the net present
value of future rent, discounted at the greater of (i) eight percent (8%) or
(ii) the then applicable “discount rate” of the Federal Reserve Bank of
Charlotte, North Carolina plus one percent (1.0%) per annum, less the Market
Rate (as defined in Exhibit “E” hereof) of the Premises for the remainder of the
Term) less the rents actually received from any reletting. In determining the
Annual Rental which would be payable by Tenant subsequent to default, the Annual
Rental for the unexpired portion of the term shall be equal (on a monthly basis)
to the Annual Rental payable by Tenant immediately prior to the default. If any
rent owing under this Lease is collected by or through an attorney, Tenant
agrees to pay Landlord’s reasonable attorneys’ fees to the extent allowed by
applicable law.
(c) In the case of Tenant's default as contemplated herein, Landlord
shall have a duty to mitigate its damages.
21. SUBORDINATION. This Lease is subject and subordinate to any and
all mortgages or deeds of trust now or hereafter placed on the property of which
the Premises are a part, and this clause shall be self-operative without any
further instrument necessary to effect such subordination; however, if requested
by Landlord, Tenant shall promptly execute and deliver to Landlord any such
mortgages or deeds of trust. Provided, however, in each case the holder of the
mortgage or deed of trust shall (which in the case of an existing holder of a
mortgage or deed of trust, prior to the Commencement Date) agree that this Lease
shall not be divested by foreclosure or other default proceedings thereunder so
long as Tenant shall not be in default under the terms of this Lease beyond any
applicable cure period set forth herein. Tenant shall continue its obligations
under this Lease in full force and effect notwithstanding any such default
proceedings under a mortgage or deed of trust and shall attorn to the mortgagee,
trustee or beneficiary of such mortgage or deed of trust, and their successors
or assigns, and to the transferee under any foreclosure or default
proceedings. Tenant will, upon request by Landlord, execute and deliver to
Landlord or to any other person designated by Landlord, any instrument or
instruments required to give effect to the provisions of this paragraph.
22. ASSIGNING AND SUBLETTING. Tenant shall not assign, sublet,
mortgage, pledge or encumber this Lease, the Premises, or any interest in the
whole or in any portion thereof, directly or indirectly, without the prior
delayed or conditioned. If Tenant makes any such assignment, sublease,
mortgage, pledge or encumbrance with Landlord’s written consent, Tenant will
still remain primarily liable for the performance of all terms of this Lease and
one-half (1/2) of any rental or any net fees or charges received by Tenant
(after deduction by Tenant of Tenant’s third-party brokerage fees, legal fees,
architectural fees, advertising costs and the reasonable costs of refitting or
improving the Premises for the proposed assignee or subtenant, and free rent and
improvement allowances granted, in connection with such transaction) in excess
of the Annual Rental payable to Landlord hereunder shall be also paid to
Landlord as further rental under this Lease. Landlord’s consent to one
subsequent assignment or sublease as required herein. Notwithstanding the
foregoing, Tenant shall have the absolute right to assign this Lease and/or
sublet any part or all of the Premises, without the Landlord's consent, to any
of Tenant's subsidiary(s), joint venture partner(s), partnership(s), or other
affiliated or related entity(s), and/or to a successor(s) in interest to any
part and/or all of Tenant's business including, without limitation, a sale of
assets ("Permitted Transfer"). A Permitted Transfer shall include a merger or
consolidation with another entity and/or an assignment or subletting to another
entity which is controlled by Tenant or is under common control of Tenant and
other entity. Regardless of Landlord's consent, no assignment or sublease shall
release Tenant of Tenant's obligations hereunder.
23. TRANSFER OF LANDLORD’S INTEREST. If Landlord shall sell, assign
or transfer all or any part of its interest in the Premises or in this Lease to
a successor in interest which expressly assumes the obligations of Landlord
hereunder, then Landlord shall thereupon be released or discharged from all
covenants and obligations hereunder which accrue after such sale, assignment or
transfer, and Tenant shall look solely to such successor in interest for
performance of all of Landlord’s obligations which accrue after such sale,
assignment or transfer. Tenant’s obligations under this Lease shall in no
manner be affected by Landlord’s sale, assignment, or transfer of all or any
part of such interest(s) of Landlord, and Tenant shall thereafter attorn and
look solely to such successor in interest as the Landlord hereunder.
24. COVENANT OF QUIET ENJOYMENT. Landlord represents that it has full
right and authority to lease the Premises and Tenant shall peacefully and
quietly hold and enjoy the Premises for the full term hereof so long as Tenant
does not default in the performance of any of the terms hereof beyond the
25. ESTOPPEL CERTIFICATES. Within ten (10) business days after a
request by Landlord, Tenant shall deliver a written estoppel certificate, in
form supplied by or acceptable to Landlord, certifying any facts that are then
true with respect to this Lease, including without limitation that this Lease is
in full force and effect, that no default exists on the part of Landlord or
Tenant (or listing such default in case any exists), that Tenant is in
possession, that Tenant has commenced the payment of rent, and that Tenant
claims no defenses or offsets (or listing such defenses or offsets in case any
exists) with respect to payment of rentals under this Lease. Likewise, within
ten (10) business days after a request by Tenant, Landlord shall deliver to
Tenant a similar estoppel certificate covering such matters as are reasonably
required by Tenant. Landlord and Tenant shall each agree not to make such
request more than 2 times per calendar year.
26. LIENS.
mechanics’, materialmen’s or other types of liens whatsoever, against all or any
part of the Premises by reason of any claims made by, against, through or under
Tenant. If any such lien is filed against the Premises, Tenant shall either
cause the same to be discharged of record within thirty (30) days after filing
or, if Tenant in its discretion and in good faith determines that such lien
should be contested, it shall furnish such security as may be necessary to
prevent any foreclosure proceedings against the Premises during the pendency of
such contest. If Tenant shall fail to discharge such lien within said time
period or fail to furnish such security, then Landlord may at its election, in
addition to any other right or remedy available to it, discharge the lien by
paying the amount claimed to be due or by procuring the discharge by giving
security or in such other manner as may be allowed by law. If Landlord acts to
discharge or secure the lien then Tenant shall immediately reimburse Landlord
for all sums paid and all costs and expenses (including reasonable attorneys’
fees) incurred by Landlord involving such lien together with interest on the
total expenses and costs at the maximum lawful rate. It is specifically agreed
to by the parties that Tenant is not acting as an agent for Landlord and that
Landlord shall not be liable for the contracts or liabilities of Tenant.
(b) Landlord hereby waives any and all liens Landlord may otherwise be
entitled to against any and all of Tenant’s personal property, equipment and
other assets.
27. MEMORANDUM OF LEASE. If requested by Tenant, Landlord shall
execute a recordable Memorandum or Short Form Lease, prepared at Tenant’s
expense, specifying the exact term of this Lease and such other terms as the
parties shall mutually determine.
28. FORCE MAJEURE. In the event Landlord or Tenant shall be delayed,
hindered or prevented from the performance of any act required hereunder, by
reason of governmental restrictions, scarcity of labor or materials, strikes,
fire, or any other reasons beyond its reasonable control, the performance of
performance of any such act shall be extended as necessary to complete
performance after the delay period, provided, however, that Landlord’s or
Tenant’s performance of its obligations under this Lease shall not otherwise
be affected or diminished . However, the provisions of this paragraph shall in
no way be applicable to Tenant’s obligations to pay Annual Rental or Landlord’s
or Tenant’s obligations to pay any other sums, monies, costs, charges or
expenses required by this Lease.
29. REMEDIES CUMULATIVE -- NONWAIVER. Unless otherwise specified in
this Lease, no remedy of Landlord or Tenant shall be considered exclusive of any
other remedy, but each shall be distinct, separate and cumulative with other
available remedies. Each remedy available under this Lease or at law or in
equity may be exercised by Landlord or Tenant from time to time as often as the
need may arise. No course of dealing between Landlord and Tenant or any delay
or omission of Landlord or Tenant in exercising any right arising from the other
party’s default shall impair such right or be construed to be a waiver of a
default.
30. HOLDING OVER. Tenant shall have the right to holdover in
possession of the Premises for up to six (6) months under the same terms and
conditions of this Lease, with the exception that Tenant shall be allowed to
vacate the Premises at any time during such six (6) month period after giving
Landlord 30 days prior written notice. After such six (6) month period, if
Tenant continues to remain in possession of the Premises or any part thereof,
whether with or without Landlord’s acquiescence, (i) Tenant shall be deemed only
a tenant at will and there shall be no renewal of this Lease without a written
agreement signed by both parties specifying such renewal, (ii) the “monthly”
rental payable by Tenant during any such tenancy at will period shall be one
hundred twenty-five percent (125%) of the monthly installments of Annual Rental
payable during the final year immediately preceding such expiration, and
(iii) Tenant shall also remain liable for any and all direct damages suffered
by Landlord as a result of any holdover without Landlord’s unequivocal written
acquiescence.
31. NOTICES. Any notice allowed or required by this Lease shall be
deemed to have been sufficiently served if the same shall be in writing and (i)
placed in the United States mail, via certified mail or registered mail, return
receipt requested, with proper postage prepaid or (ii) delivered to any
nationally recognized overnight courier, and addressed as follows:
AS TO LANDLORD:
Shopton Ridge Business Park Limited Partnership
c/o American Asset Corporation
3700 Arco Corporate Drive, Suite 350
Attention: President with a copy to General Counsel
AS TO TENANT: Shutterfly, Inc.
2800 Bridge Parkway
Attention: Chief Financial Officer with a copy to Vice
President, Legal
32. LEASING COMMISSION. Landlord and Tenant represent and warrant
each to the other that they have not dealt with any broker(s) or any other
person claiming any entitlement to any commission in connection with this
transaction except American Asset Corporation and Trammel Crow Services, Inc.
(the “Broker”). Landlord and Tenant agree to indemnify and save each other
to Broker. Landlord agrees to be responsible for the leasing commission due
Broker pursuant to a separate written agreement between Landlord and Broker, and
to hold Tenant harmless respecting same.
33. MISCELLANEOUS.
time to prescribe reasonable rules and regulations (the “Rules and
Regulations”) for Tenant’s use of the Premises and the Building, provided same
do not materially adversely affect Tenant’s use or occupancy of the Premises or
the operation of Tenant’s business. A copy of Landlord’s current Rules and
Regulations respecting the Premises and the Building is attached hereto as
Exhibit ”D”. Subject to paragraph 9 of Exhibit “D” and to paragraph 6 of
Exhibit “E” attached hereto, Tenant shall abide by and use reasonable efforts to
actively enforce on all its employees, agents, invitees and licensees such
regulations including without limitation rules governing parking of vehicles in
designated portions of the Building.
furnish appropriate legal documentation evidencing the valid existence and good
standing of Tenant and the authority of any parties signing this Lease to act
for Tenant.
perform any covenant, term or condition of this Lease upon Landlord’s part to be
performed, and, as a consequence of such default, Tenant shall recover a money
judgment against Landlord, such judgment shall be satisfied solely out of the
proceeds of sale received upon execution of such judgment levied thereon against
the right, title and interest of Landlord in the Building as the same may then
be encumbered; and neither Landlord nor, if Landlord be a partnership, any of
the partners comprising Landlord shall have any personal liability for any
any property of Landlord other than its interest in the Building as hereinbefore
expressly provided.
(d) Nature and Extent of Agreement. This Lease, together with all
exhibits hereto, contains the complete agreement of the parties concerning the
subject matter, and there are no oral or written understandings,
representations, or agreements pertaining thereto which have not been
incorporated herein. This Lease creates only the relationship of Landlord and
Tenant between the parties, and nothing herein shall impose upon either party
any powers, obligations or restrictions not expressed herein. This Lease shall
be construed and governed by the laws of the state in which the Premises are
located.
assigns. This Lease shall not be binding on Landlord until executed by an
authorized representative of Landlord and delivered to Tenant. No amendment or
modification to this Lease shall be binding upon Landlord unless same is in
writing and executed by an authorized representative of Landlord.
are for convenience and reference only, and they shall in no way be held to
explain, modify, or construe the meaning of the terms of this Lease.
(i) Lease Review. The submission of this Lease to Tenant for review
does not constitute a reservation of or option for the Premises, and this Lease
shall become effective as a contract only upon execution and delivery by
Landlord and Tenant.
34. SEVERABILITY. If any term or provision of this Lease or the
extent permitted by law notwithstanding the invalidity of any other term or
provision hereof.
35. REVIEW OF DOCUMENTS. If, following the execution of this Lease,
either party hereto requests that the other party execute any document or
instrument that is other than (i) a document or instrument the form of which is
attached hereto as an exhibit, or (ii) a document that solely sets forth facts
or circumstances that are then existing and reasonably ascertainable by the
requested party with respect to this Lease (e.g., an estoppel certificate), then
the party making such request shall be responsible for paying the out-of-pocket
costs and expenses, including without limitation, the attorneys fees, incurred
by the requested party in connection with the review (and, if applicable, the
requested party. In the event the requesting party is Tenant, all such costs
and expenses incurred by Landlord in connection with its review and negotiation
due hereunder and shall be payable by Tenant promptly upon demand.
36. SPECIAL STIPULATIONS. (Special stipulations shall control if in
conflict with any of the foregoing provisions of this Lease.) See Exhibit ”E”
written.
“LANDLORD”
3915 SHOPTON ROAD, LLC,
By:
/s/ Paul L. Herndon
Name: Paul L. Herndon
Title: Vice President
“TENANT”
SHUTTERFLY, INC., a Delaware corporation
By:
Name: Stephen E. Recht
EXHIBIT “A”
LEGAL DESCRIPTION OF BUILDING SITE
3915 Shopton Road, LLC
Lot 4, Shopton Ridge Business Park, Phase 1 Map 2
6.3152 Acres
Being a parcel or tract of land located in the City of Charlotte, Mecklenburg
BEGINNING at an existing iron rod in the center of a 60’ ingress and egress
easement and at the southwestern corner of Lot 3 Shopton Ridge, LLC property as
recorded in DB. 17877, Pg. 944 at the Mecklenburg County Register of Deeds said
iron being furthermore located South 80° 34' 16" East 4,696.40 feet (ground
distance) from North Carolina Geodetic Survey control monument “Shopton” (State
Plane Grid Coordinates: N: 523,015.0629, E: 1,413,721.9954) thence from said
POINT OF BEGINNING and with the northern line of Lots 6 and 7 Shopton Ridge
Business Park, Phase 1, Map 2 as recorded in MB. 42, Pg. 915 at the Mecklenburg
County Register of Deeds; Thence, N 88° 53' 05" W for a distance of 674.08 feet
to an existing iron pin at the southeastern corner of Lot 5 Shopton Ridge
County Register of Deeds, thence with the eastern line of the aforesaid property
N 01° 06' 55" E for a distance of 408.27 feet to an existing iron pin on the
southern right of way line of Shopton Road (variable public right of way),
thence with the aforesaid right of way line the following five (5) courses: 1) S
89° 04' 13" E for a distance of 100.97 feet to a point, 2) S 88° 36' 45" E for a
distance of 196.31 feet to a point, 3) S 89° 01' 10" E for a distance of 196.85
feet to a point, 4)S 88° 49' 27" E for a distance of 107.74 feet to a point, 5)
S 88° 55' 16" E for a distance of 72.22 feet to an existing iron rod at the
northwestern corner of Lot 3 Shopton Ridge, LLC property as recorded in DB.
17877, Pg. 944 at the Mecklenburg County Register of Deeds, thence with the
western line of the aforesaid property S 01° 06' 55" W a distance of 408.07 feet
to the POINT OF BEGINNING; containing 275,090 square feet or 6.3152 acres as
shown on a survey by R. B. Pharr & Associates, P.A., dated May 3, 2006 (Map File
W-3325).
EXHIBIT “B”
INTENTIONALLY DELETED
EXHIBIT “C”
UPFIT OF PREMISES
1. LANDLORD’S WORK
Landlord, at Tenant’s sole cost and expense (except as provided in paragraph 2
of this Exhibit ”C”) shall construct all improvements to the Premises which
constitute a part of Landlord’s Work (collectively, the “Improvements”) in a
good and workmanlike manner and in accordance with the Final Plans and
Specifications (as hereinafter defined) and all applicable Legal
Requirements. “Landlord’s Work” shall mean that certain work related to
Tenant’s occupancy of the Premises which shall be mutually agreed upon by
Landlord and Tenant. Tenant shall submit to Landlord the proposed floor plan
(including description of Landlord’s Work) on or before December 26,
2006. Landlord shall within five (5) business days from receipt deliver to
Tenant, in writing, either approval of the floor plan or detailed comments on
any changes reasonably necessary. If Landlord responds within such five (5)
business day period, Tenant shall be responsible for obtaining such changes to
the floor plan as may be agreed upon by the parties and resubmitting for
written approval. If Landlord fails to respond during such five (5) business
day period (the “Initial Floor Plan Response Period”), Landlord shall
automatically be deemed to have approved the initial floor plan. The final
floor plan, as approved (or deemed approved) by both Landlord and Tenant, is
herein referred to as the “Initial Floor Plan”. If Landlord and Tenant cannot
mutually agree upon the Initial Floor Plan on or before January 15, 2007 (the
“Initial Floor Plan Approval Deadline Date”), Landlord or Tenant shall have the
option, to terminate the Lease.
For purposes of this Lease, Landlord’s Work shall be deemed “substantially
complete” when (i) Landlord has completed Landlord’s Work except for punchlist
items which do not prevent or materially impair Tenant’s use or occupancy of the
Premises, (ii) Tenant can occupy the Premises for the purpose of carrying on its
intended business therein, and (iii) Landlord has procured a temporary or
permanent certificate of occupancy for the Premises, which shall allow Tenant to
operate its business within the Premises. Landlord represents and warrants that
the Building has been constructed in (i) a good and workmanlike manner, (ii) in
accordance with applicable Legal Requirements, and (iii) in accordance with
Landlord’s base building shell specifications per the architectural drawings
dated February 21, 2006 prepared by Merriman Schmitt which have been approved by
both Tenant and Landlord (the “Base Building”).
Notwithstanding anything contained herein to the contrary, Tenant (and not
Landlord) shall be solely responsible for any increases in the cost of
Landlord’s Work which are attributable to (i) any change orders requested by
Tenant to the Final Plans and Specifications which are agreed to between
Landlord and Tenant and/or (ii) any Tenant Delay Factors (as described in
Paragraph 4 of the Lease). Such cost increases (subject to application of the
Improvements Allowance and Additional Tenant Improvement Allowance, each as
hereinafter defined) shall be payable by Tenant to Landlord within 30 days of
Landlord shall have the final plans and specifications (the “Final Plans and
Specifications”) for Landlord’s Work prepared, based upon the Initial Floor
Plan, and delivered to Tenant for its review and approval (which approval shall
not be unreasonably withheld) on or before January 22, 2007. Such review and
approval by Tenant of the Final Plans and Specifications shall be limited solely
to those specific items that do not materially conform to the Initial Floor
Plan. Tenant, acting reasonably and in good faith, shall have seven (7) days
from Landlord’s delivery of the Final Plans and Specifications to advise
Landlord, in writing, as to whether or not Tenant desires any changes to the
Final Plans and Specifications. If Tenant fails to respond during such seven
(7) day period (the “Response Period”), Tenant shall automatically be deemed to
have approved the Final Plans and Specifications. If Landlord and Tenant cannot
mutually agree upon the Final Plans and Specifications on or before January 30,
2007 (the “Final Plans Approval Deadline Date”), Landlord or Tenant shall have
the option, to terminate the Lease.
Within seven (7) business days after the Final Plans and Specifications have
been finally approved (or deemed approved) by Tenant, Landlord shall submit the
Final Plans and Specifications to the contractors for bidding purposes in
accordance with the provisions set forth below. In the essence of time,
Landlord shall hire DSS Corporation as the general contract for Landlord
Work. DSS Corporation agrees to competitively bid the work to all
subcontractors and open-book all bids for Tenant and Landlord review and
selection. DSS Corporation shall receive a “cost plus 5%” fee. Tenant shall
have the opportunity to review and provide input concerning the subcontractor
bids, which Tenant agrees to do in a timely and good faith manner.
Tenant acknowledges and agrees that Tenant Delay Factors, as defined in
paragraph 4 of the Lease, shall include, without limitation, any delays
resulting from (i) change orders to the Final Plans and Specifications requested
by Tenant or by those acting for or under the direction of Tenant; (ii) the
performance or completion by Tenant, or any entity or person employed by Tenant,
of any work in or about the Premises or (iii) the failure of Landlord and Tenant
to agree on the Final Plans and Specifications on or before the Final Plans
Approval Deadline Date, provided that in each such instance Landlord first gives
Tenant two (2) business days notice that if Tenant does not so cure its act or
omission the same will thereafter be considered a Tenant Delay Factor.
.
Except to the extent expressly provided in the Lease, Landlord shall have no
liability or obligation whatsoever to remedy, replace or correct any alleged
defects and deficiencies in Landlord’s Work; provided, however, that Landlord
specifically warrants that (i) all loading doors will be properly operational
for three (3) months after the Commencement Date, absent any negligence of
Tenant, and (ii) Landlord shall throughout the term of this Lease (as same may
be extended) be responsible for repairing any latent defects in the Improvements
at Landlord’s sole cost. Landlord shall, to the extent permitted by law, assign
all warranties associated with the Premises to, and cooperate with, Tenant in
the enforcement of any express warranties or guarantees of workmanship or
materials given by any contractors, subcontractors, architects, draftsmen, or
materialmen relative to Landlord’s Work, the roof or any relevant Building
systems. Notwithstanding anything to the contrary contained herein or in the
Lease, Landlord shall not be responsible, to any extent whatsoever, for the
repair, remediation or correction of any alleged deficiencies or defects in any
materials and workmanship in and concerning Landlord’s Work to the extent that
the existence or occurrence of such defects or deficiencies are the result of,
or due to, any negligent, willful or intentional or other acts or omissions of
Tenant, its agents, employees, contractors, subcontractors, representatives or
invitees. Tenant may not conduct any activities on the Premises that would have
the effect of rendering any relevant warranties related to the performance of
Landlord’s Work void (unless previously approved by the Landlord), and if Tenant
does conduct any such activities and renders any relevant warranty void,
Landlord will no longer have any obligations under the terms of the Lease with
respect to the component, element or feature of the Improvements that the
warranty voided by Tenant’s activities had previously covered. Except as
otherwise provided in this Lease, at no time during the Lease term (as same may
be extended pursuant to any renewal option, if any) shall Tenant have any right,
of any nature whatsoever, to withhold the timely payment of any rental due under
the Lease as a result of, or due to, or because of, any alleged breaches by
Landlord under the Lease or the alleged existence of any defects or deficiencies
in the Improvements.
Landlord shall obtain all applicable licenses, permits and approvals to complete
the Tenant Improvements in accordance with all applicable laws.
Landlord shall give Tenant estimates of the schedule for completion of the
Improvements and thirty (30) days prior written notice of the anticipated date
the Premises will be ready for occupancy. Within thirty (30) days following the
Commencement Date, Landlord and Tenant shall mutually conduct a walk-through of
the Premises and compile a punch list which sets forth any corrective work to be
performed by Landlord with respect to the Improvements which Landlord, upon
receipt, shall diligently pursue to correct.
Landlord represents and warrants to Tenant that as of the Commencement Date:
(i) the Premises, including the HVAC, electrical, mechanical,
plumbing, sewer and other systems serving the Premises, shall be in good working
order;
(ii) the Improvements and the Building shall not violate any covenants
or restrictions of record (if any), or any applicable Legal Requirements having
jurisdiction over the Project, and
(iii) Landlord shall deliver the Premises to Tenant clean and free of
debris.
Except as provided in Section 5(c) of the Lease, Tenant shall have no obligation
to restore the Premises to their original condition as of the Commencement Date
upon lease termination or expiration of the Lease.
Landlord agrees that there shall be no construction management fee payable by
Tenant to Landlord to oversee the construction of the Improvements.
2. IMPROVEMENTS ALLOWANCE
Notwithstanding anything to the contrary herein, Landlord shall contribute an
amount (such amount being the “Improvements Allowance”) not to exceed $16.00 per
rentable square foot of the Premises ($1,638,400.00 based on the rentable square
footage of 102,400) towards the costs incurred by Landlord and/or Tenant in
designing, planning and constructing the Improvements. In the event the costs
incurred in connection with designing, planning and constructing the
Improvements exceed the Improvements Allowance (subject to application of the
Additional Tenant Improvement Allowance, as hereinafter defined), Tenant shall
be solely responsible for bearing and paying any such excess costs within thirty
(30) days of Landlord’s written demand therefor. In the event the costs
incurred by Landlord and/or Tenant in connection with designing, planning and
constructing the Improvements are less than the Improvements Allowance, Tenant
shall provide Landlord with written notice prior to August 31, 2007 which may
direct Landlord to pay such excess amounts directly to Tenant’s
contractor/vendors for additional improvements to the Premises conducted by or
for Tenant, or apply such excess amounts against the Minimum Rental payment(s)
next due from Tenant until such excess amounts have been exhausted. Without
limiting the foregoing, Landlord acknowledges that “the costs incurred by
Landlord and/or Tenant in designing, planning and construction the Improvements”
shall be deemed to include the cost to obtain any and all (i) operating
permit(s) that Tenant may be required to obtain (if any) in order for Tenant to
operate for Tenant’s permitted use as described in Article 6(a) of this Lease;
(ii) construction permits (including costs associated with any “express review”
process); (iii) space planning; (iv) construction documents; (v) upfit costs;
and (vi) any additional costs associated with the upfit.
3. ADDITIONAL TENANT IMPROVEMENT ALLOWANCE
Upon written request to Landlord, Landlord agrees to provide Tenant with an
additional improvement allowance up to a maximum of $250,000.00 (the “Additional
Tenant Improvement Allowance”) to be used by Tenant for additional improvements
to the Premises, and/or furniture, fixtures or equipment for the Premises. Any
such elected Additional Tenant Improvement Allowance shall be amortized over the
entire eighty-nine (89) month term at an annual interest rate of ten percent
(10%) and paid by Tenant as part of the Minimum Rent due under the
Lease. Landlord and Tenant shall amend this Lease as necessary to reflect such
increased rent obligation.
EXHIBIT “D”
RULES AND REGULATIONS
1.
Restricted Uses. Neither the Premises nor any part of the common areas of the
Building or the Business Park shall be used by Tenant for any one or more of the
following uses:
(a)
Agriculture or any related use, including any roadside stand for the display and
sale of agricultural products and any use which involves the raising, breeding,
or keeping of any animals or poultry;
(b)
Processing or slaughter of livestock, swine, poultry or other animals;
(c)
Manufacture of leather goods;
(d)
Manufacture of explosives or explosive agents;
(e)
Manufacture, sale, rental, repair or storage of heavy equipment, buses, trucks,
trailers, automobiles, recreational vehicles and mobile or trailer homes;
(f)
Unscreened outdoor storage, outdoor fabrication or outdoor handling of any
machinery, parts, material, supplies or products;
(g)
Residential uses;
(h)
Overnight parking of campers, mobile homes, boats, trailers or motor homes;
(i)
Erecting and maintaining structures of a temporary nature, except that during
the period of construction of improvements to the Premises, Tenant’s contractors
or subcontractors may be permitted to erect or maintain such temporary
structures upon Landlord’s prior written approval;
(j)
Jails, prisons, labor camps, penal, detention or correction facilities or farms;
(k)
Cemeteries or mausoleums;
(l) Mining, including the extraction, processing and removal of sand,
gravel, stone, minerals or clay, except for substances used in connection with
Tenant’s photo-developing and merchandising processes and services provided such
chemicals and other substances are brought into the Premises, used, stored and
disposed of in accordance with all Legal Requirements and Environmental Laws;
(m)
Any land fills, any hazardous waste disposal or storage facilities and any
incinerators;
(n)
Racetracks, raceways and drag strips; and
(o)
Massage parlors, topless night clubs or similar business operations.
(p)
Fast food restaurants;
(q)
Airports, heliports or helistops, bus or train terminals;
(r)
Hotels or motels;
(s)
Rest stops, rest stations or service stations;
(t)
Flea markets;
(u)
Stadiums;
(v)
Adult care centers;
(x)
Cinemas or movie theaters;
(y)
Night Clubs or bars; and
(z)
Amusement parks, amusement galleries, arcades or turkey shoots.
2.
Nuisances. Tenant shall not cause any unclean, unhealthy, unsightly or unkempt
condition to exist in the Premises or in the common areas of the Building or the
Business Park. Tenant shall not use the Premises or any portion of the common
areas of the Building or the Business Park, in whole or in part, for the
deposit, storage or burial of any property or thing that will cause the
above-mentioned areas to appear to be in an unclean or untidy condition or that
will be obnoxious to the eye; nor shall Tenant allow any substance, thing, or
material to be kept, utilized or carried out in the Premises or the common areas
of the Building or the Business Park that will emit foul or obnoxious odors,
fumes, smoke or dust or that will cause any vibration or noise or other
condition that will or might disturb the peace, quiet, safety, comfort, or
serenity of the occupants of the Building or the Business Park in excess of what
is commercially reasonable . No noxious, offensive or illegal trade or activity
shall be carried out in the Premises or in the common areas of the Building or
the Business Park.
3.
Restricted Actions on Common Areas of the Building and the Business
Park. Tenant shall not cause or allow any cutting of vegetation, dumping,
digging, filling, destruction or other waste to be committed on the common areas
of the Building or the Business Park. Tenant shall not cause any obstruction of,
or allow or cause anything to be kept or stored on, altered, constructed or
planted in, or removed from the common areas of the Building or the Business
Park, without Landlord’s prior written consent.
4.
Sign Display. Subject to the provisions set forth in Article 16 of the Lease,
(i) all signage will be coordinated by Landlord throughout the Business Park for
uniformity and attractiveness, (ii) the size, shape, design, lighting, materials
and location of all signs shall conform to the uniform signage plan for the
Business Park, and (iii) Tenant shall not cause any sign, tag, label, picture,
advertisement or notice to be displayed, distributed, inscribed, painted or
affixed by Tenant on any part of the Building, the Business Park or the Premises
5.
Drives and Parking Areas. Subject to the provisions set forth in paragraph 6 of
Exhibit E to this Lease, (i) all parking shall be within marked parking spaces,
(ii) there shall be no on-street parking and at no time shall Tenant obstruct
drives and loading areas intended for the joint use of all tenants of the
Building, (iii) the drives and parking areas in the Business Park are for the
joint use of all tenants of the Business Park unless specifically marked, (iv)
Truck traffic and parking will be restricted to areas designated by Landlord,
(v) Tenant, its employees, agents and invitees shall comply with reasonable
parking rules and regulations as they may be posed and distributed from time to
time, and (vi) Tenant is responsible for controlling all of its truck traffic
in accordance with the restrictions and regulations imposed by Landlord.
6.
Storage and Trash Disposal. No materials, supplies or equipment belonging to
Tenant shall be stored in any area of the Building or the Business Park, except
inside the Premises. Trash disposal is confined to the receptacles provided by
Tenant in a location approved by Landlord and no trash receptacles may be placed
in any other location in the Premises, in the Building or in the Business Park
7.
Locks. No additional locks shall be placed on the doors of the Premises by
Tenant. If Tenant changes any existing locks, Tenant shall immediately furnish
Landlord with two keys to such new locks. Landlord will, without charge,
furnish Tenant with two keys for each lock existing upon the entrance door when
Tenant assumes possession of the Premises, with the understanding that, at the
termination of the Lease, the keys shall be returned.
8.
Improvements, Contractors and Service Maintenance. Subject to the provisions
set forth in Article 5 of the Lease, (i) Tenant shall not make any improvements
to the exterior of the Building or the Business Park and Tenant shall not make
any structural changes or other material alterations, additions or improvements
to the Premises without the prior written consent of Landlord, which such
approval shall not be unreasonably withheld, (ii) Tenant will refer all of
Tenant’s contractors, contractors’ representatives and installation technicians
rendering any service on or to the Premises to Landlord for Landlord’s approval
and supervision before performance of any service, and (iii) this provision
shall apply to all work performed in the Premises, including installation of
electrical devices and attachments and installations of any nature affecting
physical portion of the Premises, the Building or the Business Park
9.
Regulations for Operation and Use. Except as permitted in this Lease, Tenant
shall not place, install or operate in the Premises or in any part of the
Building or the Business Park any engine, stove or machinery, nor shall Tenant
conduct any mechanical or cooking operations therein, nor place or use in or
about the Premises or any part of the Building or the Business Park any
explosives, gasoline, kerosene, oil, acids, caustics or any other flammable,
explosive or hazardous material, without the prior written consent of Landlord.
10.
Window Coverings. Windows facing the Building exterior shall at all times be
wholly clear and uncovered (except for such blinds or curtains or other window
coverings as Landlord may provide or approve) so that a full unobstructed view
of the interior of the Premises may be had from the exterior of the Building.
11.
No Violations of Fire Laws or Health Code. Tenant shall not do or permit
anything to be done in the Premises, or bring or keep anything therein, which
will obstruct or interfere with the rights of other tenants in the Building or
the Business Park or in any other way injure them or conflict with any laws
relating to fires, or with any regulations of the Fire Department or with any
insurance policy upon the Building or the Business Park, or any part thereof, or
conflict with any of the rules and ordinances of the Board of Health.
12.
No Violations of Laws. Tenant shall promptly and at its expense execute and
comply with all laws, rules, orders, ordinances, including all applicable zoning
ordinances, and regulations of the City, County, State or Federal Government,
and of any department or bureau of any of them and of any other governmental
authority having jurisdiction over the Premises, to the extent necessary by
reason of Tenant’s particular use or occupancy of the Premises or Tenant’s
business conducted therein. Landlord hereby represents and warrants that
Tenant’s intended use of the Premises (as set forth in Section 6(a) of the
Lease) is permitted as of right under the applicable zoning code.
13.
No Use of Roof. Neither Tenant, nor Tenant’s servants, employees or agents
shall go upon the roof of the Building without the written consent of Landlord
unless necessary for Tenant to exercise any of its rights under Section 9(b) of
the Lease.
14.
No Canvassing. Canvassing, soliciting and peddling in and about the Building
and the Business Park is prohibited.
15.
No Loud Musical Devices. Tenant shall not operate or permit to be operated any
which may be heard outside the Premises or by other tenants in the Building or
the Business Park in excess of what is commercially reasonable.
16.
Use of Washrooms. Tenant shall not use the washrooms, restrooms, and plumbing
fixtures of the Premises or the Building, and appurtenances thereto, for any
purposes other than the purposes for which they were constructed, and Tenant
shall not deposit any sweepings, rubbish, rags, or other improper substances
therein. If Tenant or Tenant’s servants, employees, agents, contractors,
jobbers, licensees, invitees, guests or visitors cause any damage to such
washrooms, restrooms, plumbing fixtures or appurtenances, such damage shall be
repaired, at Tenant’s expense, and Landlord shall not be responsible therefor.
17.
No Unpleasant Odors. Tenant shall not cause or permit any unpleasant odors to
emanate from the Premises, or otherwise interfere, injure or annoy in any way
other tenants in the Building or the Business Park, or persons conducting
business with them in excess of what is commercially reasonable.
18.
Disposal of Crates. When conditions are such that Tenant must dispose of
crates, boxes, etc. on the sidewalk or parking areas on the Land, it will be the
responsibility of Tenant to dispose of same only between the hours of 5:45 p.m.
until 7:15 a.m unless other times are approved by the Landlord.
19.
No Food Distribution. No prepared food and/or beverages shall be distributed
from the Premises, but, notwithstanding the provisions of Paragraph 9 hereof or
this Paragraph 19, Tenant may prepare coffee and similar beverages and warm
typical luncheon items for the consumption of Tenant’s employees and invitees.
20.
Location of Improvements. Tenant will not locate furnishings or cabinets
adjacent to mechanical or electrical access panels or over air conditioning
outlets in the Premises so as to prevent operating personnel from servicing such
units as routine or emergency access may require. Tenant shall be responsible
for any cost associated with moving such furnishings for Landlord’s access to
such mechanical or electrical access panels or air conditioning outlets.
21.
Modifications. Landlord shall have the right from time to time to make any and
all such reasonable modifications and additions to these Rules and Regulations
as may be necessary for the safety, care, quiet enjoyment and cleanliness of the
Building and the Business Park. Tenant agrees to abide by these Rules and
Regulations and any reasonable modifications and additions as are hereafter
adopted by Landlord, including, but not limited to, modifications made by
Landlord as a result of any changes in the city zoning ordinance, provided same
operation of Tenant’s business
EXHIBIT “E”
SPECIAL PROVISIONS
1. Moving Allowance. Landlord agrees to provide Tenant with a moving
allowance of $0.50 per rentable square foot (“Moving Allowance”) to be paid to
Tenant upon receipt of paid moving expenses in connection with Tenant moving its
personal property from its existing leased space to the Premises. This Moving
Allowance may also be used for the Improvements, cabling and furnishing the
Premises. Any unused Moving Allowance shall be credited to Tenant’s monthly
Minimum Rental payments next due until such unused Moving Allowance has been
exhausted.
2. Renewal Option. So long as Tenant is not in default under this
Lease beyond any applicable cure period, Tenant is hereby granted the option to
renew the term of the Lease as to the entire Premises for three (3) additional
periods (“Renewal Term”) of either three (3) or five (5) years in length, as
Tenant may elect, to commence at the expiration of the initial Term or each then
current Renewal Term. Any such renewal of this Lease shall be upon the same
terms and conditions of this Lease, except there shall be one less renewal
option in each Term and the annual Minimum Rental during the Renewal Term shall
be at the then prevailing Market Rate (as defined below) for comparable
buildings in Charlotte, North Carolina.
The “Market Rate” means the rental rate which Landlord and a third party tenant
would agree upon for a new lease, as of the commencement date of such Renewal
Term, taking into consideration the uses permitted under the Lease, the quality,
size, design and location of the Premises, which shall exclude any specialized
improvements added by the Tenant, and the rental for a new lease for comparable
space located in the vicinity. The Market Rate shall include any tenant
improvements, moving allowances, tenant improvement allowances, abatement of
rentals, leasing commissions or other concessions that are then being offered by
Landlord or other property owners for space comparable to the Premises.
Tenant shall notify Landlord of its intent to renew by delivering written notice
to Landlord at least ten (10) months prior to the expiration of the initial
Term, or then current Renewal Term, with Tenant’s election of the length of each
such Renewal Term. Landlord and Tenant shall then mutually determine the
applicable Minimum Rental which will apply to such Renewal Term within thirty
(30) days after Tenant’s intent notification or such additional time as
necessary. Tenant shall then exercise its option to renew, if at all, by
delivering written notice to Landlord six (6) months prior to the expiration of
the initial Term, or then current Renewal Term (provided, however, that in no
event shall Tenant be given less than thirty (30) days after the Minimum Rental
has been agreed upon in which to exercise said option), which such renewal shall
be for the length time stated in Tenant’s intent notice and for the Minimum
Rental mutually determined by Landlord and Tenant during the preceding month.
3. Termination Option. Tenant shall have the right to terminate this
lease (“Termination Right”) with at least six (6) months’ prior written notice
to Landlord at the end of the fifth (5th) year of the term. Tenant must
exercise this Termination Right, if at all, within thirty (30) days after the
last day of the fifth lease year. Prior to the effective date of such
termination, Tenant shall pay to Landlord an amount equal to Landlord’s
unamortized costs for this transaction (including, but not limited to, Tenant
Improvement Allowance, Additional Tenant Improvement Allowance, moving
allowance, brokers fees, and attorney’s fee) plus all amounts needed to cure
then existing monetary defaults, if any.
4. Rights of First Refusal. So long as Tenant is not in default of
this Lease beyond applicable cure periods and Tenant has not exercised its
option set forth in paragraph 5 of this Exhibit “E”, and subject to any and all
prior rights of first refusal granted for space in the Building as of the date
of this Lease, in the event any premises in the to-be-built adjacent Shopton
18-C building (“Building 18-C”) which is owned by an affiliate of Landlord
becomes available for rent, Landlord shall so notify Tenant. Thereupon, Tenant
shall, for a period of ten (10) business days following receipt of such notice,
have a right and option to lease such premises at Market Rent and terms for the
intended use for the remainder of the term of this Lease (as may be
extended). Upon addition of space to the Premises pursuant to the exercise by
Tenant of its option hereunder, Landlord and Tenant shall execute and deliver an
amendment to this Lease confirming the same (or, at Tenant’s option, enter into
a separate lease for such premises). Notwithstanding anything in this Lease to
the contrary, the right of first refusal granted to Tenant pursuant to this
paragraph (i) is not applicable during the final twelve (12) months of the
initial Term or any Renewal Term, unless Tenant has exercised its next Renewal
Term, if any, in accordance with this Lease, and (ii) shall have no impact on
Tenant’s right to exercise its Termination Right for the Premises in accordance
with paragraph 3 of this Exhibit “E” (it being understood and agreed that Tenant
shall also terminate the lease for Building 18-C at the same time as the
Premises, if at all, by reimbursing Landlord for all unamortized costs for the
Building 18-C transaction (as described in paragraph 3 of this Exhibit “E”).
5. Right of First Refusal on Building 18-C (50,000 square feet
minimum). So long as Tenant is not in default of this Lease beyond applicable
cure periods, Tenant shall have the option of leasing a minimum of 50,000 square
feet in Building 18-C from its owner, which is an affiliate of Landlord. Tenant
must exercise such right, if at all, by providing written notice to Landlord on
or before the date which is three (3) months from the date that Tenant receives
notice from Landlord of the completion of the Building 18-C shell. The terms
and conditions of any lease in Building18-C shall be on the same terms and
conditions as this Lease (including, without limitation, eight (8) months free
Annual Rental), as may be adjusted based on the actual square footage leased
(i.e. the rental rate and improvement allowance shall be the same per square
foot, but will be adjusted if the lease for Building 18-C is not for 102,400
square feet). In the event any such lease is executed for space in Building
18-C (the “18-C Lease”), the Term of this Lease shall be amended to be a full
eighty-nine (89) months from the commencement date of the new 18-C Lease (at the
same 3% annual increases in Minimum Rent) such that both leases are coterminous.
Notwithstanding anything in this Lease to the contrary, the right of first
refusal granted to Tenant pursuant to this paragraph (i) is not applicable
during the final twelve (12) months of the initial Term or any Renewal Term,
unless Tenant has exercised its next Renewal Term, if any, in accordance with
this Lease, and (ii) shall have no impact on Tenant’s right to exercise its
Termination Right for the Premises in accordance with paragraph 3 of this
Exhibit “E” (it being understood and agreed that Tenant shall also have the
right to terminate the lease for Building 18-C at the same time as the Premises
by reimbursing Landlord for all unamortized costs for the Building 18-C
6. Right of First Refusal on Building 18-D (25,000 square feet
cure periods and subject to any and all prior rights of first refusal granted
for space in the Building as of the date of this Lease, in the event any
premises containing at least 25,000 square feet in the to-be-built Shopton 18-D
building (“Building 18-D”) which is owned by an affiliate of Landlord becomes
available for rent, Landlord shall so notify Tenant. Thereupon, Tenant shall,
for a period of ten (10) business days following receipt of such notice, have a
into a separate lease for such premises) . Notwithstanding anything in this
Lease to the contrary, the right of first refusal granted to Tenant pursuant to
this paragraph (i) is applicable at all times during the initial Term (and any
Renewal Term), but is not applicable during the final twelve (12) months of the
initial Term or any Renewal Term unless Tenant has exercised its next Renewal
shall also have the right to terminate the lease for Building 18-D at the same
time as the Premises by reimbursing Landlord for all unamortized costs for the
Building 18-D transaction (as described in paragraph 3 of this Exhibit “E”).
7. Parking. During the term of this Lease (as same may be extended),
Tenant shall have the right to park vehicles in a minimum of 390 unreserved
parking stalls on the property known as Shopton 18B, as reflected on Exhibit
“E-1”, which Exhibit “E-1” shall subsequently be attached hereto after agreed to
by Landlord and Tenant. Landlord acknowledges that it will work with Tenant to
provide extra parking areas in the rear of the Premises, or work with Tenant to
find a suitable solution such as cross-parking with the adjacent buildings, in
the event there are any parking problems during the term of the Lease to ensure
that Tenant has a minimum of 390 parking stalls in the event Tenant uses some of
the above referenced 390 parking spaces as a truck court.
8. Contingency. Tenant’s obligations under this Lease are contingent
upon Tenant obtaining a Charlotte-Mecklenburg Business Investment Grant (the
“Grant”) from the City of Charlotte and County of Mecklenburg in an amount of at
least $450,000 within thirty (30) days from the date of this Lease (the
“Contingency”). If Tenant does not receive the Grant within such thirty (30)
day period, Tenant shall have the right to terminate this Lease by written
notice to Landlord, in which event this Lease shall be null and void, and
neither party shall have any further rights or obligations to the other.
9. Access. Tenant shall have access to the Premises and Building 24
10. Street Name. Upon written request from Tenant, and subject to all
necessary approvals from the City of Charlotte and County of Mecklenburg,
Landlord agrees to promptly (re)name the interior street immediately abutting
the Building to be “Shutterfly Road”, “Shutterfly Street” or other similar name
(containing the word “Shutterfly”) to be agreed upon by Landlord and Tenant.
11. Environmental Matters.
(a) Definitions. For purposes of this Lease:
(1) The term "Environmental Law" shall mean and refer to the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), 42
U.S.C. §9601, et seq.; the Federal Resource Conservation and Recovery Act of
1976 ("RCRA"), 42 U.S.C. §6901, et seq.; the Federal Water Pollution Control
Act, 33 U.S.C. §1251, et seq.; the Clean Air Act, 42 U.S.C. §7401, et seq.; all
county, municipal, local or other statute, law, ordinance or regulation which
relates to or deals with human health or the environment, including, without
limitation, all regulations promulgated by a regulatory body pursuant to any
such statute, law, ordinance or regulation.
(2) The terms "Hazardous Substance" and "Hazardous Substances" shall mean and
refer to asbestos, radon, urea-formaldehyde, polychlorinated biphenyls ("PCBs"),
or substances containing PCBs, nuclear fuel or materials, radioactive materials,
explosives, known carcinogens, petroleum products and bi-products, and any
substance defined as hazardous or toxic or as a contaminant or pollutant in, or
the release or disposal of which is regulated by any Environmental Law.
(b) Landlord's Representations and Warranties. Landlord represents that,
except as set forth in that certain “Report of Phase I Environmental Site
Assessment Update” dated May 15, 2006 prepared for Landlord by MACTEC:
(1) no Hazardous Substances are now or have ever been located, produced,
treated, stored, transported, incorporated, discharged, emitted, released,
deposited or disposed of in, upon, under, over or from the Building in violation
(2) no threats exist of a discharge, release or emission of Hazardous
Substances in, upon, under, over or from the Building into the environment in
(3) the Building has not ever been used as or for a mine, a landfill, a dump or
other disposal facility, industrial or manufacturing purposes, auto repair, a
dry cleaner, or a gasoline service station;
(4) neither the Building nor any part thereof is in violation of any
Environmental Law, no notice of any such violation or any alleged violation
thereof has ever been issued or given by any governmental entity or agency, and
there is not now nor has there ever been any investigation or report involving
the Building by any governmental entity or agency which is in any way related to
Hazardous Substances;
(5) no person, party or private or governmental agency or entity has given any
notice of or asserted any claim, cause of action, penalty, cost or demand for
payment or compensation, directly or indirectly, resulting from or allegedly
resulting from any activity or event described in (1), (2) or (4) above;
(6) there are not now, nor have there ever been, any actions, suits,
proceedings or damage settlements relating in any way to Hazardous Substances
in, upon, under, over or from the Building;
(7) the Building is not listed in the United States Environmental Protection
Agency's National Priorities List of Hazardous Waste Sites, CERCLIS, or any
other list of hazardous sites maintained by any federal, state or local
governmental agency;
(8) the Building is subject to no lien or claim for lien in favor of any
governmental entity or agency as a result of any release or threatened release
Parking
[TO BE ATTACHED AFTER LEASE EXECUTION ONCE AGREED TO BY PARTIES]
EXHIBIT “F”
TENANT: _________________________
PROJECT: _________________________
To: Landlord
Re: Lease Pertaining to ________________________ (the "Project")
Ladies and Gentlemen:
The undersigned, as tenant ("Tenant"), hereby states and declares as follows:
1. Tenant is the lessee under that certain lease (the "Lease")
pertaining to the Project which is dated _______.
2. The Lease is for the following portion of the Project
______________________________(the "Demised Premises") (if the entire Project,
so state):
3. The Lease has not been modified or amended except by the following
documents (if none, so state): _________
4. The initial term of the Lease commenced on _________, 2____ and
shall expire on ______, 2_____, unless sooner terminated in accordance with the
Very truly yours,
TENANT:
Shutterfly, Inc.,
a Delaware corporation
By ___________________________
Name: ________________________
Its: ___________________________
AGREED TO THIS ___ DAY OF ___, 200_:
LANDLORD:
By: ________________________
Name: _____________________
Its: ________________________
FIRST AMENDMENT TO LEASE
as of this 26th day of February 2007, by and between 3915 SHOPTON ROAD, LLC, a
North Carolina limited liability company (hereinafter referred to as
"Landlord"), and SHUTTERFLY, INC., a Delaware corporation (hereinafter referred
to as "Tenant").
RECITALS:
A. Landlord and Tenant have previously entered into that certain Lease
Agreement dated December 22, 2006 (the “Lease”) for the occupancy of
approximately 102,400 rentable square feet of space (the “Premises”) known as
building Shopton 18-B, in the Shopton Ridge Business Park, Charlotte, North
Carolina (the “Building”).
B. Landlord and Tenant desire to amend the Lease as hereinafter set forth.
of which are hereby acknowledged, Landlord and Tenant do hereby enter into this
First Amendment and amend the Lease as set forth below. All terms used but not
defined herein shall have the meanings set forth in the Lease.
1.
Commencement Date. The Commencement Date, which is defined in the first
sentence of Section 2 of the Lease, is hereby amended to mean “the later of May
30, 2007 or upon substantial completion of Phase I of Landlord’s Work, as
defined in Exhibit “C” attached to this First Amendment and made a part hereof.”
2.
Delivery of Possession. Section 4 of the Lease is hereby deleted in its
“Landlord will deliver the Premises to Tenant in phases beginning with Phase I
delivered on the Commencement Date, with Landlord’s Work for each Phase (as
defined in Paragraph 1 of Exhibit ”C” attached hereto) substantially completed
in accordance with the Final Plans and Specifications (as defined in paragraph 1
of said Exhibit ”C”), subject to revisions as mutually agreed to in writing by
Landlord and Tenant, as evidenced, if requested by Tenant, by the certification
of Landlord’s architect or other designated engineering representative. Tenant
shall be given access to the Premises upon written request to Landlord not more
than sixty (60) days prior to the Commencement Date, for the purposes of
preparing the Premises for Tenant’s use. With the exception of any Annual
Rental payments due, all terms and conditions of this Lease shall apply to
Tenant upon such occupancy. Tenant shall coordinate such occupancy with
Landlord and shall not interfere with Landlord’s completion of Landlord’s
Work. If Landlord for any reason whatsoever cannot substantially complete
Landlord’s Work and deliver possession of Phase I to Tenant on the Commencement
Date as above specified, this Lease shall not be void or voidable nor shall
that event (except to the extent that any such delay(s) has been caused by
Tenant or its agent(s), employee(s), contractor(s) or subcontractor(s)
(collectively, “Tenant Delay Factors”), and provided that in each such instance
Landlord first gives Tenant written notice that if Tenant does not so cure its
act or omission within two (2) business days the same will thereafter be
considered a Tenant Delay Factor, the Commencement Date shall be adjusted to be
the date when Landlord does in fact substantially complete Landlord’s Work and
deliver possession of Phase I to Tenant. Notwithstanding anything herein to the
contrary, in the event Landlord’s Work for Phase I is not complete by the date
(such date referred to herein as the “Delivery Date”) which is one hundred
twenty (120) days after approval (or deemed approval) by Landlord and Tenant of
the Final Phase I Plans and Specification (as hereinafter defined), except for
reasons of Tenant Delay Factors or force majeure (which force majeure delays
shall only be extended by up to 90 days), Tenant shall be granted three (3) days
of free Minimal Rental for every day beyond the Delivery Date until Landlord’s
Work for Phase I has been complete, and the Rent Commencement Date shall be
adjusted accordingly. In the event Landlord is unable to deliver the Premises
by September 30, 2007, Tenant may terminate this Lease with no further
obligation by providing Landlord written notice on or before October 10, 2007.”
3.
Upfit of the Premises. Exhibit “C” to the Lease, Upfit of the Premises, is
hereby deleted in its entirety and the revised Exhibit “C” attached hereto is
4.
Exhibit “E” to the Lease.
a. Section 5 of Exhibit “E” to the Lease is hereby deleted in its entirety and
“5. Right of First Refusal on Building 18-C (50,000 square feet
(“Landlord’s Affiliate”). Tenant must exercise such right, if at all, by
providing written notice to Landlord on or before the date which is three (3)
months from the date that Tenant receives notice from Landlord of the completion
of the Building 18-C shell. The terms and conditions of any lease in Building
18-C shall (i) be on the same terms and conditions as this Lease (including,
without limitation, eight (8) months free Annual Rental), as may be adjusted
based on the actual square footage leased (i.e. the rental rate and improvement
allowance shall be the same per square foot, but will be adjusted if the lease
for Building 18-C is not for 102,400 square feet), and (ii) (subject to approval
by Landlord, Landlord’s Affiliate, the applicable lenders for Landlord and
Landlord’s Affiliate and further subject to applicable Legal Requirements) give
Tenant the right, at Tenant’s sole cost and expense (subject to application of
the Improvements Allowance and the Additional Tenant Improvement Allowance, each
as hereinafter defined), to (a) block-off the back side of the driveway between
Building 18-C and Building 18-B and create an enclosed walkway between such
buildings as shown on Exhibit “E-2” attached hereto (the “Walkway”), and (b) lay
conduit between such buildings. Tenant acknowledges that it will be solely
responsible for all maintenance and repair of the Walkway and upon written
demand from Landlord must remove the same at the expiration or earlier
termination of the Lease and restore the parking lot to its condition prior to
installation of the Walkway. In the event any such lease is executed for space
be a full eighty-nine (89) months from the commencement date of the new 18-C
Lease (at the same 3% annual increases in Minimum Rent) such that both leases
are coterminous. Notwithstanding anything in this Lease to the contrary, the
right of first refusal granted to Tenant pursuant to this paragraph (i) is not
applicable during the final twelve (12) months of the initial Term or any
Renewal Term, unless Tenant has exercised its next Renewal Term, if any, in
exercise its Termination Right for the Premises in accordance with paragraph 3
the right to terminate the lease for Building 18-C at the same time as the
Premises by reimbursing Landlord for all unamortized costs for the Building 18-C
transaction (as described in paragraph 3 of this Exhibit “E”).”
b. Section 7 of Exhibit “E” to the Lease is hereby deleted in its
“7. Parking. During the term of this Lease (as same may be
extended), Tenant shall have the right to park vehicles in a minimum of 275
unreserved parking stalls on the property known as Shopton 18B, as reflected on
Exhibit “E-1” attached hereto. Landlord acknowledges that it will work with
Tenant to provide extra parking areas in the rear of the Premises, or work with
Tenant to find a suitable solution such as cross-parking with the adjacent
buildings, in the event that (i) there are any parking problems during the term
of the Lease, or (ii) Tenant anticipates a short-term increase in the number of
parking stalls required to support peak production periods, or (iii) Tenant
determines that it needs more than 275 parking spaces. Tenant acknowledges that
such 275 parking stalls will be available only until Tenant constructs the
Walkway, if at all, and subsequent to such Walkway construction, Tenant’s
parking stalls will be reduced beyond 275 stalls by the number lost for Tenant’s
Walkway.”
c. Section 8 (Contingency) of Exhibit “E” to the Lease is hereby
5.
Ratification. Except as modified and amended by this First Amendment, all terms
LANDLORD:
By: /s/Paul Herndon
Name: Paul Herndon
Title: Vice President
TENANT:
SHUTTERFLY, INC.,
a Delaware corporation
By: /s/Stephen E. Recht
EXHIBIT “C”
Upfit of Premises
1. LANDLORD’S WORK
Landlord and Tenant. Tenant acknowledges that Landlord’s Work shall proceed in
multiple phases (each a “Phase”). Tenant has not yet completed final design
plans for all Phases. Landlord and Tenant shall mutually decide upon the scope
and completion date(s) for each of the Phases.
For purposes of this Lease, Landlord’s Work for each Phase shall be deemed
“substantially complete” when (i) Landlord has completed Landlord’s Work for
such Phase except for punchlist items which do not prevent or materially impair
Tenant’s use or occupancy of such Phase, (ii) Tenant can occupy the completed
Phase for the purpose of carrying on its intended business therein, and (iii)
Landlord has procured a temporary or permanent certificate of occupancy for such
Phase, which shall allow Tenant to operate its business within the
Phase. Landlord represents and warrants that the Building has been constructed
in (a) a good and workmanlike manner, (b) in accordance with applicable Legal
Requirements, and (c) in accordance with Landlord’s base building shell
specifications per the architectural drawings dated February 21, 2006 prepared
by Merriman Schmitt which have been approved by both Tenant and Landlord (the
“Base Building”).
Landlord shall have the final plans and specifications prepared for Phase I of
Landlord’s Work (the “Final Phase I Plans and Specifications”) and delivered to
Tenant for its review and approval (which approval shall not be unreasonably
withheld) on or before March 13, 2007. Tenant, acting reasonably and in good
faith, shall have seven (7) days from Landlord’s delivery of the Final Phase I
Plans and Specifications to advise Landlord, in writing, as to whether or not
Tenant desires any changes to the Final Phase I Plans and Specifications. If
Tenant fails to respond during such seven (7) day period, Tenant shall
automatically be deemed to have approved the Final Phase I Plans and
Specifications. Landlord, acting reasonably and in good faith, shall have four
(4) business days from Tenant’s delivery of Tenant’s response to advise Tenant,
in writing, as to whether or not Landlord desires any changes to Tenant’s
proposed changes to the Final Phase I Plans and Specifications. If Landlord
fails to respond during such four (4) day period, Landlord shall automatically
be deemed to have approved Tenant’s proposed changes to the Final Phase I Plans
and Specifications.
Landlord, acting reasonably and in good faith, shall have seven (7) days from
Tenant’s delivery of the final plans and specifications for the Phases (other
than Phase I) of Landlord’s Work (the “Final Remaining Phases Plans and
Specifications”) to advise Tenant, in writing, as to whether or not Landlord
desires any changes to the Final Remaining Phases Plans and Specifications. If
Landlord fails to respond during such seven (7) day period, Landlord shall
automatically be deemed to have approved the Final Remaining Phases Plans and
Specifications. Tenant, acting reasonably and in good faith, shall have four
(4) business days from Landlord’s delivery of Landlord’s response to advise
Landlord’s proposed changes to the Final Remaining Phases Plans and
Specifications. If Tenant fails to respond during such four (4) business day
period, Tenant shall automatically be deemed to have approved Landlord’s
proposed changes to the Final Remaining Phases Plans and Specifications. Within
seven (7) business days after the Final Remaining Phases Plans and
Specifications have been finally approved (or deemed approved) by Landlord and
Tenant, Landlord shall submit such Final Remaining Phases Plans and
Specifications to the contractors for bidding purposes in accordance with the
The Final Phase I Plans and Specifications and the Final Remaining Phases Plans
and Specifications, shall sometimes collectively be referred to as the “Final
Plans and Specifications.”
In the essence of time, Landlord shall hire DSS Corporation as the general
contract for Landlord Work. DSS Corporation agrees to competitively bid the
work to all subcontractors and open-book all bids for Tenant and Landlord review
and selection. DSS Corporation shall receive a “cost plus 5%” fee. Tenant
shall have the opportunity to review and provide input concerning the
subcontractor bids, which Tenant agrees to do in a timely and good faith manner.
resulting from (i) change orders to the Final Phase I Plans and Specifications
or subsequent approved plans and specifications for the remaining phases of
construction, requested by Tenant or by those acting for or under the direction
of Tenant; (ii) the performance or completion by Tenant, or any entity or person
employed by Tenant, of any work in or about the Premises; (iii) the failure of
Tenant to supply adequate information to Landlord to prepare the Final Phase I
Plans and Specifications by March 13, 2007; or (iv) the failure of Landlord and
Tenant to mutually agree on the Final Phase I Plans and Specifications or
subsequent plans and specifications for the remaining phases of construction in
a timely manner, provided that in each such instance Landlord first gives Tenant
in the Improvements.
Landlord shall give Tenant estimates of the schedule for completion of each
Phase of the Improvements and thirty (30) days prior written notice of the
anticipated date each Phase of the Premises will be ready for occupancy. Within
thirty (30) days following the Commencement Date, and thereafter within thirty
(30) days following the completion of each remaining Phase, Landlord and Tenant
shall mutually conduct a walk-through of the Premises and compile a punch list
the Improvements which Landlord, upon receipt, shall diligently pursue to
correct.
Landlord represents and warrants to Tenant with respect to each completed Phase,
that as of the date each Phase is delivered to Tenant:
(i) such Phase, including the HVAC, electrical, mechanical, plumbing,
sewer and other systems serving that Phase within the Building, shall be in good
working order;
(ii) the Improvements within such completed Phase, and the Building
upon completion of all Phases, shall not violate any covenants or restrictions
of record (if any), or any applicable Legal Requirements having jurisdiction
over the Project, and
(iii) Landlord shall deliver each Phase to Tenant clean and free of
debris.
2. IMPROVEMENTS ALLOWANCE
increased rent obligation.
Parking
[exhibite-1cltamendment.gif]
Enclosed Walkway
[exhibite-2cltamendment.gif]
SECOND AMENDMENT TO LEASE
into this 31st day of October, 2007, by and between 3915 SHOPTON ROAD, LLC, a
"Landlord"), 4015 SHOPTON ROAD, LLC, a North Carolina limited liability company
(“Temporary Landlord”) and SHUTTERFLY, INC., a Delaware corporation (hereinafter
RECITALS:
Agreement dated December 22, 2006; as amended by that certain First Amendment to
Lease dated February 26, 2006, (as amended, the “Lease”) for the occupancy of
B. Temporary Landlord owns that certain building adjacent to the Premises known
as Shopton 18-C (the “Temporary Building”). Tenant desires to lease temporary
storage space from Temporary Landlord upon the same terms and conditions as the
Lease, except as set forth herein.
C. Landlord and Tenant desire to amend the Lease as hereinafter set forth and
Temporary Landlord executes this Second Amendment evidencing its consent and
acknowledgement of the terms and conditions of lease of the Temporary Premises.
Second Amendment and amend the Lease as set forth below. All terms used but not
defined herein shall have the meanings set forth in the Lease. All Recitals are
incorporated herein as if fully set forth below.
1. Signage. Landlord hereby approves the signage proposal as defined in Exhibit
“A” attached to this Second Amendment and made a part hereof. Tenant agrees to
remove said signage from the Building upon Lease expiration or earlier
termination and return any portion of the Building façade affected by such
signage removal to its original condition, ordinary wear and tear excepted.
2. Temporary Premises. Landlord hereby leases to Tenant, and Tenant
hereby accepts and rents from Landlord, for the period of November 1, 2007
(“Temporary Premises Commencement Date”) through and including January 31, 2008
(the “Temporary Premises Term”, that certain office/warehouse space (the
“Temporary Premises”) containing approximately 19,200 rentable square feet as
shown on the attached Exhibit B in the Temporary Building. Tenant acknowledges
that Landlord shall be permitted to show the Temporary Premises to prospective
tenants upon reasonable notice to Tenant. Landlord shall use commercially
reasonable efforts not to interfere with Tenant’s use of the Temporary Premises
during such showings.
3. Temporary Premises Rent. During the Temporary Premises Term,
Tenant shall pay to Landlord, without notice, demand, reduction, setoff or any
defense, and in addition to all payments due under the Lease for the Premises:
(i) a monthly rental of $3,200.00; and (ii) Tenant’s prorate share of all taxes,
insurance and common area maintenance costs for the Temporary Space, in advance,
on or before the first day of each month of the Temporary Premises Term.
4. Temporary Premises Improvements. Tenant agrees to accept the
Premises in its “AS-IS”, “WHERE-IS” condition. Notwithstanding anything in the
Lease regarding approval to the contrary, Tenant may, without any further
approval or notice to Landlord, at Tenant’s sole cost and expense, including all
permits, if any, in a good and workmanlike manner, perform the following
improvements in the Temporary Premises: (i) erect an interior chain-link fence
dividing the Temporary Premises from the remaining premises in the Building,
provided, however, that Tenant shall be responsible for removing the fence upon
expiration of the Temporary Premises Term; (ii) erect an exterior, temporary
ramp to the rear door of the Temporary Premises; and (iii) install floor lamps.
5. Lease. With the exception of anything noted in this Second
Amendment, the terms and conditions of Sections 5 through 35 the Lease shall
govern the lease of the Temporary Premises and both Temporary Landlord and
Tenant hereby agree to be bound by all such terms and conditions, except, with
respect to the Temporary Premises as follows:
a.
All references in the Lease to the “Premises” shall be deemed to mean the
Temporary Premises;
b.
All references in the Lease to the “Building” shall be deemed to mean the
Temporary Building;
c.
The last sentence of Section 14 (Governmental Orders) is hereby deleted in its
entirety.
d.
Notwithstanding anything in the Lease to the contrary, Tenant shall only be
obligated to insure its personal property stored within the Premises.
e.
The first sentence of Section 9(a) is hereby deleted in its entirety and the
following substituted therefor:
“Except as provided in Article 10 (Tenant’s Covenant to Repair), Landlord, at
Landlord's sole cost and expense, shall keep the entire Building in good repair
and maintenance (including replacements) at all times, for the proper operation
of the Building in a manner generally consistent with the maintenance and repair
(including replacements) of comparable properties, including, without
limitation, the Temporary Premises, the common areas, the Building's windows,
roof, foundation, structure and walls, and mechanical and electrical systems,
which include, but are not limited to, the heating, electrical, air
f.
Section 10 (Tenant’s Covenant to Repair) is hereby deleted in its entirety and
the following substituted therefor.
“Except as provided in Article 9 (Landlord's Covenant to Repair and Replace),
13 (Damage or Destruction of Premises), 19 (Eminent Domain), and reasonable wear
and tear, Tenant shall at all times repair all damage to the Temporary Premises
caused by Tenants or it employees, contractors, agents and invitees, and return
any portion of the Premises affected by such damage to its original condition.”
6. This Second Amendment may be executed in counterparts, which when
taken together, shall constitute the entire agreement. Temporary Landlord,
Landlord and Tenant agree that the delivery of an executed copy of this Second
Amendment by facsimile or by email of a *.pdf file with an original to follow
shall be legal and binding and shall have the same force and effect as if an
original executed copy of this Second Amendment had been delivered.
7. Ratification. Except as modified and amended by this Second
Amendment, all terms and conditions of the Lease shall remain in full force and
effect.
LANDLORD:
Name: Paul Herndon
Title: Vice President
TENANT:
a Delaware corporation
Title: Chief Financial
Officer
TEMPORARY LANDLORD:
4015 SHOPTON ROAD, LLC,
Name: Paul Herndon
Title: Vice President
EXHIBIT “A”
Tenant’s Signage Proposal
[exhibitato2ndamendment.gif]
EXHIBIT “B”
Temporary Premises Floor Plan
[exhibitbto2ndamendment.gif]
ADDENDUM TO SECOND AMENDMENT TO LEASE
THIS ADDENDUM TO SECOND AMENDMENT TO LEASE (this “Addendum”) is made and entered
into this 3rd day of January, 2008, by and between 3915 SHOPTON ROAD, LLC, a
RECITALS:
A. Landlord, Temporary Landlord and Tenant have previously entered into that
certain temporary lease arrangement more particularly described in the Second
Amendment to Lease dated October 31, 2007; (the “Second Amendment”) between
Temporary Landlord, Tenant and Landlord for the temporary occupancy of
approximately 19,200 rentable square feet of space (the “Temporary Premises”) in
the building commonly known as Shopton 18-C, in the Shopton Ridge Business Park,
Charlotte, North Carolina (the “Building”).
B. Landlord, Temporary Landlord and Tenant desire to amend Second Amendment to
allow Tenant to remain in the Premises until March 31, 2008.
of which are hereby acknowledged, Landlord, Temporary Landlord and Tenant do
hereby enter into this Addendum and amend the Lease as set forth below. All
Second Amendment. All Recitals are incorporated herein as if fully set forth
below.
1. Temporary Premises. Landlord, Temporary Landlord and Tenant hereby
amend the Second Amendment such that the Temporary Premises Term shall expire on
2. Counterpart Execution. This Amendment may be executed in
counterparts, which when taken together, shall constitute the entire
agreement. Landlord, Temporary Landlord and Tenant agree that the delivery of
an executed copy of this Addendum by facsimile or by email of a *.pdf file with
an original to follow shall be legal and binding and shall have the same force
and effect as if an original executed copy of this Addendum had been delivered.
3. Ratification. Except as modified and amended by this Addendum,
all terms and conditions of the Second Amendment shall remain in full force and
effect.
IN WITNESS WHEREOF, Landlord, Temporary Landlord and Tenant have executed this
Addendum as of the date set forth above.
LANDLORD:
Name: Paul Herndon
Title: Vice President
TENANT:
a Delaware corporation
By: /s/Douglas Appleton
Name: Douglas S.
Appleton
Title: VP, Legal
TEMPORARY LANDLORD:
Name: Paul Herndon
Title: Vice President
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FORM 6-K SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 Report of Foreign Private Issuer Pursuant to rule 13a-16 or 15d-16 of the Securities Exchange Act of 1934 for the month of February 2012 Compugen Ltd. (Translation of registrant's name in English) 72 Pinchas Rosen Street, Tel-Aviv 69512, Israel (Address of principal executive offices) Indicate by check mark whether the registrant files or will file annual reports under cover Form 20-F or Form 40-F. Form 20-F xForm 40-Fo On February 7, 2012, Compugen Ltd. (the "Registrant") issued a Press Release, filed as Exhibit 1 to this Report on Form 6-K, which is hereby incorporated by reference herein. This report on Form 6-K, including the Exhibit hereto, is hereby incorporated by reference into the Registrant’s Registration Statement on Form F-3 (Registration No. 333-171655), as amended and supplemented from time to time. 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, thereunto duly authorized. Compugen Ltd. (Registrant) By: Ms. Dikla Czaczkes Axselbrad Title:Chief Financial Officer Date: February 7, 2012
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Name: Commission Regulation (EC) No 2551/97 of 15 December 1997 suspending the introduction into the Community of specimens of certain species of wild fauna and flora
Type: Regulation
Subject Matter: trade policy; economic geography; environmental policy; international trade
Date Published: nan
L 349/4 EN Official Journal of the European Communities 19 . 12. 97 COMMISSION REGULATION (EC) No 2551/97 of 15 December 1997 suspending the introduction into the Community of specimens of certain species of wild fauna and flora Regulation of species in relation to which it has been established that the introduction of live specimens into the natural habitat of the Community would constitute an ecological threat to wild species of fauna and flora indi genous to the Community, as a result of which the species Trachemys scripta elegans and Rana catesbeiana were so listed; whereas point (d) of Article 4 (6) of that Regulation provides for the establishment by the Commission of restrictions on the introduction into the Community of such species on identical grounds; Whereas Article 41 of Commission Regulation (EC) No 939/97 (4) contains provisions for the implementation by the Member States of the restrictions established by the Commission ; Whereas the measures provided for in this Regulation are in accordance with the opinion of the Committee on Trade in Wild Fauna and Flora, THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Community, Having regard to Council Regulation (EC) No 338/97 of 9 December 1996 on the protection of species of wild fauna and flora by regulating trade therein ('), as last amended by Commission Regulation (EC) No 2307/97 (2), and in particular point 2 of Article 19 thereof, After consulting the Scientific Review Group, Whereas Article 4 (6) of Regulation (EC) No 338/97 provides for the establishment by the Commission of general restrictions, or restrictions relating to certain countries of origin , on the introduction into the Com munity of specimens of species listed in Annexes A and B thereto and lays down the criteria for such restrictions; Whereas species listed in Annex C to Council Regulation (EEC) No 3626/82 of 3 December 1982 on the imple mentation in the Community of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (3) were subject to restrictions on the introduc tion into the Community on the basis of the provisions of Article 10 ( 1 ) of that Regulation ; whereas, in view of the replacement of that Regulation by Regulation (EC) No 338 /97, the restrictions concerned should now be based on the similar criteria laid down in Article 4 (6) of the latter Regulation ; whereas the countries of origin of the species subject to those restrictions were consulted with a view to their adoption ; Whereas point (d) of Article 3 (2) of Regulation (EC) No 338/97 provides for the inclusion in Annex B to that HAS ADOPTED THIS REGULATION : Article 1 Subject to the provisions of Article 41 of Regulation (EC) No 939/97, the introduction into the Community of the specimens of the species of wild fauna and flora mentioned in the Annex to this Regulation is hereby suspended . Article 2 This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Communities. This Regulation shall be binding in its entirety and directly applicable in all Member States . Done at Brussels , 15 December 1997. For the Commission Ritt BJERREGAARD Member of the Commission (') OJ L 61 , 3 . 3 . 1997, p . 1 . (2 ) OJ L 325, 27. 11 . 1997, p . 1 . 1 OJ L 384, 31 . 12. 1982, p . 1 . ( 4) OJ L 140 , 30 . 5 . 1997, p. 9 . 19 . 12. 97 I EN I Official Journal of the European Communities L 349/5 ANNEX Specimens of species included in Annex B to Regulation (EC) No 338/97 whose introduction into the Community is suspended Species Specimens Countries of origin Basis in Article 4 (6), point: FAUNA MAMMALIA Of wild origin AH range States b MONOTREMATA Tachyglossidae Zaglossus bruijni PRIMATES Tupaiidae Tupaia glis Bhutan b Londae Arctocebus calabarensis Nycticebus coucang Nycticebus pygmaeus Perodicticus potto Galagidae b b b b Central African Republic, Gabon , Nigeria China, Philippines, Singapore All range States Angola, Libera, Nigeria Equatorial Guinea, Nigeria All range States Euoticus elegantulus (synonym Galago elegan tulus ) Galago alleni b b b b b b Galago matschiei (synonym G. inustus) Galago moholi Galago senegalensis Galagoides demidoff (synonym Galago demi dovii) Galagoides zanzibaricus (synonym Galago zanzibaricus ) b b Of wild origin Of wild origin Of wild origin Of wild origin Of wild origin Of wild origin Of wild origin Of wild origin Of wild origin Of wild origin Of wild origin Of wild origin Of wild origin Of wild origin Of wild origin Of wild origin Of wild origin Of wild origin Of wild origin Of wild origin Of wild origin Of wild origin Of wild origin Of wild origin Of wild origin Otolemur crassicaudatus Callitricidae Callithrix argentata Callithrix geoffroyi (synonym C. jacchus geof froyi) Callithrix humeralifer Callithrix jacchus b b Rwanda, Democratic Republic of Congo Mozambique Djibouti , Eritrea, Gambia Burkina Faso, Central African Republic, Kenya, Senegal Malawi , Mozambique Mozambique Brazil , Paraguay Brazil Brazil Brazil Brazil Bolivia, Ecuador All range States Colombia Peru All range States Trinidad and Tobago All range States b b bCallithrix penicillata (synonym C. jacchus penicillata ) bCallithrix pygmaea (synonym Cebuella pygmaea ) b b b Saguinus imperator Saguinus labiatus Saguinus mystax Cebidae Alouatta fusca Alouatta seniculus Ateles belzebuth b b b L 349/6 I EN I Official Tournai of the European Communities 19 . 12. 97 l Species Specimens Countries of origin Basis in Article 4 (6), point: Ateles fusciceps Of wild origin All range States b Ateles geoffroyi Of wild origin All range States b Ateles paniscus Of wild origin Bolivia, Brazil , Guyana, Peru, Suriname b Callicebus torquatus Of wild origin Colombia, Ecuador, Venezuela b Cebus albifrons Of wild origin Guyana b Cebus capucinus Of wild origin Belize, Venezuela b Cebus olivaceus Of wild origin Guyana, Peru, Suriname b Chiropotes satanas Of wild origin Brazil b Lagothrix lagothricha Of wild origin All range States b Pithecia aequatorialis (synonym P. monachus aequatorialis) Of wild origin Peru b Pithecia irrorata (synonym P. monachus irro rata ) Of wild origin Brazil , Peru b Pithecia monachus Of wild origin Brazil , Peru b Pithecia monachus hirsuta Of wild origin Bolivia, Ecuador b Pithecia pithecia Of wild origin Brazil b Cercopithecidae Allenopithecus nigroviridis Of wild origin All range States b Cercocebus agilis Of wild origin Central African Republic b Cercocebus torquatus Of wild origin Cà ´te d' Ivoire, Guinea, Nigeria, Senegal , Sierra Leone b Cercopithecus ascanius Of wild origin Angola, Burundi , Central African Repub lic , Kenya, Rwanda, Sudan, Uganda b Cercopithecus cephus Of wild origin Cameroon, Central African Republic, Equatorial Guinea, Gabon b Cercopithecus dryas (including C. salongo) Of wild origin Democratic Republic of Congo b Cercopithecus erythrogaster Of wild origin All range States b Cercopithecus erythrotis Of wild origin All range States b Cercopithecus hamlyni Of wild origin All range States b Cercopithecus mitis Of wild origin Mozambique b Cercopithecus neglectus Of wild origin Central African Republic , Ethiopia, Gabon , Kenya b Cercopithecus nictitans Of wild origin Benin, Sierra Leone b Cercopithecus petaurista Of wild origin Senegal b Cercopithecus pogonias Of wild origin Cameroon, Equatorial Guinea, Gabon , Nigeria b Cercopithecus preussi (synonym C. lhoesti preussi) Of wild origin Cameroon , Equatorial Guinea b Chlorocebus aethiops Of wild origin Mozambique b Colobus angolensis Of wild origin Angola, Malawi , Uganda, Zambia b Colobus guereza Of wild origin Equatorial Guinea, Ethiopia b Colobus polykomos Of wild origin Cà ´te d' Ivoire, Ghana, Guinea-Bissau, Nigeria, Togo b Erythrocebus patas Of wild origin Somalia b Lophocebus albigena (synonym Cercocebus albigena ) Of wild origin Cameroon , Equatorial Guinea, Kenya, Nigeria, Uganda b Macaca arctoides Of wild origin India, Malaysia, Thailand b Macaca assamensis Of wild origin Nepal b 19 . 12. 97 I EN I Official Tournai of the European Communities L 349/7 Species Specimens Countries of origin Basis in Article 4 (6), point: Macaca cyclopis Of wild origin All range States b Macaca fascicularis Of wild origin Bangladesh , India, Laos , Singapore b Macaca maura Of wild origin Indonesia b Macaca mulatta Of wild origin Myanmar, Pakistan , Thailand b Macaca nemestrina Of wild origin China b Macaca nemestrina pagensis Of wild origin Indonesia b Macaca nigra Of wild origin Indonesia b Macaca ochreata Of wild origin Indonesia b Macaca sylvanus Of wild origin Algeria, Morocco b Macaca tonkeana Of wild origin Indonesia b Miopithecus talapoin (synonym Cercopithecus talapoin ) Of wild origin Angola b Papio hamadryas Of wild origin Central African Republic, Chad, Congo, Guinea, Guinea-Bissau, Liberia, Libya, Mauritania , Niger, Sierra Leone, Somalia b Presbytis femoralis (synonym P. melalophos femoralis) Of wild origin Singapore , Thailand b Presbytis frontata Of wild origin Malaysia b Presbytis hosei Of wild origin Brunei , Malaysia b Presbytis rubicunda Of wild origin Brunei , Malaysia b Procolobus badius (synonym Colobus badius) Of wild origin All range States b Procolobus verus (synonym Colobus verus ) Of wild origin Benin , Cà ´te d'Ivoire , Ghana, Guinea, Nigeria, Sierra Leone, Togo b Theropithecus gelada Of wild origin Eritrea b Trachypithecus cristatus (synonym Presbytis cristata ) Of wild origin Malaysia, Thailand b Trachypithecus obscurus (synonym Presbytis obscura ) Of wild origin Bangladesh, Myanmar b Trachypithecus phayrei (synonym Presbytis phayrei) Of wild origin Cambodia, China, India b Trachypithecus vetulus (synonym Presbytis senex) Of wild origin Sri Lanka b XENARTHRA Myrmecophagidae Myrmecophaga tridactyla Of wild origin Belize, Uruguay b PHOLIDOTA Manidae Manis crassicaudata Of wild origin China b Manis javanica Of wild origin Bangladesh, China, Laos , Singapore b Manis pentadactyla Of wild origin Bangladesh, Thailand b Manis temminckii Of wild origin South Africa b Manis tetradactyla Of wild origin Nigeria b RODENTIA Sciurà dae Ratufa affinis Of wild origin Singapore b Ratufa bicolor Of wild origin China b L 349/8 I EN I Official Journal of the European Communities 19 . 12. 97 Species Specimens Countries of origin Basis in Article 4 (6), point: CARNIVORA Canidae Chrysocyon brachyurus Of wild origin Argentina, Bolivia, Peru b Viverridae Cynogale bennettii Of wild origin Brunei , China, Indonesia, Malaysia, Singa pore, Thailand, Vietnam b Eupleres goudotii Of wild origin Madagascar b Fossa fossana Of wild origin Madagascar b Felidae l Leptaà lurus serval Of wild origin Algeria, Burkina Faso, Cà ´te d'Ivoire, Djibouti , Eritrea, Ethiopia, Guinea, Lesotho, Mauritania, Mozambique b Oncifelis colocolo Of wild origin Argentina, Chile b Prionailurus bengalensis Of wild origin Macao b PERISSODACTYLA Equidae I Equus zebra hartmannae Of wild origin Angola b ARTJODACà à LA Hippopotamidae Hexaprotodon liberiensis (synonym Choeropsis liberiensis) Of wild origin Cà ´te d'Ivoire, Guinea, Guinea-Bissau, Nigeria, Sierra Leone b Hippopotamus amphibius Of wild origin Angola, Benin, Burundi , Central African Republic, Chad, Cà ´te d'Ivoire , Equatorial Guinea, Eritrea, Ethiopia, Gambia, Ghana, Guinea-Bissau, Liberia, Namibia, Niger, Nigeria, Rwanda, Senegal , Sierra Leone, Togo b Cervidae Pudu mephistophiles Of wild origin Colombia, Ecuador b Bovidae Ovis ammon Of wild origin All range States b AVES ANSERIFORMES Anatidae Anas bernieri Of wild origin Madagascar b FALCONIFORMES Accipitridae Accipiter brachyurus Of wild origin Papua New Guinea b Accipiter gundlachi Of wild origin Cuba b Accipiter imitator Of wild origin Papua New Guinea, Solomon Islands b Buteo galapagoensis Of wild origin Ecuador b Buteo ridgwayi Of wild origin Dominican Republic, Haiti b Erytbrotriorchis radiatus Of wild origin Australia b Gyps coprotheres Of wild origin Mozambique, Namibia, Swaziland b Harpyopsis novaeguineae Of wild origin Indonesia, Papua New Guinea b Leucopternis lacernulata Of wild origin Brazil b 19 . 12. 97 EN Official Journal of the European Communities L 349/9 Species Specimens Countries of origin Basis in Article 4 (6), point: Leucopternis occidentalis Of wild origin Ecuador, Peru b Lophoictinia isura Of wild origin Australia b Spizaetus bartelsi Of wild origin Indonesia b Falconidae Falco deiroleucus Of wild origin Belize , Guatemala b Falco fasciinucha Of wild origin Botswana, Ethiopia, Kenya, Malawi, Mozambique, South Africa, Sudan , Tanzania, Zambia, Zimbabwe b Falco hypoleucos Of wild origin Australia, Papua New Guinea b Micrastur plumbeus Of wild origin Colombia, Ecuador b GALLIFORMES Cracidae Crax rubra Of wild origin Costa Rica, Guatemala, Honduras , Mexico, Nicaragua, Panama b Penelopina nigra Of wild origin Guatemala, Honduras , Mexico b Phasianidae Polyplectron schleiermacheri Of wild origin Indonesia, Malaysia b COLUMBIFORMES Columbidae Goura cristata Of wild origin Indonesia b Goura scheepmakeri Of wild origin Indonesia b Goura victoria Of wild origin Indonesia b PSITTACIFORMES Psittacidae l Agapornis fischeri Of wild origin Burundi , Rwanda, Tanzania b Agapornis lilianae Of wild origin Mozambique, Tanzania, Zimbabwe b Of ranched origin Mozambique b Agapornis nigrigenis Of wild origin All range States b Agapornis personatus Of wild origin Kenya b Agapornis pullarius Of wild origin Angola, Benin , Burundi , Chad, Cà ´te d' Ivoire, Ethiopia, Guinea, Kenya, Nigeria, Tanzania b Agapornis roseicollis Of wild origin Botswana, South Africa b Agapornis swindernianus Of wild origin All range States b Amazona agilis Of wild origin Jamaica b Amazona albifrons Of wild origin Mexico b Amazona amazonica Of wild origin Bolivia, Peru b Amazona auropalliata Of wild origin Costa Rica, El Salvador, Guatemala, Honduras b Amazona autumnalis Of wild origin Brazil , Ecuador, Guatemala b Amazona collaria Of wild origin Jamaica b Amazona dufresniana Of wild origin Venezuela b Amazona farinosa Of wild origin Belize, Honduras , Mexico b Amazona festiva festiva Of wild origin Ecuador, Guyana b Amazona finschi Of wild origin All range States b Amazona kawalli Of wild origin Brazil b Amazona mercenaria Of wild origin Colombia, Venezuela b L 349/ 10 I EN I Official Journal of the European Communities 19 . 12. 97 Basis in Species Specimens Countries of origin Article 4 (6), point: Amazona ochrocephala Of wild origin Bolivia, Ecuador, Honduras, Peru, Trinidad and Tobago b Amazona oratrix Of wild origin All range States b Amazona ventralis Of wild origin All range States b Amazona xantholora Of wild origin Honduras b Amazona xanthops Of wild origin Bolivia, Paraguay b Aprosmictus erythropterus Of wild origin Indonesia, Papua New Guinea b Ara ararauna Of wild origin Panama, Peru, Trinidad and Tobago b Ara chloropterus Of wild origin Argentina, Panama, Peru b Ara couloni Of wild origin Bolivia, Brazil b Ara nobilis Of wild origin Bolivia b Ara severa Of wild origin Ecuador, Guyana, Panama b Aratinga acuticaudata Of wild origin Uruguay b Aratinga aurea Of wild origin Argentina, Paraguay b Aratinga auricapilla Of wild origin All range States b Aratinga erythrogenys Of wild origin Ecuador, Peru b Aratinga euops Of wild origin Cuba b Aratinga mitrata Of wild origin Peru b Aratinga solstitialis Of wild origin Suriname, Venezuela b Aratinga wagleri Of wild origin Peru b Bolborhynchus aurifrons Of wild origin Peru b Bolborhynchus aymara Of wild origin Chile b Bolborhynchus ferrugineifrons Of wild origin Colombia b Bolborhynchus orbygnesius Of wild origin Peru b Brotogeris pyrrhopterus Of wild origin Ecuador, Peru b Brotogeris sanctithomae Of wild origin Ecuador b Brotogeris versicolurus Of wild origin Ecuador, Suriname b Cacatua ducorpsi Of wild origin Solomon Islands b Cacatua galerita Of wild origin Indonesia, Papua New Guinea b Cacatua sanguinea Of wild origin Indonesia b Cacatua sulphurea Of wild origin Indonesia b Chalcopsitta cardinalis Of wild origin Solomon Islands b Charmosyna amabilis Of wild origin Fiji b Charmosyna diadema Of wild origin All range States b Charmosyna margarethae Of wild origin Solomon Islands b Charmosyna meeki Of wild origin Solomon Islands b Charmosyna palmarum Of wild origin Solomon Islands b Coracopsis vasa Of wild origin Madagascar b Cyanoliseus patagonus Of wild origin Chile, Uruguay b Cyanoramphus unicolor Of wild origin New Zealand b Deroptyus accipitrinus Of wild origin Brazil , Peru b Eclectus roratus Of wild origin Indonesia, Solomon Islands b Enicognathus leptorhynchus Of wild origin Chile b Eos cyanogenia Of wild origin Indonesia b Eos reticulata Of wild origin Indonesia b Eunymphicus cornutus Of wild origin New Caledonia b Forpus xanthops Of wild origin Peru b 19 . 12 . 97 I EN I CommunitiesOfficial Journal of the European L 349 / 11 Species Specimens Countries of origin Basis in Article 4 (6), point: Geoffroyus heteroclitus Of wild origin Solomon Islands b Hapalopsittaca amazonina Of wild origin All range States b Hapalopsittaca fuertesi Of wild origin Colombia b Hapalopsittaca pyrrhops Of wild origin All range States b Leptosittaca branickii Of wild origin All range States b Loriculus flosculus Of wild origin Indonesia b Lorius albidinuchus Of wild origin Papa New Guinea b Lorius chlorocercus Of wild origin Solomon Islands b Lorius domicella Of wild origin Indonesia b Lorius garrulus Of wild origin Indonesia b Lorius lory Of wild origin Indonesia b Micropsitta bruijnii Of wild origin Solomon Islands b Micropsitta finschii Of wild origin Solomon Islands b Nannopsittaca dachilleae Of wild origin Bolivia, Peru b Nannopsittaca panychlora Of wild origin Brazil , Guyana b Neophema splendida Of wild origin Australia b Pionites leucogaster Of wild origin Brazil , Ecuador b Pionopsitta pulchra Of wild origin All range States b Pionopsitta pyrilia Of wild origin All range States b Pionus chalcopterus Of wild origin Peru b Pionus senilis Of wild origin Guatemala, Honduras , Panama b Pionus tumultuosus Of wild origin Colombia, Ecuador, Venezuela b Poicephalus crassus Of wild origin All range States b Poicephalus cryptoxanthus Of wild origin Tanzania b Of ranched origin Mozambique b Poicephalus gulielmi Of wild origin Equatorial Guinea b Poicephalus meyeri Of wild origin Eritrea, Ethiopia, Tanzania b Of ranched origin Mozambique b Poicephalus robustus Of wild origin Botswana, Cà ´te d'Ivoire, Gambia, Ghana, Guinea-Bissau, Namibia, Nigeria, Senegal , South Africa, Swaziland, Togo b Poicephalus rufiventris Of wild origin Tanzania b Poicephalus senegalus Of wild origin Burkina Faso, Chad, Liberia, Mali , Mauri tania, Niger, Sierra Leone b Polytelis alexandrae Of wild origin Australia b Prioniturus luconensis Of wild origin Philippines b Prosopeia personata Of wild origin Fiji b Prosopeia splendens Of wild origin Fiji b Prosopeia tabuensis Of wild origin All range States b Psittacula alexandri Of wild origin Indonesia b Psittacula cyanocephala Of wild origin Bangladesh b Psittacula finschii Of wild origin Bangladesh, Cambodia b Psittacula intermedia Of wild origin India b Psittacula roseata Of wild origin China, Vietnam b Psittaculirostris desmarestii Of wild origin Indonesia b Psittaculirostris edwardsii Of wild origin Indonesia b Psittaculirostris salvadorii Of wild origin Indonesia b L 349/ 12 | EN I Official Journal of the European Communities 19 . 12 . 97 Species Specimens Countries of origin Basis in Article 4 (6), point: Psittacus erithacus Of wild origin Angola, Benin, Burundi , Cameroon, Central African Republic, Cà ´te d'Ivoire , Equatorial Guinea, Liberia, Mali , Sà £o Tomà © and Prà ncipe, Sierra Leone, Tanzania, Togo b Psitteuteles goldiei Of w wild origin Indonesia b Psitteuteles iris Of w wild origin All range States b Psittinus cyanuras Of w wild origin Vietnam b Psittrichas fulgidus Of w wild origin All range States b Pyrrhura albipectus Of w wild origin Ecuador b Pyrrhura calliptera Of w wild origin Colombia b Pyrrhura hoematotis Of w wild origin Venezuela b Pyrrhura leucotis Of w wild origin Brazil b Pyrrhura molinae Of w wild origin Paraguay b Pyrrhura orcesi Of w wild origin Ecuador b Pyrrhura picta Of w wild origin Bolivia, Colombia b Pyrrhura viridicata Of w wild origin Colombia b Tanygnathus gramineus Of w wild origin Indonesia b Tanygnathus sumatranus Of w wild origin Indonesia b Touit melanonotus Of w wild origin Brazil b Touit surda Of w wild origin Brazil b Trichoglossus euteles Of w wild origin Indonesia b Trichoglossus haematodus Of w wild origin Solomon Islands b Trichoglossus johnstoniae Of w wild origin Philippines b Trichoglossus ornatus Of w wild origin Indonesia b Trichoglossus rubiginosus Of w wild origin Federated States of Micronesia b Triclaria malachitacea Of w wild origin Argentina, Brazil b STRIGIFORMES Tytonidae Phodilus prigoginei Of wild origin Democratic Republic of Congo b Tyto aurantia Of wild origin Papua New Guinea b Tyto inexspectata Of wild origin Indonesia b Tyto manusi Of wild origin Papua New Guinea b Tyto nigrobrunnea Of wild origin Indonesia b Tyto sororcula Of wild origin Indonesia b Strigidae Bubo philippensis Of wild origin Philippines b Bubo vosseleri Of wild origin Tanzania b Glaucidium albertinum Of wild origin Rwanda, Zaire b Ketupa blakistoni Of wild origin China, Japan , Russian Federation b Ketupa ketupu Of wild origin Singapore b Nesasio solomonensis Of wild origin Papua New Guinea, Solomon Islands b Ninox affinis Of wild origin India b Ninox rudolfi Of wild origin Indonesia b Otus angelinae Of wild origin Indonesia b Otus fuliginosus Of wild origin Philippines b Otus longicornis Of wild origin Philippines b 19 . 12. 97 I EN I Official Journal of the European Communities L 349/ 13 Species Specimens Countries of origin Basis in Article 4 (6), point: Otus magicus Of wild origin Seychelles b Otus mindorensis Of wild origin Philippines b Otus mirus Of wild origin Philippines b Otus pauliani Of wild origin Comoros b Otus rutilus Of wild origin Comoros b Scotopelia ussheri Of wild origin Cà ´te d'Ivoire, Ghana, Guinea, Liberia, Sierra Leone b Strix davidi Of wild origin China b CORACIIFORMES Bucerottdae l Buceros rhinoceros Of wild origin Thailand b PASSERIFORMES Pittidae Pitta nympha Of wild origin All range States b REPTILIA TESTUDINES Emydidae Trachemys scripta elegans All live, including captive-bred All countries of origin d Testudinidae Geochelone carbonaria Of wild origin Argentina, Panama b Geochelone chilensis Of wild origin Argentina b Geochelone denticulata Of wild origin Bolivia, Ecuador b Geochelone elegans Of wild origin Bangladesh, Pakistan b Geochelone pardalis Of wild origin Mozambique, Namibia, Swaziland, Tanzania b Of ranched origin Mozambique b Geochelone sulcata Of wild origin Djibouti , Eritrea, Guinea, Niger, Togo b Gopherus agassizii Of wild origin All range States b Gopherus berlandieri Of wild origin All range States b Gopherus polyphemus Of wild origin United States of America b Homopus signatus Of wild origin Namibia b Indotestudo elongata Of wild origin Bangladesh, India b Indotestudo forstenii Of wild origin All range States b Kinixys belliana Of wild origin Burundi , Central African Republic, Cà ´te d'Ivoire, Djibouti , Liberia, Madagascar, Mauritania, Mozambique b l Of ranched/captive-bred origin Benin, Mozambique b Kinixys erosa Of wild origin Benin, Guinea-Bissau, Togo b Kinixys homeana Of ranched/captive-bred origin Benin b Kinixys natalensis Of wild origin Mozambique, South Africa, Swaziland b Manouria emys Of wild origin All range States b Manouria impressa Of wild origin All range States b Pyxis arachnoà ¯des Of wild origin All range States b Testudo horsfieldii Of wild origin China, Pakistan b Pelomedusidae Erymnochelys madagascariensis Of wild origin Madagascar b Peltocephalus dumerilianus Of wild origin Peru b L 349/ 14 | EN I Official Journal of the European Communities 19 . 12. 97 Species Specimens Countries of origin Basis in Article 4 (6), point: Podocnemis erythrocephala Of wild origin Colombia, Venezuela b Podocnemis expansa Of wild origin Colombia, Ecuador, Guyana, Peru, b Trinidad and Tobago, Venezuela I Podocnemis lewyana Of wild origin All range States b Podocnemis sextuberculata Of wild origin Peru b CROCODYLIA \ Alligatoridae I Caiman crocodilus crocodilus Of wild origin Bolivia, Ecuador, Peru, Trinidad and b Tobago Caiman crocodilus fuscus Of wild origin Belize, Costa Rica, Ecuador, El Salvador, b Guatemala, Mexico, Panama, Venezuela Caiman yacare Of wild origin Argentina, Bolivia b Palaeosuchus trigonatus Of wild origin Guyana b SAURIA Agamidae Uromastyx acanthinurus Of wild origin Egypt b Uromastyx aegyptius Of wild origin Egypt b Uromastyx maliensis Of wild origin All range States b Uromastyx ocellatus Of wild origin Djibouti , Egypt, Ethiopia, Saudi Arabia, b Yemen Uromastyx thomasi Of wild origin Oman b Gekkonidae Phelsuma abbotti Of wild origin Madagascar b Phelsuma antanosy Of wild origin Madagascar b Phelsuma barbouri Of wild origin Madagascar b Phelsuma befotakensis Of wild origin Madagascar b Phelsuma breviceps Of wild origin Madagascar b Phelsuma chekei Of wild origin Madagascar b Phelsuma dubia Of wild origin Madagascar, Mozambique, Tanzania b Phelsuma edwardnewtonii Of wild origin Mauritius b Phelsuma flavigularis Of wild origin Madagascar b Phelsuma guimbeaui Of wild origin Mauritius b Phelsuma guttata Of wild origin Madagascar b Phelsuma klemmeri Of wild origin Madagascar b Phelsuma minuthi Of wild origin Madagascar b Phelsuma modesta Of wild origin Madagascar b Phelsuma mutabilis Of wild origin Madagascar b Phelsuma pronki Of wild origin Madagascar b Phelsuma pusilla Of wild origin Madagascar b Phelsuma seippi Of wild origin Madagascar b Phelsuma serraticauda Of wild origin Madagascar b Phelsuma standingi Of wild origin Madagascar b Phelsuma trilineata Of wild origin Madagascar b Iguanidae Conolophus pallidus Of wild origin Ecuador b Conolophus subcristatus Of wild origin Ecuador b 19 . 12. 97 I EN I Official Journal of the European Communities L 349/ 15 Species Specimens Countries of origin Basis in Article 4 (6), point: Helodermatidae Heloderma horridum Of wild origin Guatemala, Mexico b Heloderma suspectum Of wild origin Mexico, United States of America b Varanidae l Varanus albigularis Of wild origin Djibouti , Eritrea, Kenya, Lesotho, Mozam bique, Swaziland, Uganda, Democratic Republic of Congo b Varanus baritji Of wild origin Australia b Varanus beccarii Of wild origin Indonesia b Varanus bogerti Of wild origin Papa New Guinea b Varanus dumerilii Of wild origin Brunei b Varanus exanthematicus Of wild origin Angola, Benin , Burkina Faso, Burundi , Djibouti , Kenya, Liberia, Malawi, Niger, Rwanda, Democratic Republic of Congo b Of ranched origin Benin, Togo b Varanus glauerti Of wild origin Australia b Varanus indicus Of wild origin Australia, Marshall Islands, Solomon Islands b Varanus irrawadicus Of wild origin China b Varanus jobiensis (synonym V karlschmidti) Of wild origin Papua New Guinea b Varanus kingorum Of wild origin Australia b Varanus niloticus Of wild origin Burkina Faso, Burundi , Djibouti , Egypt, Equatorial Guinea, Lesotho, Mauritania, Mozambique, Rwanda, Swaziland b Of ranched origin Benin , Togo b Varanus pilbarensis Of wild origin Australia b Varanus rudicollis Of wild origin Philippines b Varanus salvadorii Of wild origin Papua New Guinea b Varanus salvator Of wild origin Bangladesh, Brunei , Cambodia, China, India, Myanmar, Philippines, Singapore, Vietnam b Varanus similis Of wild origin Papua New Guinea b Varanus telenestes Of wild origin Papua New Guinea b Varanus teriae Of wild origin Australia b Varanus yemenensis Of wild origin Saudi Arabia, Yemen b SERPENTES Boidae Boa constrictor Of wild origin Costa Rica, El Salvador, Honduras, Peru b Eunectes barbouri Of wild origin Brazil b Eunectes deschauenseei Of wild origin Brazil b Eunectes murinus Of wild origin Paraguay b Eunectes notaeus Of wild origin Bolivia, Uruguay b Python anchietae Of wild origin All range States b Python curtus Of wild origin Brunei b Python molurus Of wild origin | China, Laos, Vietnam b L 349/ 16 I EN I Official Journal of the European Communities 19 . 12. 97 Species Specimens Countries of origin Basis in Article 4 (6), point: Python regius Of wild origin Central African Republic , Congo, Equato rial Guinea, Gabon, Liberia b Of ranched origin Benin b Of ranched/captive-bred origin Togo b Python reticulatus Of wild origin Bangladesh, Cambodia, India, Singapore b Python sebae Of wild origin Mauritania, South Africa b Of ranched origin Benin , Mozambique b AMPHIBIA ANURA Ranidae Rana catesbeiana All live, including captive-bred All countries of origin d FLORA Orchidaceae Aceras anthropophorum Of wild origin Turkey b Anacamptis pyramidalis Of wild origin Estonia, Slovakia, Switzerland, Turkey b Barita robertiana Of wild origin Malta, Turkey b Cephalanthera datnasonium Of wild origin Poland, Slovakia b Cephalanthera rubra Of wild origin Latvia, Lithuania, Norway, Poland, Slovakia b Dactylorhiza fuchsii Of wild origin Czech Republic, Poland b Dactylorhiza incarnata Of wild origin Norway, Slovakia b Dactylorhiza latifolia Of wild origin Norway, Poland, Slovakia b Dactylorhiza maculata Of wild origin Czech Republic, Lithuania, Norway b Dactylorhiza romana Of wild origin Turkey b Dactylorhiza russowii Of wild origin Czech Republic , Lithuania, Norway, Poland b Dactylorhiza traunsteineri Of wild origin Liechtenstein, Poland b Gymnadenia conopsea Of wild origin Czech Republic, Lithuania, Slovakia b Himantoglossum hircinum Of wild origin Czech Republic, Hungary, Switzerland b Nigritella nigra Of wild origin Norway b Ophrys apifera Of wild origin Hungary b Ophrys holoserica Of wild origin Turkey b Ophrys insectifera Of wild origin Czech Republic, Hungary, Latvia, Liech tenstein, Norway, Romania, Slovakia b Ophrys pallida Of wild origin Algeria b Ophrys scolopax Of wild origin Hungary, Romania b Ophrys sphegodes Of wild origin Hungary, Romania, Switzerland b Ophrys tenthredinifera Of wild origin Malta, Turkey b Ophrys umbilicata Of wild origin Turkey b Orchis coriophora Of wild origin Poland, Russian Federation , Switzerland b Orchis italica Of wild origin Malta, Turkey b Orchis laxiflora Of wild origin Switzerland b Orchis mascula Of wild origin Estonia, Lithuania, Poland b Orchis militarts Of wild origin Lithuania, Poland, Slovakia b 19 . 12. 97 EN Official Journal of the European Communities L 349/ 17 Species Specimens Countries of origin Basis in Article 4 (6), point: Orchis morio Of wild origin Estonia, Lithuania, Poland, Slovakia, Turkey b Orchis pallens Of wild origin Hungary, Poland, Russian Federation , Slovakia b Orchis papilionacea Of wild origin Romania, Slovenia b Orchis provincialis Of wild origin Switzerland b Orchis punctulata Of wild origin Turkey b Orchis purpurea Of wild origin Poland, Slovakia, Switzerland, Turkey b Orchis simia Of wild origin Bosnia and Herzegovina, Croatia, Mace donia, Romania, Slovenia, Switzerland, Turkey, Yugoslavia b Orchis tridentata Of wild origin Czech Republic , Slovakia, Turkey b Orchis ustulata Of wild origin Estonia, Latvia, Lithuania, Poland, Russian Federation , Slovakia b Serapias cordigera Of wild origin Turkey b Serapias lingua Of wild origin Malta b Serapias parviflora Of wild origin Turkey b Serapias vomeracea Of wild origin Malta, Switzerland, Turkey b Spiranthes spiralis Of wild origin Czech Republic, Liechtenstein , Poland, Switzerland b Primulaceae Cyclamen intaminatum Of wild origin Turkey b Cyclamen mirabile Of wild origin Turkey b Cyclamen parviflorum Of wild origin Turkey b Cyclamen persicum Of wild origin Turkey b Cyclamen pseudibericum Of wild origin Turkey b Cyclamen trochopteranthum Of wild origin Turkey b |
Exhibit 10.1
[logo.jpg]
October 7, 2015
Mr. John Nolan
Dear John:
the Company will be Wednesday, October 7, 2015.
1. Position. Your title will be Chief Financial Officer and you will report
to the Office of the Chief Executive Officer (“Office of the CEO”). This is a
$250,000 per year, less all appropriate state and federal taxes and
annual target bonus being equal to $75,000, payable on an annual basis after the
objective or subjective criteria to be established by the Office of the CEO
within 90 days of your first day working for the Company. Any annual bonus will
be paid within 2 1/2 months after the end of the fiscal year to which it
relates, but only if you are still employed by the Company at the time of
payment.
100,000 shares of the Company’s Common Stock. The stock option will be granted
as an inducement grant under the Nasdaq listing rules outside of the Company’s
2015 Equity Incentive Plan (the “EIP”), not intending to qualify as an
(the “Code”), with (i) the stock option having an exercise price equal to the
fair market value of the Company’s common stock at the close of market on the
date of the grant and (ii) the stock option vesting 25% after completing 12
months of continuous service from the date of your first day working for the
Company with the remaining balance in monthly installments over the following 36
months of continuous service.
October 7, 2015
Page 2
Agreement (the “PIIA”) which is attached hereto as Exhibit B.
Company’s Board of Directors (“the Board”) related to tax liabilities arising
from your compensation.
409A.
(available at www.adr.org or from Human Resources) in Hamilton County, Indiana.
The arbitrator shall permit adequate discovery and is empowered to award all
remedies otherwise available in a court of competent jurisdiction and any
by the arbitrator.
October 7, 2015
Page 3
Board.
an express written agreement signed by both you and the Chief Executive Officer.
The terms of this letter agreement and the resolution of any disputes as to the
of, related to, or in any way connected with, this letter agreement, your
Company will be governed by California law, excluding laws relating to conflicts
October 7, 2015
Page 4
Very truly yours,
SELECTICA, INC.
By:
Name:
Patrick Stakenas
Title:
President and Chief Executive
Officer
/s/ John Nolan
John Nolan
Attachment
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CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM We consent to the use in this Post Effective Amendment No. 1 to Registration Statement No.144687 of our report dated March 28, 2008, relating to the consolidated financial statements of Paragon, Inc appearing in the Prospectus, which is a part of such Registration Statement, and to the reference to us under the heading “Experts” in such Prospectus. /s/ Deloitte Deloitte. Hadjipavlou, Sofianos & Cambanis S.A. Athens, Greece May
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EXHIBIT 99.1 FOR IMMEDIATE RELEASE INTERNATIONAL COAL GROUP ANNOUNCES POSTPONEMENT OF 2 Scott Depot, West Virginia, May 11, 2011 – International Coal Group, Inc. (NYSE:ICO) (the “Company”) announced today that, as a result of the definitive agreement it signed on May 2, 2011 with Arch Coal, Inc. (“Arch”) under which Arch will acquire all of the outstanding shares of the Company, the 2011 Annual Meeting of Stockholders previously scheduled for May 18, 2011, has been postponed indefinitely. The Company is a leading producer of coal in Northern and Central Appalachia and the Illinois Basin.The Company has 13 active mining complexes, of which 12 are located in Northern and Central Appalachia and one in Central Illinois.The Company’s mining operations and reserves are strategically located to serve utility, metallurgical and industrial customers domestically and internationally. # # # For more information, contact Ross Mazza, Director of Financial Reporting and Investor Relations, at (304) 760-2526. # # # Note on Forward-Looking Statements Statements in this press release that are not historical facts are forward-looking statements within the “safe harbor” provision of the Private Securities Litigation Reform Act of 1995 and may involve a number of risks and uncertainties. We have used the words “anticipate,” “believe,” “could,” “estimate,” “expect,” “intend,” “may,” “plan,” “predict,” “project” and similar terms and phrases, including references to assumptions, to identify forward-looking statements. These forward-looking statements are made based on expectations and beliefs concerning future events affecting us and are subject to various risks, uncertainties and factors relating to our operations and business environment, all of which are difficult to predict and many of which are beyond our control, that could cause our actual results to differ materially from those matters expressed in or implied by these forward-looking statements. The following factors are among those that may cause actual results to differ materially from our forward-looking statements: market demand for coal, electricity and steel; availability of qualified workers; future economic or capital market conditions; weather conditions or catastrophic weather-related damage; our production capabilities; consummation of financing, acquisition or disposition transactions and the effect thereof on our business; a significant number of conversions of our convertible senior notes prior to maturity; our plans and objectives for future operations and expansion or consolidation; our relationships with, and other conditions affecting, our customers; availability and costs of key supplies or commodities, such as diesel fuel, steel, explosives and tires; availability and costs of capital equipment; prices of fuels which compete with or impact coal usage, such as oil and natural gas; timing of reductions or increases in customer coal inventories; long-term coal supply arrangements; reductions and/or deferrals of purchases by major customers; risks in or related to coal mining operations, including risks related to third-party suppliers and carriers operating at our mines or complexes; unexpected maintenance and equipment failure; adoption by Appalachian states of EPA guidance regarding stringent water quality-based limitations in CWA Section 402 wastewater discharge permits and CWA Section 404 dredge and fill permits; environmental, safety and other laws and regulations, including those directly affecting our coal mining and production, and those affecting our customers’ coal usage; ability to obtain and maintain all necessary governmental permits and authorizations; competition among coal and other energy producers in the United States and internationally; railroad, barge, trucking and other transportation availability, performance and costs; employee benefits costs and labor relations issues; replacement of our reserves; our assumptions concerning economically recoverable coal reserve estimates; availability and costs of credit, surety bonds and letters of credit; title defects or loss of leasehold interests in our properties which could result in unanticipated costs or inability to mine these properties; the impact of the mine explosion at a competitor’s mine on federal and state authorities’ decisions to enact laws and regulations that result in more frequent mine inspections, stricter enforcement practices and enhanced reporting requirements; future legislation and changes in regulations or governmental policies or changes in interpretations or enforcement thereof, including with respect to safety enhancements and environmental initiatives relating to global warming and climate change; impairment of the value of our long-lived and deferred tax assets; our liquidity, including our ability to adhere to financial covenants related to our borrowing arrangements; adequacy and sufficiency of our internal controls; and legal and administrative proceedings, settlements, investigations and claims, including those related to citations and orders issued by regulatory authorities, and the availability of related insurance coverage. You should keep in mind that any forward-looking statement made by us in this press release or elsewhere speaks only as of the date on which the statements were made. See also the “Risk Factors” in our 2010 Annual Report on Form 10-K and subsequent filings with the Securities and Exchange Commission, all of which are currently available on our website at www.intlcoal.com. New risks and uncertainties arise from time to time, and it is impossible for us to predict these events or how they may affect us or our anticipated results. We have no duty to, and do not intend to, update or revise the forward-looking statements in this press release, except as may be required by law. In light of these risks and uncertainties, you should keep in mind that any forward-looking statement made in this press release might not occur. Additional Information This press release is for informational purposes only and is not an offer to buy or the solicitation of an offer to sell any shares of the Company’s common stock. In connection with the merger agreement, Arch will commence a tender to acquire all of the outstanding shares of the Company’s common stock. This tender offer has not yet been commenced. On the commencement date of the tender offer, an offer to purchase, a letter of transmittal and related documents will be filed with the Securities and Exchange Commission (“SEC”). The solicitation of offers to buy shares of the Company’s common stock will only be made pursuant to the offer to purchase, the letter of transmittal and related documents. Investors and the Company’s securityholders are strongly advised to read both the tender offer statement and the solicitation/recommendation statement that will be filed by the Company regarding the tender offer when they become available as they will contain important information. Investors and securityholders may obtain free copies of these statements (when available) and other documents filed with respect to the tender offer at the SEC’s website at www.sec.gov.
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UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 10-Q x QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the quarterly period ended March 31, 2011 o TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the transition period from to Commission file number 001-14124 MILLER INDUSTRIES, INC. (Exact name of registrant as specified in its charter) Tennessee 62-1566286 (State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.) 8503 Hilltop Drive Ooltewah, Tennessee (Address of principal executive offices) (Zip Code) (423) 238-4171 (Registrant’s telephone number, including area code) Not Applicable (Former name, former address and former fiscal year, if changed since last report) Indicate by check mark whether the registrant:(1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. xYesoNo Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). oYesoNo 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 the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act: Large accelerated filero Accelerated filerx Non-accelerated fileroSmaller reporting companyo Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). oYesxNo The number of shares outstanding of the registrant’s common stock, par value $.01 per share, as of April 29, 2011 was 11,828,050. Index Page Number PART I FINANCIAL INFORMATION Item 1. Financial Statements Condensed Consolidated Balance Sheets – March 31, 2011 and December 31, 2010 2 Condensed Consolidated Statements of Income for the Three Months Ended March 31, 2011 and 2010 3 Condensed Consolidated Statements of Cash Flows for the Three Months Ended March 31, 2011 and 2010 4 Notes to Condensed Consolidated Financial Statements 5 Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations 9 Item 3. Quantitative and Qualitative Disclosures About Market Risk 13 Item 4. Controls and Procedures 13 PART II OTHER INFORMATION Item 1. Legal Proceedings 14 Item 1A. Risk Factors 14 Item 6. Exhibits 14 SIGNATURES 15 FORWARD-LOOKING STATEMENTS Certain statements in this Form 10-Q, including but not limited to statements made in Part I, Item 2–“Management’s Discussion and Analysis of Financial Condition and Results of Operations,” may be deemed to be forward-looking statements, as defined in the Private Securities Litigation Reform Act of 1995.Forward-looking statements can be identified by the use of words such as “may,” “will,” “should,” “could,” “continue,” “future,” “potential,” “believe,” “project,” “plan,” “intend,” “seek,” “estimate,” “predict,” “expect,” “anticipate” and similar expressions, or the negative of such words, or other comparable terminology.Forward-looking statements also include the assumptions underlying or relating to any of the foregoing statements.Such forward-looking statements are made based on our management’s beliefs as well as assumptions made by, and information currently available to, our management.These forward-looking statements are subject to a number of risks and uncertainties, including, economic and market conditions; the risks related to the general economic health of our customers; the success and timing of existing and additional export and governmental orders; our customers’ access to capital and credit to fund purchases, including the ability of our customers to secure floor plan financing; changes in fuel and other transportation costs; the cyclical nature of our industry; our dependence on outside suppliers of raw materials; changes in the cost of aluminum, steel and related raw materials; and those other risks referenced herein, including those risks referred to in Part II, Item 1A–”Risk Factors” and those risks discussed in our other filings with the Securities and Exchange Commission, including those risks discussed under the caption “Risk Factors” in our Annual Report on Form 10-K for fiscal 2010, which discussion is incorporated herein by this reference.Such factors are not exclusive.We do not undertake to update any forward-looking statement that may be made from time to time by, or on behalf of, our company. PART I.FINANCIAL INFORMATION ITEM 1. FINANCIAL STATEMENTS MILLER INDUSTRIES, INC. AND SUBSIDIARIES CONDENSED CONSOLIDATED BALANCE SHEETS (In thousands, except share data) March31, 2011 (Unaudited) December31, 2010 ASSETS CURRENT ASSETS: Cash and temporary investments $ $ Accounts receivable, net of allowance for doubtful accounts of $1,832 and $1,843 at March31, 2011 and December31, 2010, respectively Inventories Prepaid expenses Current deferred income taxes 4,799 5,218 Total current assets PROPERTY, PLANT, AND EQUIPMENT, net GOODWILL OTHER ASSETS 281 288 $
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Exhibit EXECUTION VERSION INTELLECTUAL PROPERTY SECURITY AGREEMENT This INTELLECTUAL PROPERTY SECURITY AGREEMENT (as amended, amended and restated, supplemented or otherwise modified from time to time, the “IP Security Agreement”) dated May 30, 2008, is made by RENTECH ENERGY MIDWEST CORPORATION, a corporation organized under the laws of the State of Delaware (the “Borrower”), RENTECH, INC., a corporation organized under the laws of the State of Colorado (“Holdings”) and each of the Subsidiary Guarantors identified on the signature pages hereof (such Subsidiary Guarantors, together with Holdings and the Borrower, are referred to hereinafter each individually as a “Grantor,” and collectively as the “Grantors”) in favor of CREDIT SUISSE, CAYMAN ISLANDS BRANCH, as administrative agent for the Lenders and collateral agent for the Secured Parties (the “Agent”).Defined terms used herein but not otherwise defined herein shall have the meanings ascribed to them in the Guarantee Agreement (as defined below). WHEREAS, the Grantors have entered into a Guarantee and Collateral Agreement, dated as of May 30, 2008 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Guarantee Agreement”), together with Collateral Agent and the Subsidiaries from time to time party thereto. WHEREAS, under the terms of the Guarantee Agreement, the Grantors have granted to the Collateral Agent, a security interest in, among other property, certain intellectual property of the Grantors, and have agreed as a condition thereof to execute this IP Security Agreement for recording with the U.S. Patent and Trademark Office, the United States Copyright Office and other governmental authorities. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each Grantor agrees as follows: SECTION 1.Grant of Security.Each Grantor hereby grants to the Collateral Agent, for the ratable benefit of the Secured Parties, a security interest in all of such Grantor’s right, title and interest in or to any of the Article 9
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Exhibit 10.1
TRANSITION AND CONSULTING AGREEMENT
THIS TRANSITION AND CONSULTING AGREEMENT (this “Agreement”), effective as of
February 17, 2015 (the “Effective Date”), is made by and between MedAssets,
Inc., a Delaware corporation (the “Company”), and John A. Bardis (“Consultant”).
WHEREAS, Consultant currently serves as the Chairman and Chief Executive Officer
of the Company;
WHEREAS, Consultant wishes to transition to a consulting role with the Company;
WHEREAS, in connection therewith, the Company desires to obtain the services of
Consultant, as described below, and Consultant is willing to provide such
services on the terms and for the consideration set out below; and
WHEREAS, Consultant and the Company desire to embody in this Agreement the terms
and conditions of Consultant’s engagement by the Company, which terms and
and understandings between the Company and its representatives and Consultant
relating to Consultant’s services.
SECTION 1. ENGAGEMENT: The Company hereby agrees to engage Consultant, and
Consultant does hereby accept such engagement with the Company and agrees to
serve the Company in the capacity of a consultant for the Term (as hereinafter
defined) and subject to and upon the terms and conditions as herein
contained. This Agreement is a contract for personal services and the
Consulting Services (as hereinafter defined) may be provided only by Consultant;
provided, however, that the Consulting Services may be supplied through a
business entity organized and controlled by Consultant, provided that Consultant
shall personally act on behalf of such business entity in connection with all
matters related to this Agreement. Consultant hereby confirms his resignation
as Chairman and Chief Executive Officer of the Company and from all offices,
capacities held with, or on behalf of, the Company effective as of the Effective
Date; provided, however, that Consultant shall continue as a member of the board
of directors of the Company (the “Board”) until the 2015 Annual Meeting of
Stockholders of the Company (the “Annual Meeting”). Consultant shall not stand
for election to the Board at the Annual Meeting and immediately following the
Annual Meeting Consultant shall be deemed to have resigned (with immediate
effect and without any further action of the parties) from the Board. Following
the Annual Meeting and during the Term, Consultant shall have the title of
Non-Executive Chairman Emeritus.
SECTION 2. TERMINATION OF PRIOR AGREEMENTS: By signing this Agreement,
Consultant acknowledges and agrees that the employment agreement by and between
the Company and Consultant, dated as of August 21, 2007 and as amended and
restated on May 2, 2011 and as further amended on December 13, 2013 (the “Prior
Agreement”), is hereby terminated effective as of the Effective Date, including,
but not limited to Consultant’s rights to resign for “good reason,” to receive
an annual bonus and to collect severance pay in connection with a termination of
employment, except as provided in Section 10 below, and that the Third Amended
and Restated Reimbursement Agreement made and entered into as of January 1, 2014
between Consultant and the Company (the “Reimbursement Agreement”) is hereby
terminated effective as of January 1, 2015 (other than any obligation of
Consultant to reimburse the Company for the prepayment that was made pursuant to
such agreement on or about January 1, 2015). Notwithstanding anything herein to
the contrary, Consultant’s rights to indemnification or contribution by virtue
of Consultant’s position as an officer or director of the Company or any of its
subsidiaries or affiliates or under any indemnification agreement between
Consultant and the Company and the benefits to Consultant under the Company’s
directors and officers’ liability insurance policies for actions or inactions
while serving as an officer or director of the Company (including any applicable
tail coverage) shall continue to apply. Consultant hereby acknowledges and
agrees that, as of the Effective Date, Consultant (a) has, and will have, no
claims, rights, causes of action, damages, grievances, liabilities, or the like
against the Company or any of its subsidiaries or affiliates, and their
respective successors and assigns, together with their respective present or
former employees, officers, directors, managers, members, stockholders or agents
(collectively, the “Released Parties”) relating to or arising under or in
connection with the Prior Agreement or the Reimbursement Agreement, including
the termination of the Prior Agreement or the Reimbursement Agreement, or
Consultant’s employment or the termination of Consultant’s employment with the
Company (the “Claims”), and (b) irrevocably and unconditionally, individually
and on behalf of Consultant’s beneficiaries, heirs, administrators, executors
and assigns, fully releases, acquits, and forever discharges the Released
Parties from, and covenants not to sue, or in any manner to institute,
prosecute, or pursue, any Claim against, the Released Parties with respect to,
any and all Claims (whether presently known or unknown or suspected or
unsuspected) that Consultant may have; provided, however, that, notwithstanding
the foregoing, Consultant is not releasing any claims with respect to: (i) any
obligation under this Agreement; (ii) any claims that cannot be waived by law;
(iii) Consultant’s rights as a stockholder or holder of equity grants under the
Company’s incentive compensation plans and programs; (iv) claims for
indemnification or contribution under any indemnification agreement to which
Consultant is a party or the Company’s by-laws or charter or any coverage under
the Company’s directors and officers’ liability insurance policies; or
(v) accrued and vested employee benefits under the Company’s employee benefit
and compensation plans, any accrued but unpaid base salary and accrued vacation,
in each case, as of the Effective Date and any unpaid business expenses incurred
2
SECTION 3. TERM: The term of this Agreement shall commence on the Effective
unless earlier terminated in accordance with Section 8 hereof (the “Term”).
SECTION 4. CONSULTING SERVICES: During the Term, Consultant shall, when and as
requested by the Board or the Chief Executive Officer of the Company, act as a
consultant, giving at all times the full benefit of his knowledge, expertise,
technical skill and ingenuity, to provide advice to the Board and members of
management on an as-needed basis (the “Consulting Services”), subject to
reasonable consideration of his other professional obligations. In particular,
Consultant shall provide consulting, business development and similar services
of a non-operating nature relating to the Company’s strategic plan and vision,
identifying market opportunities, assisting with major customers and investor
relations and advising on product development. Consultant shall furnish the
equipment, supplies and other materials used to perform the Consulting
Services. It is expected that the Consulting Services will require, on average,
fifteen (15) hours per week. During the Term, Consultant shall not communicate
with, or travel to meet with, the Company’s employees, customers, suppliers or
other third parties regarding the Company or its business activities unless
directed or authorized to do so by the Chief Executive Officer and shall refer
any unsolicited telephone, written or other inquiries related to the Company or
its business activities to the Chief Executive Officer. During the first six (6)
months of the Term, the Company shall provide Consultant with an office at the
Company’s headquarters as selected by the Company and at no cost to Consultant,
but Consultant shall be permitted to perform the Consulting Service at a
location or locations of his choice. Upon and following the first six (6)
months of the Term, the Company may determine to cease such office arrangement
by providing thirty (30) days’ advance written notice to Consultant.
3
SECTION 5. CONSULTING FEES; OUTSTANDING EQUITY; HEALTH BENEFITS; BUSINESS
EXPENSES:
(a) Consulting Fee. During the Term, the Company shall pay Consultant, and
Consultant hereby agrees to accept as payment for all consulting services
rendered hereunder, an annual consulting fee of $650,000 (the “Consulting Fee”),
payable in substantially equal monthly installments during the Term, in arrears.
(b) Treatment of Outstanding Equity. The change in Consultant’s status to an
independent contractor shall not be a “termination” for purposes of Consultant’s
compensatory equity awards outstanding as of the Effective Date, but the
termination of this Agreement shall constitute a “termination” for such
purposes. Such awards (as set forth on Exhibit A hereto) shall remain
outstanding and shall continue to vest and be earned during the Term in
accordance with the terms and conditions of the applicable equity plan and award
agreements, including vesting provisions related to a change in control of the
Company.
(c) Health Benefits. During the Term, Consultant and his eligible dependents
shall be eligible to continue to participate in the Company’s healthcare plan at
his own expense. The obligations of the Company under this Section 5(c) shall
terminate if, at any time during the Term, Consultant is employed or is
otherwise affiliated with a party that offers substantially similar healthcare
benefits to Consultant and his eligible dependents. Following the end of the
Term, to the extent permitted by applicable law, Consultant shall be eligible to
elect continued health coverage pursuant to the Section 4980B of the Internal
4
(d) Business Expenses. The Company shall reimburse Consultant for reasonable
out-of-pocket business expenses incurred by Consultant in performing the
Consulting Services in accordance with the applicable expense reimbursement
policies of the Company as in effect from time to time. Consultant shall be
subject to the executive travel policy in effect at the Company from time to
time (as if he were a senior executive officer of the Company and, which as of
the Effective Date, includes first class air travel) if traveling on behalf of
the Company. In addition, the Company will reimburse Consultant for all
reasonable fees incurred by Consultant in connection with the negotiation and
entry into this Agreement, subject to the Company’s requirements with respect to
reporting and documenting of such expenses, not to exceed $15,000.
(e) Modified Cutback. The provisions of Section 8(i) of the Prior Agreement
(Modified Cutback) shall continue to apply to any payments, benefits or
distributions provided to Consultant, to the extent applicable.
(f) Club Membership. The membership in the East Lake Country Club shall be
transferred to Consultant effective as of the Effective Date (or as soon as
practicable thereafter) and Consultant shall continue to pay the dues for such
membership and all incidental expenses incurred at such club so long as he
continues such membership.
(g) No Mitigation. Consultant shall not be required to mitigate the amount of
any payments provided for pursuant to this Agreement and the amount of any
payments under this Agreement shall not be reduced by any amounts Consultant may
earn from other employment or consulting services he may render to a third
party.
5
SECTION 6. INDEPENDENT CONTRACTOR STATUS: Consultant agrees, acknowledges and
represents that Consultant is an independent contractor performing work for the
Company, not an agent, servant, director, or employee of, or joint venturer
with, the Company, and has no authority to bind the Company or any of its
subsidiaries or affiliates by contract or otherwise or hold himself out as
having such authority. Consultant will perform the Consulting Services under
Consultant’s sole discretion, the manner and means by which the Consulting
Services are accomplished, subject to the requirement that Consultant shall at
all times comply with applicable law and all policies and rules established by
the Company for its independent contractors. The Company will have no right or
authorization to control the means by or manner in which the Consulting Services
are accomplished. Except as otherwise provided herein, Consultant will not be
entitled to receive any vacation or illness payments, or to participate in any
benefit plans or arrangements maintained by the Company or any of its
subsidiaries or affiliates for the benefit of their employees, including,
without limitation, any bonus, stock option, pension, profit sharing, medical,
dental, disability or life insurance or similar benefits provided to employees
of the Company and its subsidiaries or affiliates. In the event that this
arrangement is reclassified as employment by any governmental agency or court,
Consultant further agrees that he will not seek to participate in or benefit
from any of the employee benefit plans or programs of the Company as a result of
such reclassification. Consultant shall have no state law workers’ compensation
rights with respect to the Consulting Services under this Agreement.
SECTION 7. TAXES: Consultant shall be solely responsible for the payment of any
Federal, state and local income or self-employment taxes applicable to the fees
and expenses paid or payable by the Company in connection with Consultant’s
engagement and will report as income all compensation received by Consultant
pursuant to this Agreement. Consultant agrees that, during and after the Term,
Consultant will indemnify, defend and hold the Company harmless from all taxes,
interest, penalties, damages, liabilities, losses and expenses, including
reasonable legal fees and expenses of attorneys and other professionals, arising
from Consultant’s failure or alleged failure to make the required reports and
payments for applicable taxes. In addition, during and after the Term,
Consultant will indemnify, defend and hold the Company harmless with respect to
any amounts that Consultant may be required to pay to any taxing authority as
required withholding or the employer portion of any employment taxes due as a
result of any claim by such taxing authority that Consultant was an employee of
the Company, but only to the extent Consultant has not paid his withholding
amounts or has received a refund of such amounts, and shall not include any
interest or penalties that may be assessed on the Company.
6
SECTION 8. EARLY TERMINATION OF TERM:
(a) Termination Events. Consultant’s engagement hereunder may be terminated
(i) Each of the Company and Consultant shall have the right to terminate
Consultant’s engagement hereunder prior to the expiration of the Term upon
written notice to Consultant or the Company, as applicable, with any such
termination being effective, except as otherwise expressly set forth herein in
the event of a termination for Cause, with thirty (30) days’ advance written
notice.
(ii) If Consultant accepts a full-time employment position with another entity
that does not violate the terms of Section 10, Consultant shall promptly provide
written notice of such acceptance to the Company and Consultant’s engagement
hereunder shall terminate effective on the thirtieth (30th) day following the
delivery of such written notice (or such other date as mutually agreed with the
Company).
(iii) The Company shall have the right to terminate Consultant’s engagement
hereunder for Cause prior to the expiration of the Term effective immediately,
subject to any cure right. Consultant shall have the right to terminate
Consultant’s engagement hereunder for “Good Reason” following a material breach
of this Agreement by the Company. To terminate his engagement hereunder for
Good Reason, Consultant shall provide written notice to the Company within
thirty (30) days following his knowledge of a material breach of this Agreement
by the Company and, if the Company has not cured such material breach within
thirty (30) days following such notice, Consultant may terminate his engagement
hereunder within thirty (30) days following such failure to cure by providing
(iv) Consultant’s engagement hereunder shall terminate on the date of
Consultant’s death, in the event that Consultant suffers a disability which
prevents Consultant from performing his duties hereunder (“Disability”) or as
7
(b) Payments upon Termination. Upon any termination of Consultant’s engagement
hereunder, Consultant shall be entitled to receive the following payments (in
addition to any accrued expenses):
(i) If such termination results from (i) Consultant’s Disability or death,
(ii) written notice by the Company other than for Cause, or (iii) a Good Reason
termination by Consultant, the Company shall (x) continue to pay to Consultant
(or to his spouse or remaining beneficiaries) the remaining Consulting Fees
through the end of the scheduled Term, in the amounts and at the times set forth
in Section 5(a), (y) permit Consultant (and his eligible dependents) to continue
the health insurance arrangements set forth in Section 5(c) through the end of
the scheduled Term and (z) provide for (1) other than in the case of
Consultant’s death, vesting and payment of all outstanding time-based vesting
equity awards (including any performance-based vesting equity awards for which
the applicable performance period has ended as of the date of such termination)
held by Consultant and (2) any performance-based vesting equity awards for which
the performance period has not ended as of the date of such termination held by
Consultant to remain outstanding and eligible to be earned and settled in
accordance with the terms of the underlying award agreement.
(ii) If such termination results from written notice by the Company for Cause or
a voluntary termination without Good Reason by Consultant, Consultant shall not
be entitled to any further Consulting Fees; provided, that, Consultant shall
receive payment for any accrued, but unpaid, Consulting Fees and such amounts
shall be payable within ten (10) days following termination.
For purposes of this Agreement, “Cause” shall mean: (i) the indictment of
Consultant for a felony or fraud which, in the good faith opinion of the Board,
is reasonably likely to result in a conviction of, or entering into a plea of
guilty or nolo contendere by, Consultant; (ii) gross negligence or willful
misconduct by Consultant with respect to the Company or any of its subsidiaries
or affiliates, which could reasonably be expected to be materially injurious to
any of such entities; (iii) Consultant’s willful violation of Section 9,
Section 10 or Section 13 of this Agreement; (iv) Consultant’s willful breach of
a material policy of the Company to which Consultant is subject, which is not
cured within twenty (20) days after written notice thereof to Consultant;
(v) any other breach by Consultant of any material provision of this Agreement
which is not cured within twenty (20) days after written notice thereof to
Consultant; or (vi) Consultant’s willful and continued failure or refusal to
perform in any material respect the Consulting Services which is not cured
within twenty (20) days after written notice thereof to Consultant. For
purposes of this definition of Cause, no act or failure to act on the part of
by Consultant in good faith and with a good faith belief that Consultant’s act
8
SECTION 9. STANDSTILL AGREEMENT: During the Restricted Period (as defined in
Section 10 below), or if earlier, until six (6) months following a Change in
Control of the Company (as defined below), Consultant shall not, directly or
indirectly:
(a) solicit proxies or written consents of stockholders or conduct any other
of, the Voting Securities (as defined below), or become a “participant” (as such
term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the
any person or entity not a party to this Agreement (a “Third Party”) in any
defined under the Exchange Act) to vote any shares of the Voting Securities
(other than such encouragement, advice or influence that is consistent with
Company management’s recommendation in connection with such matter);
(b) encourage, advise or influence any other person or assist any Third Party in
so encouraging, assisting or influencing any person with respect to the giving
matter);
9
(c) form or join in a partnership, limited partnership, syndicate or other
with respect to the Voting Securities;
(d) present at any annual meeting or any special meeting of the Company’s
the removal of any member of the Board or propose any nominee for election to
the Board or seek representation on the Board;
(e) grant any proxy, consent or other authority to vote with respect to any
for any annual meeting or any special meeting of the Company’s stockholders) or
deposit any Voting Securities of the Company in a voting trust or subject them
to a voting agreement or other arrangement of similar effect with respect to any
annual meeting or any special meeting of the Company’s stockholders or action by
written consent (excluding customary brokerage accounts, margin accounts, prime
brokerage accounts and the like);
(f) without the prior written approval of the Board, separately or in
conjunction with any other person or entity in which it is or proposes to be
as broker or agent for compensation, propose (publicly, privately or to the
Company) or effect any tender offer or exchange offer, merger, acquisition,
reorganization, restructuring, recapitalization or other business combination
involving the Company or a material amount of the assets or businesses of the
Company or actively encourage, initiate, support, consult with or advise any
other Third Party in any such activity;
(g) purchase or cause to be purchased or otherwise acquire or agree to acquire
Beneficial Ownership of any Voting Securities, if in any such case, immediately
after the taking of such action, Consultant would, in the aggregate,
collectively beneficially own, or have an economic interest in, an amount that
would exceed 4.99% of the then outstanding shares of Common Stock; or
10
(h) enter into any discussions, negotiations, agreements, arrangements or
this Section 9.
or other contingencies. As used in this Agreement, the term “Beneficial
Ownership of any Voting Securities” means ownership of: (i) Voting Securities
and (ii) rights or options to own or acquire any Voting Securities (whether such
right or option is exercisable immediately or only after the passage of time or
control of such person), compliance with regulatory requirements or
otherwise). As used in this Section 9, the term “Change in Control” means a
change in ownership or control of the Company approved by the Incumbent Board in
advance and effected through a transaction or series of transactions (other than
14(d)(2) of the Securities Exchange Act), other than any affiliate of the
Company, or an employee benefit plan maintained by the Company or any of its
affiliates, directly or indirectly acquires “beneficial ownership” (within the
meaning of Rule 13d-3 under the Securities Exchange Act) of securities of the
acquisition. As used in this Section 9, the term “Incumbent Board” means the
individuals who, as of the Effective Date, constitute the Board.
SECTION 10. CONTINUING OBLIGATIONS: Consultant acknowledges and agrees that the
execution of this Agreement does not alter his obligations to the Company or its
subsidiaries and affiliates under the provisions of Section 10 (Restricted
Covenants) or the Company’s rights under Section 11 (Breach of Restrictive
Covenants) of the Prior Agreement; provided, however, that the “Restricted
thirty-six (36) month anniversary of the Effective Date. Upon the end of
Consultant’s engagement hereunder, Consultant agrees to promptly return to the
Company all property belonging to the Company and its subsidiaries and
affiliates, including but not limited to all proprietary and/or confidential
to the Company; provided, however, that Consultant shall be entitled to retain
(i) his Company-issued mobile devices provided that he first tenders the device
to the Company to have all proprietary and/or confidential information removed,
(ii) his contacts, calendars and personal diaries, (iii) his
compensation-related data and materials and (iv) all information reasonably
necessary for tax-preparation purposes.
11
SECTION 11. NON-DISPARAGEMENT: Consultant agrees that he will make no
disparaging or defamatory comments regarding the Company or any of its
directors, officers, or, in their capacities as such, employees in any
respect. The Company agrees not to issue any public statements or press
releases making, and to instruct members of the Board and the executive officers
of the Company to not make and, upon learning of any action taken to the
contrary, shall take reasonable steps to cause each such person to cease making
any disparaging or defamatory comments regarding Consultant in any respect. This
Section 11 shall not prevent the truthful testimony by any individual or entity
in a legal proceeding or pursuant to a governmental, administrative or
regulatory investigation.
SECTION 12. INDEMNIFICATION: The Company agrees to indemnify and hold
Consultant harmless with respect to all acts or omissions in his position as a
consultant (other than any act or omission that is otherwise a breach of this
Agreement) to the fullest extent permitted by the laws of the State of Delaware,
SECTION 13. CERTIFICATIONS: In order to enable the principal executive
officer(s) and principal financial officer(s) (as such terms are defined in the
rules and regulations of the U.S. Securities and Exchange Commission) of the
Company to make any certifications required of them under Section 302 or 906 of
the Sarbanes-Oxley Act of 2002 with respect to the Company’s Annual Report on
Form 10-K to be filed with respect to the 2014 fiscal year, Consultant will,
within a reasonable period of time following a request from the Company in
anticipation of filing such report, provide the Company with certifications in
support of the certifications of the Company’s principal executive officer(s)
and principal financial officer(s) required of them under Section 302 or 906 of
the Sarbanes-Oxley Act of 2002, in a form reasonably acceptable to the
Company. The Company will provide Consultant with a reasonable opportunity to
review the underlying documents prior to the time he is required to provide the
certifications in accordance with the prior sentence.
12
SECTION 14. SUCCESSORS: This Agreement shall inure to the benefit of and be
binding upon the Company, its successors and assigns, including any successor by
operation of law or otherwise; and as used herein, the term “Company” shall
include such successors or assigns.
and agreement of the parties hereto regarding the retention of
Consultant. Except as specifically provided in this Agreement, this Agreement
SECTION 16. WAIVER AND AMENDMENTS: Any waiver, alteration, amendment, or
SECTION 17. SEVERABILITY: If any covenants or such other provisions of this
SECTION 18. NOTICE:
13
all notices and communications by Consultant to the Company shall be mailed or
communications by the Company to Consultant may be given to Consultant
personally or may be mailed to Consultant at Consultant’s last known address, as
SECTION 19. APPLICABLE LAW: THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF GEORGIA (WITHOUT GIVING EFFECT TO
THE CHOICE OF LAW PRINCIPLES THEREOF) APPLICABLE TO CONTRACTS MADE AND TO BE
PERFORMED ENTIRELY WITHIN SUCH STATE. All actions and proceedings arising out of
or relating to this Agreement shall be heard and determined in any Georgia state
or federal court sitting in the state of Georgia, and the parties hereto hereby
consent to the jurisdiction of such courts in any such action or proceeding.
SECTION 20. SECTION HEADINGS: The headings of the sections and subsections of
14
SECTION 21. SECTION 409A: To the extent applicable, it is intended that the
compensation arrangements under this Agreement be in full compliance
applicable regulations thereunder (“Section 409A”). This Agreement shall be
construed in a manner to give effect to such intention. Each payment in a
purposes of Section 409A. Notwithstanding anything contained herein to the
six-month period immediately following the termination of Consultant’s
engagement hereunder shall instead be paid or provided on the first business day
after the date that is six (6) months following the termination of Consultant’s
engagement hereunder (or, if earlier, the Executive’s date of death). To the
the taxable year in which such expense was incurred by Consultant, (ii) the
SECTION 22. COUNTERPARTS: This Agreement may be executed in two (2) or more
Agreement may be by actual signature or by signature delivered by facsimile or
by e-mail as a portable document format (.pdf) file or image file attachment.
* * *
15
MEDASSETS, INC.
JOHN A. BARDIS
/s/ John A. Bardis
Consultant
[Signature Page to J. Bardis Transition and Consulting Agreement]
Exhibit A
Schedule of Outstanding Equity Awards
(As of February 17, 2015)
Vesting Schedule
Award Number
Award Date
Award Type
Awarded
Earned
Vested
Unvested
Cancelled
558
25-Feb-2013
PSS
31,493
19,883
6,627
13,256
11,610
6,628
6,628
—
370
PSS
31,493
17,953
5,984
11,969
13,540
5,985
5,985
—
295
RSS
20,995
NA
6,998
13,997
0
6,999
6,999
—
791
27-Feb-2014
RSU
30,397
NA
0
30,397
0
10,132
10,132
10,132
1190
PSU
45,595
31,916
0
31,916.50
13,678.50
10,639
10,639
10,639
1183
PSU
45,595
23,344.64
0
23,344.64
22,250.36
7,782
7,782
7,782
1400
12-May-2014
PSU
100,000
TBD*
0
100,000
0
—
—
100,000
Total
305,568
19,609
224,880.14
61,078.86
48,164
48,164
128,553
* Earning and vesting subject to 3 year performance targets as defined in
Consultant’s May 2014 grant agreement.
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Title: (CT) Landlord's admin trying to enforce a different rent due date than lease
Question:First time posting here so not sure of standard format- apologies if it's off...
My boyfriend and I signed a lease for an apartment in September with an October 1st move in. Unfortunately, shortly after signing his mother's health took a turn for the worse so the move got put on the back burner among other things. Basically I have taken the whole move on myself so it is going slow and I haven't spent a ton of time focusing on it.
Now we both have lived on our own, but this is the first rental for us both entirely on our own so we are not familiar with the details of a typical lease. This is why I never thought twice when it said the 15th as the due date for each months rent with a ten day grace period ending on the 25th. After which, a $150 fee would be charged.
Fast forward to this week when I finally turn my thoughts to paying our first rent bill since the original payment/deposit. I looked at our invoice and noticed it said November 1 as the due date. I emailed the admin who sent the invoice asking if there was a misunderstanding. Her response that she was sorry but clearly there was a typo in the lease and that our rent was due on the 1st and after the 10th we would be charged the fee.
Our lease was signed and executed with the 15th and 25th literally spelt out as the due date and deadline. I know that the lease should stand and I emailed the admin back with the attached lease pretty much saying that for this month we needed to stick to the lease, but would be willing to sign an amended lease for December on. That was two days ago and I have not heard back since. My questions are: Can they legally charge us the late fee after the 10th? Is it easy enough/likely that they will issue an amended lease and if so what is that process like? Is there anything we should look out for and can we get screwed over in this process? Whatever advice can be offered is welcome here. We are so up to our knees in shit from dealing with an ongoing family tragedy that we do not have much energy to deal with more.
Topic:
Landlord Tenant Housing
Answer #1: The wording in the lease controls. They should know that they can't charge late fees before the lease says they can.
You might offer to agree to amend the lease (for their convenience - I assume they want people to be on the same schedule) if they waive this late fee. But if push comes to shove (i.e. court) the late fee won't be considered legitimate and you don't have to do this.
>Is it easy enough/likely that they will issue an amended lease and if so what is that process like
They can't "issue" an amended lease. They need to get you to agree to it.Answer #2: No, they cannot change those dates unilaterally. You have to agree to lease amendments. If they tried to use failure to pay the late fee as grounds for eviction they would lose.
I think you're doing the right thing by offering to amend it going forward. No sense in starting a hostile relationship with your landlord, but you shouldn't let yourself be taken advantage of and eat a late payment you shouldn't owe. Answer #3: It's not a typo. You don't mistake '15' for '1' or '25' for '11'. The lease controls. If it says 15th/25th, that's when rent is due.
They can't charge you a late fee, and if they cause a stink you just need to remember that any attempt to charge you will eventually end up in front of a judge, and judges can generally read.
Oh, and amending or altering a lease is easy. It's just a one sheet bit of paper that says "Paragraph X of the lease between parties starting on DATE is changed to read: Due date, late date." with a spot for everyone to sign. |
EXHIBIT 10.4
ASTRONICS CORPORATION
2001 STOCK OPTION PLAN
I. PURPOSE
The purpose of the 2001 Stock Option Plan (the “Plan”) of ASTRONICS
CORPORATION, a New York corporation (the “Company”), is to enable the Company to
attract, retain, and motivate key employees responsible for the success and
growth of the Company by offering selected officers and other key employees of
the Company and its Subsidiaries an opportunity to purchase Shares of Company
Stock. The Plan provides for the grant of Options to purchase Shares. Options
granted under the Plan may include Non-Qualified Stock Options (“NQSOs”) as well
as options that are intended to qualify as Incentive Stock Options (“ISOs”)
Certain capitalized terms used in this Plan are defined in Section 2.
II. DEFINITIONS
b. “Committee” means the Stock Option Committee of the Board, consisting of at
least 2 Directors who are not eligible to participate in the Plan and who are
appointed to the Committee by the Board.
c. “Director” means a member of the Board.
d. “Exercise Price” means the amount for which one Share may be purchased when
an Option is exercised, as specified by the Committee in the applicable Stock
Option Agreement.
e. “Option” means an ISO or NQSO granted under the Plan that entitles the holder
to purchase Shares.
f. “Optionee” means a person who holds an Option.
g. “Share” means a share of Stock issuable when an Option is exercised, as
adjusted in accordance with Section 8 (if applicable).
h. “Stock” means the Common Stock or Class B Stock of the Company.
i. “Stock Option Agreement” means the agreement or other instrument between the
Company and an Optionee that evidences and sets forth the terms, conditions and
j. “Subsidiary” means any corporation (other than the Company) in an unbroken
other corporations in the chain. A corporation that attains the status of a
Subsidiary on a date after the adoption of the Plan will be considered a
Subsidiary commencing as of the date.
III. ADMINISTRATION
a. Stock Option Committee. The Plan will be administered by the Committee.
Subject to and not inconsistent with the provisions of the Plan, the Committee
has the full authority and responsibility to administer the Plan and to exercise
or necessary or advisable in the administration of the Plan, including the power
to:
i. Determine and designate those employees selected to receive
Options, the time at which each Option will be granted, and the number of Shares
subject to each Option;
1
ii. Determine the time and manner of exercise, the duration of the
exercise periods, and the exercise price of the Options granted;
iii. Prescribe, amend, or rescind any rules and regulations necessary
or appropriate for the administration of the Plan;
iv. Correct any defect, supply any deficiency, and reconcile any
inconsistency in the Plan or in any related Option or agreement; and
v. Make other determinations and take such other action in connection
with the administration of the Plan as it deems necessary or advisable.
b. Delegation of Duties. The Committee may direct appropriate officers of the
Company to implement its rules, regulations and determinations and to execute
and deliver on behalf of the Company such documents, forms, agreements and other
instruments as are deemed by the Committee to be necessary for the
c. Interpretation of Plan. The Committee has the power to interpret and construe
the Plan and all related Options and agreements. All decisions, interpretations
and determinations of the Committee with respect to the Plan will be final and
binding on all Optionees and all persons deriving their rights from Optionees.
d. Indemnification. Each member of the Board and the Committee is indemnified
and held harmless by the Company against any cost or expense (including any sum
any act or omission to act in connection with the Plan to the extent permitted
by applicable law. This indemnification is in addition to any rights of
indemnification a member may have as a Director or otherwise under the by-laws
of the Company or a Subsidiary, any agreement, any vote of shareholders or
IV. ELIGIBILITY
a. General Rule. Options may be granted to full-time salaried officers and key
b. Ten-PercentStockholders. An individual who owns more than 10% of the total
of its Subsidiaries (as determined in accordance with Section 424(d) of the
Code) will not be eligible for the grant of an ISO unless (i) the Exercise Price
(ii) the Option by its terms is not exercisable after the expiration of 5 years
V. STOCK SUBJECT TO PLAN
a. Basic Limitation. The aggregate number of Shares that may be issued under the
Plan on exercise of Options may not exceed 800,000 Shares, subject to adjustment
as provided in Section 8. Shares offered under the Plan may be authorized but
unissued Shares or Shares reacquired by the Company (“Treasury Shares”). The
number of Shares that are subject to Options outstanding at any time under the
Plan must not exceed the number of Shares that then remain available for
issuance under the Plan. The Company, during the term of the Plan, at all times
will reserve and keep available sufficient Shares to satisfy the requirements of
the Plan.
b. Additional Shares. If any outstanding Option expires, is canceled or
otherwise terminates for any reason, the Shares allocable to the unexercised
portion of that Option will be available again for purposes of the Plan. If
Shares issued under the Plan are reacquired by the Company, those Shares will be
available again for purposes of the Plan.
a. Stock Option Agreement. Each grant of an Option under the Plan will be
Option will be subject to terms and conditions that are consistent with the Plan
and that the Board deems appropriate for inclusion in a Stock Option Agreement.
The provisions of Stock Option Agreements entered into under the Plan need not
be identical.
b. Number of Shares. Each Stock Option Agreement will specify the number of
Shares that are subject to the Option and will provide for the adjustment of
that number in accordance with Section 8. The Stock Option Agreement also will
specify whether the
2
Option is an ISO or NQSO. However, if any portion of an Option does not meet the
requirements to qualify as an ISO, that portion will be a NQSO.
c. Exercise Price. Each Stock Option Agreement will specify the Exercise Price.
The Exercise Price under any Option will be determined by the Committee in its
sole discretion, except that the Exercise Price may not be less than 100% of the
Fair Market Value of a Share on the date of grant, and any higher percentage
required by Section 4(b).
For purposes of the Plan, “Fair Market Value” will be determined in the
following manner:
If the Shares are listed or admitted to trading on a nationally recognized
U.S. securities exchange or the National Association of Securities Dealers
Automated Quotation System (“NASDAQ”), the Fair Market Value will be determined
with reference to the closing price of a Share on such exchange or on NASDAQ as
of the last trading day prior to the date of grant.
If the Fair Market Value cannot be established under the provisions of
subsection (i) above, the Fair Market Value will be determined by the Board,
acting in good faith on the basis of such information as they, in their
reasonable judgment, consider appropriate. The determination of the Board will
d. Limitation on Amount. The aggregate Fair Market Value (determined with
respect to each ISO as of the time the ISO is granted) of the Stock with respect
calendar year (under this Plan or any other ISO plan of the Company or any
Subsidiary) may not exceed $100,000.
e. Withholding Taxes. As a condition to the exercise of an Option, the Optionee
will make such arrangements as the Committee may require for the satisfaction of
any withholding tax obligations that may arise in connection with the exercise.
Subject to Section 7(b), the Optionee may pay any or all required withholding
taxes by delivering to the Company shares of Stock already owned. The Company
may authorize the Optionee to pay any or all required withholding taxes by
directing that Shares otherwise deliverable upon exercise of the Option be
withheld.
The Optionee also will make such arrangements as the Committee may require
for the satisfaction of any withholding tax obligations that may arise in
Subject to Section 7(b), the Optionee may pay any or all such required
withholding taxes by delivering to the Company shares of Stock already owned.
f. Exercisability. Each Stock Option Agreement will specify when all or any
installment of the Option becomes exercisable. The exercisability provisions of
any Stock Option Agreement will be determined by the Committee in its sole
discretion.
g. Accelerated Excercisability. Unless the applicable Stock Option Agreement
provides otherwise, all of an Optionee’s Options will become exercisable in full
upon the Optionee’s termination of employment due to retirement on or after the
Optionee’s attainment of age 65 with 15 years of service with the Company or a
Subsidiary. Unless the applicable Stock Option Agreement provides otherwise or
the next sentence applies, all of an Optionee’s Options may become exercisable
in full, in the sole discretion of the Committee, if the Company is subject to a
Change in Control before the Optionee’s employment terminates. If the Company
that the transaction is to be treated as a “pooling of interests” for financial
reporting purposes, and if the transaction in fact is so treated, then the
accelleration of exercisability will not occur to the extent that the Company’s
independent public accounts determine in good faith that the acceleration would
For purposes of the Plan, “Change in Control” means:
i. The consummation of a merger or consolidation of the Company with or into
outstanding immediately after the merger, consolidation or other reorganization
to the merger, consolidation or other reorganization; or
ii. The sale, transfer or other disposition of all or substantially all of the
Company’s assets.
who held the Company’s securities immediately before the transaction or if it is
a Designated Exchange Transaction. A “Designated Exchange Transaction” is
3
any reorganization, share exchange or other transaction so designated by the
Board, following the occurrence of which (i) the Options remain outstanding or
(ii) the Options are assumed by a surviving or new corporation and new options
with substantially the same terms are substituted.
h. Basic Term. The Stock Option Agreement will specify the term of the Option.
The Committee, in its sole discretion, will determine when an Option is to
expire, except that the term may not exceed 10 years from the date of grant, and
any shorter term required by Section 4(b).
i. Nontransferability. No Option may be transferred by the Optionee other than
by beneficiary designation, will or the laws of descent and distribution, except
as may otherwise be determined by the Board with respect to NQSOs only. An
or by the Optionee’s guardian or legal representative or, with respect to NQSOs
only, by any permitted transferee of the Optionee or by that permitted
transferee’s guardian or legal representative. No Option or interest in it may
be pledged or hypothecated by the Optionee during the Optionee’s lifetime,
j. Termination of Employment (Except by Death). If an Optionee’s employment
Options will expire on the earliest of the following:
i. The expiration date determined pursuant to subsection (h) above;
ii. The date 90 days after the termination of the Optionee’s employment for
any reason other than Cause or permanent disability within the meaning of
Section 22(e)(3) of the Code (“Disability”);
iii. The date of the termination of the Optionee’s employment for Cause; or
iv. The date 12 months after the termination of the Optionee’s employment
by reason of Disability.
Notwithstanding the provisions of subsection (j)(ii) above, and subject to
subsection (h), the Committee in its sole discretion, may permit an Optionee to
exercise his or her Options on a date more than 90 days after the termination of
the Optionee’s employment for reasons other than Cause, Disability or Death. If
the Option is exercised after that date, the exercised Option may not qualify
for favorable tax treatment as an ISO. For purposes of the Plan, “Cause” means
secrets of the Company, (ii) conviction of, or a plea of “guilty” or “no
(iii) negligence or misconduct in the performance of Optionee’s duties or (iv)
material breach of Optionee’s obligations under any agreement or arrangement
with the Company, a Subsidiary or any affiliate thereof (including under the
terms of any loan made to the Optionee).
before the expiration of the Options under this subsection, but only to the
extent that the Options had become exercisable before the Optionee’s employment
terminated (or became exercisable as a result of the termination). If the
Optionee dies after termination of employment but before the expiration of the
Optionee’s Options, all or part of the Options may be exercised (prior to
any person who has acquired the Options directly from the Optionee by
beneficiary designation, bequest or inheritance, or in the case of NQSOs only,
by other transfer, if permitted, but in any event only to the extent that the
Options had become exercisable before the Optionee’s employment terminated (or
became exercisable as a result of the termination).
k. Leaves of Absence. For purposes of subsection (j) above, a bona fide leave of
absence will not be deemed a termination of employment if the leave was approved
by the Company in writing and if continued crediting of service for this purpose
is expressly required by the terms of the leave or by applicable law (as
l. Death of Optionee. If an Optionee dies while employed by the Company, then
his or her Options expire on the earlier of the following dates:
i. The expiration date determined pursuant to subsection (h) above; or
ii. The date 12 months after the Optionee’s death.
4
At any time before the expiration of the Options under the preceding
sentence, all or part of the Optionee’s Options may be exercised by the
acquired the Options directly from the Optionee by beneficiary designation,
bequest or inheritance, or in the case of NQSOs only, by other transfer, if
permitted, but in any event only to the extent that the Options had become
exercisable before the Optionee’s death or became exercisable as a result of
death.
m. No Rights as a Stockholder. An Optionee, or a transferee of an Optionee, has
no rights as a stockholder with respect to any Shares covered by an Option until
the person becomes entitled to receive the Shares by filing a notice of exercise
n. Modification, Extension and Assumption of Options. Within the limitations of
the Plan, the Committee may modify or extend outstanding Options. However,
without the consent of the Optionee, no modification may impair the Optionee’s
rights or increase the Optionee’s obligations under the Option.
o. Restrictions on Transfer of Shares. Any Shares issued on exercise of an
Option will be subject to such special forfeiture conditions, rights of
Committee may determine. The restrictions will be set forth in the applicable
Stock Option Agreement and will apply in addition to any restrictions that may
apply to holders of Shares generally. The Company will be under no obligation to
sell or deliver Shares on exercise of Options under the Plan unless the Optionee
executes an agreement giving effect to the restrictions in the form prescribed
by the Company.
p. Additional Grants. If otherwise eligible, an Optionee may be granted an
additional Option or Options under this Plan or any other share option or
purchase plan of the Company.
q. Cancellation and New Options. The Committee has the authority to grant to the
of that Option, a new Option having a purchase price lower than provided in the
Option surrendered and canceled and containing other terms and conditions as the
Committee may prescribe in accordance with the provisions of the Plan.
VII. PAYMENT FOR SHARES
a. General Rule. The entire Exercise Price of Shares issued under the Plan is
payable in cash or cash equivalents when the Shares are purchased, except as
b. Surrender of Stock. To the extent a Stock Option Agreement so provides, all
or any part of the Exercise Price, plus the amount of any withholding taxes for
which such payment is permitted by the Company, may be paid by surrendering, or
attesting to the ownership of, Shares that are already owned by the Optionee and
that are acceptable to the Committee. These Shares will be surrendered to the
Company in good form for transfer and will be valued at their Fair Market Value
on the date the Option is exercised. Unless the Committee otherwise determines,
the Optionee will not surrender, or attest to the ownership of, Shares in
payment of the Exercise Price or any withholding taxes if that action would
c. Exercise/Sale. To the extent that a Stock Option Agreement so provides, and
if the Stock is publicly traded, payment may be made all or in part by the
securities broker approved by the Company to sell the Shares and to deliver all
d. Exercise/Pledge. To the extent that a Stock Option Agreement so provides, and
pledge the Shares to a securities broker or lender approved by the Company, as
taxes.
VIII. ADJUSTMENT OF SHARES
a. General. If the outside shares of Stock of the Company are increased,
securities of the Company through a reorganization, recapitalization,
similar transaction, the Committee will make such appropriate and proportionate
adjustments as
5
it deems necessary or appropriate in one or more of (i) the number of Shares
specified in Section 5, (ii) the number of Shares covered by each outstanding
merger or consolidation, the Board may provide that outstanding Options will be
subject to the agreement of merger or consolidation, which agreement, without
the Optionees’ consent, may provide for the cancellation of each outstanding
Option after payment to the Optionee of an amount in cash or cash equivalents
equal to (i) the Fair Market Value of the Shares subject to the Option at the
time of the merger or consolidation minus (ii) the Exercise Price of the Shares
c. Reservation of Rights. Except as provided in this Section, an Optionee has no
of stock of any class, will not affect the number or Exercise Price of Shares
subject to an Option. The grant of an Option will not affect in any way the
business or assets.
IX. SECURITIES LAW REQUIREMENTS
Shares may not be issued under the Plan unless the issuance and delivery of
these Shares comply with (or are exempt from) all applicable requirements of
“Securities Act”), the rules and regulations promulgated under it, state
other securities market on which the Company’s securities then may be traded.
X. NO RETENTION RIGHTS
Nothing in the Plan or in any Option granted under the Plan will confer on
the Optionee any right to continue in the employ of the Company for any period
of time or will interfere with or otherwise restrict the rights of the Company
(or any Subsidiary) or of the Optionee, which rights are expressly reserved by
each, to terminate his or her employment at any time and for any reason.
XI. DURATION AND AMENDMENTS
a. Term of the Plan. Subject to the approval of the Company’s shareholders, the
Plan is effective as of February 15, 2001, the date of its adoption by the
Board. If the shareholders fail to approve the Plan within 12 months after its
adoption by the Board, any grants of Options that have already occurred will be
rescinded, and no additional grants will be made. The Plan will terminate
automatically on February 15, 2011, 10 years after its adoption by the Board,
and may be terminated on any earlier date pursuant to subsection (b) below.
b. Right to Amend or Terminate the Plan. The Board or the Committee may amend,
suspend or terminate the Plan at any time and for any reason. However, any
amendment of the Plan that increases the number of Shares available for issuance
under the Plan (except as provided in Section 8), or that materially changes the
class of persons who are eligible for the grant of Options, is subject to the
approval of the Company’s shareholders. Shareholder approval will not be
required for any other amendment of the Plan.
c. Effect of Amendment or Termination. No Shares will be issued or sold under
the Plan after its termination, except on exercise of an Option granted prior to
the termination. No amendment, suspension, or termination of the Plan will,
without the consent of the holder, alter or impair any rights or obligations
under any Option previously granted under the Plan.
XII. APPLICABLE LAW
The Plan and all Options granted under it will be construed and interpreted
than its laws regarding choice of law.
6 |
EXHIBIT 8.1 DIANE D. DALMY ATTORNEY AT LAW 2 SUITE 32-10B DENVER, COLORADO 80206 303.985.9324 (telephone) 303.988.6954 (fax) November 21, 2012 Homeownusa 112 North Curry Street Carson City, Nevada 90703 Re: Homeownusa Registration Statement on Form S-11 Ladies and Gentlemen: I am acting as tax counsel to Homeownusa, a Nevada corporation (the “Company”), in connection with the registration statement on FormS-11, File No.333-170035, as amended (the “Registration Statement”), filed by the Company with the Securities and Exchange Commission under the Securities Act of 1933, as amended, to register up to 5,000,000 of the Company’s common stock, par value $0.001 per share. This opinion letter is rendered pursuant to Item 16 of FormS-11 and Item 601(b)(8)of Regulation S-K. In preparing this opinion letter, I have reviewed the Company's organizational documents, the Registration Statement and such other documents as I have considered relevant to my analysis. I have also obtained representations as to factual matters made by the Company through a certificate of an officer of the Company (the “Officer’s Certificate”). In my examination of such documents, I have assumed the authenticity of all documents submitted to me as originals, the genuineness of all signatures thereon, the legal capacity of natural persons executing such documents and the conformity to authentic original documents of all documents submitted to me as copies. Homeownusa Page Two November 21, 2012 Further for purposes of my opinion, I have not made an independent investigation of the facts, representations and covenants set forth in the Officer's Certificate, the Registration Statement or in any other document. I have assumed that (i)the factual representations set forth in the Officer’s Certificate and the description of the Company and its proposed activities in the Registration Statement are true, accurate and complete as of the date hereof, and that during its taxable year ending December31, 2013 and subsequent taxable years (which taxable year is currently January 31, however, upon completion of the offering the Company will change its year end to December 31), the Company will operate in a manner that will make the representations contained in the Officer’s Certificate and the description of the Company and its proposed activities in the Registration Statement true for such years, (ii)the Company will not make any amendments to its organizational documents after the date of this opinion that would affect the Company’s qualification as a REIT for any taxable year; (iii)no action will be taken after the date hereof by the Company that would have the effect of altering the facts upon which the opinion set forth below is based; (iv) there have been no changes in the applicable laws of the State of Nevada, the Internal Revenue Code of 1986, as amended (the "Code"), the regulations promulgated thereunder by the Treasury Department (the "Treasury Regulations"), and the interpretations of the Code and the Treasury Regulations by the courts and the Internal Revenue Service (the "IRS"), all as they exist of the date of this opinion. Any material changes, which are made after the date hereof in any of the foregoing bases for my opinion, could affect my conclusion. The opinions expressed herein are given as of the date hereof and are based upon the Code, the U.S. Treasury regulations promulgated thereunder, current administrative positions of the U.S. Internal Revenue Service and existing judicial decisions, any of which could be changed at any time, possibly on a retroactive basis. Any such changes could adversely affect the opinions rendered herein. Moreover, the Company’s status as a real estate investment trust (“REIT”) at any time during such year and subsequent years is dependent upon, among other things, the Company meeting, on an ongoing basis, the requirements of Sections 856 through 860 of the Internal Revenue Code of 1986, as amended (the “Code”), regarding its income, assets, distributions, and diversity of stock ownership. Accordingly, because the Company’s satisfaction of such requirements will depend upon future events, including the final determination of financial and operational results, it is not possible to assure that the Company will satisfy the requirements to qualify as a REIT during any particular taxable year. I have not undertaken to review the Company’s compliance with these requirements on a continuing basis Homeoneusa Page Three November 21, 2012 Based on the foregoing, I am of the opinion that: (i)Commencing with the taxable year ended December 31, 2013 and assuming that the elections and other procedural steps referred to in the Registration Statement are completed by the Company in a timely fashion, the Company will be organized in conformity with the requirements for qualification and taxation as a REIT under the Code, and the Company’s contemplated method of operations will enable it to satisfy the requirements for such qualification commencing with such taxable year; and (ii)The information contained in the Registration Statement under the caption “Federal Income Tax Considerations,” to the extent that it constitutes matters of federal income tax law or legal conclusions, is correct in all material respects. The foregoing opinions are limited to the matters specifically discussed herein, which are the only matters on which the Company has requested my opinion. Other than as expressly stated above, I express no opinion on any issue relating to the Company or to any investment therein. This opinion letter is being furnished to you for submission to the Securities Exchange Commission as an exhibit to the Registration Statement. I hereby consent to the filing of this opinion letter as Exhibit8.1 to the Registration Statement and to the reference to this firm under the caption “Legal Matters” in the prospectus constituting a part of the Registration Statement. In giving this consent, I do not thereby admit that I am an “expert” within the meaning of the Securities Act of 1933, as amended. Sincerely, Diane D. Dalmy
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Exhibit 10.17.22
SECOND AMENDMENT
TO
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
“Amendment”), is made and entered into on the 20th day of October, 2016, to be
effective immediately, by and between OLD DOMINION FREIGHT LINE, INC. (the
Commonwealth of Virginia and having its principal office at Thomasville, North
Carolina, and David S. Congdon (the “Executive”), an individual residing at High
Point, North Carolina.
RECITALS:
Employment Agreement, effective as of June 1, 2008, as amended by that certain
First Amendment to Amended and Restated Employment Agreement, effective as of
November 1, 2012 (the “Amended and Restated Employment Agreement”). The parties
now desire to amend certain provisions of the Amended and Restated Employment
Agreement.
AGREEMENT
1. Section 2.11 of the Amended and Restated Employment Agreement is hereby
“2.11. “Compensation Continuance Termination Event” means the termination of the
Executive’s employment by the Company’s exercise of the Notice Exception, or by
the Company as a result of the Executive’s Total Disability, or by the Executive
for Good Reason, or, in the event the Company gives notice which causes the Term
to be fixed for a definite three-year period in accordance with Section 5.1, the
termination of the Executive’s employment upon expiration of the fixed Term. In
no event shall the termination of the Executive’s employment as a result of his
death or For Cause be treated as a Compensation Continuance Termination Event.”
2. Section 2.19(c) of the Amended and Restated Employment Agreement is hereby
“(c) a material reduction by the Company in the Executive’s base salary
as provided in Section 6.1 or incentive bonus opportunities as provided in
Section 6.3, each as in effect as of the date of this Agreement or as the same
shall be increased from time to time;”
3. Section 4.1 of the Amended and Restated Employment Agreement is hereby
“4.1. Position and Responsibilities. During the Term (as defined in
Sections 2.24 and 5.1), the Executive shall serve as Vice Chairman and Chief
Executive Officer of the Company on the conditions herein provided. The
Executive shall perform such duties as are customarily performed by one holding
the position of Vice Chairman and Chief Executive Officer and shall additionally
time to time by the Company, consistent with his position. The Executive shall
at all times report to the Board.”
4. Section 14.2 of the Amended and Restated Employment Agreement is hereby
“14.2. Confidential Information. The Executive acknowledges that all
Confidential Information has a commercial value in the Company’s Business and is
the sole property of the Company. The Executive agrees that he shall not
disclose or reveal, directly or indirectly, to any unauthorized person any
Confidential Information, and the Executive confirms that such information
constitutes the exclusive property of the Company; provided, however, that
nothing contained in this Agreement shall prohibit the Executive from: (i)
disclosing such information to third parties in furtherance of the interests of
the Company; (ii) disclosing such information to governmental agencies as may be
required by law, without notice to the Company; or (iii) filing a charge or
complaint with, or communicating with any governmental agency or otherwise
participating in any investigation or proceeding that may be conducted by a
governmental agency. This Agreement does not limit the Executive’s right to
receive an award for providing information to any governmental agency.”
5. Section 14.6 is added to the Amended and Restated Employment Agreement
as follows:
“14.6. Defend Trade Secrets Act. Executive acknowledges and agrees that the
Company will prosecute any non-confidential disclosure or misappropriation of
the Company’s trade secrets to the full extent allowed by Federal, State, and
common law. Executive further acknowledges and agrees that Executive has
received and understands the following notice concerning immunity from liability
for confidential disclosure of a trade secret to the government or in a court
filing: Pursuant to the Defend Trade Secrets Act, 18 U.S.C. § 1833, an
State trade secret law for the disclosure of a trade secret that is made (A)(1)
seal. Additionally, an individual suing an employer for retaliation based on the
individual does not disclose the trade secret except pursuant to court order.”
6. Exhibit A to the Amended and Restated Employment Agreement is hereby
7. This Amendment may be executed simultaneously in one or more
8. Except as otherwise provided in this Amendment, the terms and
provisions of the Amended and Restated Employment Agreement shall continue in
effect.
first above written.
EXECUTIVE
David S. Congdon
Name: Greg C. Gantt
Attest:
Name: Ross H. Parr
Title: Secretary
EXHIBIT A
EMPLOYMENT AGREEMENT
than the Termination Compensation and other benefits to which I am or become
entitled under the Agreement); provided, however, that this Release does not
include a waiver of the right to receive an award pursuant to Section 21F of the
Securities Exchange Act of 1934, as amended, or actions brought by me (or my
personal representative) to enforce the terms of this Release, including my
right to the Termination Compensation and other benefits to which I am or become
entitled under the Agreement, or to secure benefits under any other employee
benefit plan or program of the Company of which I am a participant, or to seek
indemnification under the Company’s bylaws or other corporate governance
documents, or to seek worker’s compensation or unemployment compensation
benefits, and this Release does not apply to any rights or claims that I might
have which arise as a result of any conduct that occurs after the date this
Release is signed by me. If I violate the terms of this Release, I agree to pay
the Releasees’ costs and reasonable attorneys’ fees.
the Company.
As provided by law, I have been advised by the Company to carefully consider the
not receive the Termination Compensation described in the Agreement. I further
____________________________________________
Name of Executive:____________________________
Date: _______________________________________
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Exhibit 99.1 NEWS RELEASE Contacts: BIO-key International, Inc. Scott Mahnken 732-359-1113 BIO-key® International, Inc. Reports Q4 2011 and Preliminary First Quarter 2012 Financial Results Wall, NJ, April 16, 2012 – BIO-key International, Inc. (OTCBB: BKYI.OB), a global leader in fingerprint biometric identification solutions and advanced mobile identification technology, today reported financial results for the full year and fourth quarter ended December 31, 2011 and preliminary first quarter 2012 results. Total revenue for the three months ended December 31, 2011 was approximately $545,000, representing a decrease of 3% from the $565,000 reported for the quarter ended December 31, 2010. There was an increase in the service revenues related to custom software and for maintenance and support contracts, which was driven by a mix of new accounts and renewed maintenance agreements from existing customers. The increase was offset by a decrease of core license revenue. BIO-key’s gross margin for the fourth quarter of 2011 was 65% compared to 75% for the same period in 2010, due to costs associated with the custom software revenue. Operating expenses for the fourth quarter of 2011 increased 44%, primarily attributable to the increase of our reserve for doubtful accounts of $386,000 due to a contract whose payments are behind schedule, to approximately $1,324,000 compared to $921,000 in the comparable quarter ended December 31, 2010.Operating loss for the fourth quarter of2011 was ($970,590), compared to operating loss of ($495,078) reported in the quarter ended December 31, 2010. Net loss for the three months ended December 31, 2011 was ($1,003,286) compared to net loss of ($598,322) for the comparable period in 2010.Netloss for the 2010 period included approximately $88,000 in income related to derivative and fair value adjustments that were no longer relevant in 2011. “Our business performance year-over-year was basically flat; however late in the fourth quarter, we saw an increase in the adoption rate of our technology, which is reflected in our first quarter 2012 preliminary results,” stated Mike DePasquale, BIO-key’s CEO.Large technology companies such as IBM and AT&T have publicly stated that passwords no longer meet today’s security requirements and that biometrics will replace them for authentication and secure access to important information.“Our partners are starting to sell biometric technology as part of their standard product offering and our secure, convenient fingerprint option is being selected more frequently than ever before.By refining our sales strategy and increasing our sales headcount in the first quarter of 2012, we are well-positioned to support our partners in selling BIO-key fingerprint technology in greater volumes which we believe will lead to more consistentrevenue growthand profitability going forward,” said DePasquale. According to market research conducted by RNCOS, the biometric industry is forecasted to grow at a rate of 21% through 2014.Today, the majority of the opportunities for biometric technology are within the healthcare industry and government agencies.“There’s a noticeable shift in awareness.This is driven by a need for stronger security, compliance and convenience,” said Scott Mahnken VP Marketing.“We’re seeing an increase in inquiries and our outbound contact team is seeing increasing acceptance when introducing the technology,” added Mahnken Fiscal Year Comparisons Total revenue for the fiscal year ended December 30, 2011 was $3.5 million representing less than 1% decrease from the $3.5 million reported for the same period in 2010.Although the revenue amounts are similar, the product mix varied with an increase in third party hardware revenue to approximately $926,000, license revenue of $1.6 million and service revenue of $848,000 for the fiscal year ended December, 2011, compared with third party hardware revenue of approximately $569,000, license revenue of $2.4 million and service revenue of $440,000 for the same period in 2010. Gross margin for the fiscal year ended December 31, 2011 was approximately $2.7 million, representing a 9% decrease from the same period in 2010 of approximately $3.0 million. Operating expenses for 2011 remained flat to approximately $4,153,000 compared to $4,161,000 in the comparable period ended December 31, 2010.The decline in operating expenses were primarily related to lower legal, accounting and referral fee expenses, offset by an increase in R&D expenses and reserve for doubtful accounts. Operating loss for the fiscal year ended December 31, 2011 was approximately ($1,455.000) compared to an operating loss of ($1,200,000) reported for the same period in 2010. Net loss for the fiscal year of 2011 was approximately ($1,898,000) compared to net loss of ($307,000) for the comparable period in 2010.Net loss for the 2010 period included approximately $1,020,000 in income related to derivative and fair value adjustments and $343,000 in income from discontinued operations, both no longer applicable in 2011. Liquidity and Capital Resources Consolidated cash, cash equivalents and accounts receivables totaled over $630,000 on December 31, 2011, compared to $1.4 million as of December 31, 2010. Highlights for FY 2011 included the following: · Purchase Orders for continued product roll-outs at the Cleveland Clinic, Genesis Health Systems, Dayton Children’s Hospital, Robinson Memorial Hospital, McKesson, Allscripts, MedFlow and LexisNexis. · Initial delivery of a multi-million dollar contract to utilize BIO-key’s software for a large scale identity project which includes fingerprinting and registering the entire population of mobility users in an as-yet unnamed foreign country.The majority of the project is expected to be delivered in the first half of 2012. · Nationwide Children’s Hospital, one of the largest pediatric hospitals and research institutes in the U.S. implemented Phase 2 of the installation of BIO-key software; expanding the footprint from 300 to 2,500 finger print readers and expanding from 1650 to 6500 users.Part of the expansion includes future deployment at Nationwide Children’s new state of the art facility. · Dayton Children's has a staff of over 350 physicians and 1,300 employees and volunteers.During Q2 Dayton Children’s in Ohio contracted with BIO-key to deploy strong identification and authentication for their staff members to comply with Ohio Board of Pharmacy Positive ID requirements inside their Epic deployment. · Announced an agreement with Robinson Memorial Hospital to include our biometric software along with Allscripts Sunrise Clinical Manager. · Launched a new program with OEM partner Softex to integrate BIO-key’s algorithm within Softex software to provide fingerprint sign on and authentication for 10,000 retail employees of a major wireless telecommunications company. · Signed two new customers through Davisco, a real-time data collection and reporting company for workplace management functionality, servicing Fortune 500 companies and large government agencies. · Executed an OEM agreement with Oracle to include BIO-key software as the exclusive biometric solution in the release of Oracle’s new UAM product. First Quarter 2012 Preliminary Results BIO-key’s preliminary revenue results for the first quarter of 2012 are currently expected to be in the range of $1.3 million to $1.4 million, and the Company is projecting to be profitable.These first quarter results are preliminary and subject to completion and review of BIO-key’s 2012 first quarter financial statements in conjunction with the company’s 2012 first quarter Form 10-Q filing.BIO-key currently plans to announce final results for the first quarter on or before May 16,2012. Highlights for the first quarter 2012 included the following: · Awarded a contract to provide fingerprinttechnology for the Provincial Government of British Columbia Department of Corrections.The solution will be utilized by inmates and staff to access and track various applications including inmate records and personal services. · Secured agreement to provide biometric technology to a large blood center servicing over 1 million donors.BIO-key nowsupportsfour of the largest independent blood centers in US with our TruDonorID solution · Attended the IBM Pulse Event March 4-7th 2012.Pulseis the largest annual gathering of IBM resellers in the United States · Attended HIMSS Conference Feb 20-24th 2012.The Health Information Management Systems Society is dedicated to promoting a better understanding of health information systems technology. Conference Call Details BIO-key has scheduled a call for Monday, April 16th, at 10:00 a.m. Eastern Time to discuss 2011 fourth quarter results and preliminary first quarter 2012 results. To access the conference call live, dial 800-860-2442 (U.S.) or 412-858-4600 (International) and ask for the BIO-key call at least 10 minutes prior to the start time. The conference call will also be broadcast live over the Internet by logging onto www.bio-key.com. A telephonic replay of the conference call will be available through May 16, 2012 and may be accessed by dialing 877-344-7529 (U.S.) 412-317-0088(International) and using the pass code 10012270#. A streaming audio replay of the webcast will be available shortly after the call on the Company’s website (www.bio-key.com) for a period of thirty days. About BIO-key BIO-key International, Inc., headquartered in Wall, New Jersey, develops and delivers advanced identification solutions to commercial and government enterprises, integrators, and custom application developers.BIO-key’s award winning, high performance, scalable, cost-effective and easy-to-deploy biometric finger identification technology accurately identifies and authenticates users of wireless and enterprise applications. Our solutions are used in local embedded OEM products as well as some of the world’s largest identification deployments to improve security, guarantee identity, and help reduce identity theft.BIO-key’s technology is offered directly or by market leading partners around the world. (http://www.bio-key.com) BIO-key Safe Harbor Statement Certain statements contained in this press release may be construed as “forward-looking statements” as defined in the Private Securities Litigation Reform Act of 1995 (the “Act”). The words “estimate,” “project,” “intends,” “expects,” “anticipates,” “believes” and similar expressions are intended to identify forward-looking statements. Such forward-looking statements are made based on management's beliefs, as well as assumptions made by, and information currently available to, management pursuant to the “safe-harbor” provisions of the Act. These statements are subject to certain risks and uncertainties that may cause actual results to differ materially from those projected on the basis of these statements. These risks and uncertainties include, without limitation, our history of losses and limited revenue, our ability to develop new products and evolve existing ones, the impact on our business of the recent financial crisis in the global capital markets and negative global economic trends, our ability to attract and retain key personnel. For a more complete description of these and other risk factors that may affect the future performance of BIO-key International, Inc., see “Risk Factors” in the Company’s Annual Report on Form 10-K for the year ended December 31, 2011 and its other filings with the Securities and Exchange Commission. Readers are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date made. The Company also undertakes no obligation to disclose any revision to these forward-looking statements to reflect events or circumstances after the date made or to reflect the occurrence of unanticipated events.
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QUAKER® INVESTMENT TRUSTSupplement dated February 4, 2009 To the Statement of Additional Information for the QUAKER MID-CAP VALUE FUND QUAKER SMALL-CAP GROWTH TACTICAL ALLOCATION FUND Dated October 28, 2008 (as Amended November 3, 2008) The following information supplements, and to the extent inconsistent therewith, supersedes, certain information in the Statement of Additional Information (“SAI”).Defined terms not otherwise defined in this supplement have the same meaning as set forth in the SAI. Effective
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Exhibit 10.7.
ASSIGNMENT AGREEMENT
This Assignment Agreement (this “Agreement”), dated as of September 23, 2011
(the “Effective Date”), is made by and between Panacela, a corporation organized
under the laws of the State of Delaware (“Panacela”), and Cleveland BioLabs,
Inc., a Delaware corporation (“CBLI”). The parties hereto are additionally
referred to individually as a “Party”, and collectively, the “Parties”.
RECITALS
A. CBLI has developed and owns certain intellectual property rights in
and to the patent applications listed on Exhibit A.
B. CBLI and Panacela are parties to that certain Investment Agreement,
dated as of September 19, 2011 (the “Investment Agreement”), pursuant to among
other things, CBLI has agreed to transfer to Panacela the rights of CBLI in and
to the Intellectual Property (as defined below).
C. CBLI’s and Panacela’s execution and delivery of this Agreement, and
the grant of such rights and licenses to the Intellectual Property, is required
by Section 7.4(ii) of the Investment Agreement.
covenants hereinafter set forth, and for other good and valuable consideration
had and received, the parties hereby agree as follows:
1. Definitions. In addition to any terms defined throughout this
Agreement, when used in this Agreement, the following capitalized terms shall
1.1 “Assigned Assets” means the Intellectual Property, the
Registrations and the Registration Applications.
1.2 “Copyrights” means all copyrights owned by CBLI comprising,
concerning or related to subject matter covered by the Patents, including
copyrights in and to works of authorship and all other rights corresponding
thereto throughout the world, whether published or unpublished, including rights
to prepare derivative works based on, reproduce, perform, display and distribute
such works of authorship and copies, compilations and derivative works thereof.
1.3 “Intellectual Property” has the meaning set forth in Section 2.1.
1.4 “Know-How” means all technical information, know-how, unpatented
inventions, processes, compositions, methods, techniques, trade secrets,
drawings, designs, data and all other information covered by the Patents, which
is owned by CBLI.
1.5 “Patents” means (i) the patents and patent applications set forth
on Exhibit A; (ii) all patents issuing upon such foregoing applications; and
(iii) all continuations, continuations-in-part, additions, divisions, renewals,
extensions, or reexaminations and reissues of any of the foregoing, and all
United States or foreign counterparts of any of the foregoing.
1.6 “Registration” means, with respect to any country in the world,
approval of the Registration Application for a Product filed in such country,
including pricing or reimbursement, where applicable, by the Regulatory
Authority in such country.
1.7 “Registration Application” means any filing made with the
Regulatory Authority in any country in the world for regulatory approval of the
manufacture, marketing and sale of a Product in such country.
1.8 “Regulatory Authority” means the governmental authority in any
country in the world with responsibility for granting regulatory approval for
the manufacturing, marketing and sale of the Products in each such country,
including but not limited to the U.S. Food and Drug Administration, and any
successor authority thereto.
2. Assignment.
2.1 Intellectual Property. CBLI hereby assigns to Panacela all of
CBLI’s worldwide rights, title and interests, in and to the Patents, Know-How,
Copyrights, and all rights to causes of action and remedies related to the
foregoing (including the right to sue for past, present or future infringement,
misappropriation or violation of rights related to the foregoing) (all of the
foregoing are collectively referred to herein as the “Intellectual Property”).
3. Further Assurances. Upon Panacela’s request, CBLI will promptly
take such actions as may be reasonably necessary to vest, secure, perfect,
protect or enforce the ownership rights and interests of Panacela in and to the
Assigned Assets, including the prompt execution, delivery and filing of
confirmatory assignments and other reasonably requested documents. If Panacela
is unable for any reason whatsoever to secure CBLI’s signature to any document
it is entitled to under this Section 3, CBLI hereby irrevocably designates and
appoints Panacela and its duly authorized officers and agents, as CBLI’s agents
and attorneys-in-fact and with full power of substitution to act for and on
CBLI’s behalf and instead of CBLI, to execute and file any such document or
the foregoing with the same legal force and effect as if executed by CBLI. The
parties acknowledge and agree that the foregoing power of attorney is a power
coupled with an interest. The parties further agree that in the event any
issues arise in any jurisdiction regarding the interpretation, effect or
enforceability of the assignment in Section 2 under such jurisdiction’s laws,
including but not limited to issues that would affect or that are related to the
recordation of the assignment of rights hereunder, or the prosecution, issuance
and/or maintenance of patents and copyright registrations, the parties shall
discuss and negotiate in good faith the resolution of such issues until a
reasonable resolution that is mutually agreeable to both parties is reached.
4. Warranty. CBLI represents and warrants to Panacela that CBLI:
(i) is the sole or joint owner of all rights, title and interest in the Assigned
Assets, free and clear of any lien or encumbrance, and, to the best of its
actual knowledge, without any conflict with or infringement of the rights of any
third party;
(ii) has not, orally or in writing, (a) assigned, transferred, licensed, pledged
or otherwise encumbered any of its rights in any of the Assigned Assets or (b)
2
(iii) has full power and authority to enter into this Agreement, to make the
assignment as provided in Section 2 and to perform its other obligations
hereunder; and
(iv) has not entered into, and is not bound by, any collaborative, licensing,
transfer, supply, distributorship or marketing agreements or arrangements or
other similar agreements relating to any of the Assigned Assets;
5. Confidentiality.
5.1 Disclosure of Confidential Information. The Parties acknowledge
that a Party (the “Disclosing Party”) may disclose Confidential Information (as
defined below) to the other Party (the “Receiving Party”) pursuant to the terms
of this Agreement. Accordingly, the Receiving Party agrees to keep the
Disclosing Party’s Confidential Information in confidence and not to use or
disclose the Disclosing Party’s Confidential Information except in pursuance of
5.2 Confidentiality Obligations. The Receiving Party agrees to keep
any information identified as confidential by the Disclosing Party, confidential
using methods at least as stringent as the Receiving Party uses to protect its
own Confidential Information. “Confidential Information” shall include all
information from either Party that is marked confidential or is accompanied by
correspondence indicating such information is confidential. Except as may be
authorized in advance in writing by the Disclosing Party, the Receiving Party
shall grant access to the Disclosing Party’s Confidential Information only to
its own employees involved in research relating to the Intellectual Property
and/or manufacture or marketing of products or services using the Intellectual
Property, and each Party shall require such employees to be bound by
confidentiality obligations at least as stringent as those set forth in this
Agreement as well. The Receiving Party agrees not to use any Confidential
Information of the other party to its advantage and the Disclosing Party’s
detriment. The confidentiality and use obligations set forth above apply to all
or any part of the Confidential Information disclosed hereunder except to the
extent that:
(a) The Receiving Party can show by written record that it possessed
the information prior to its receipt from the Disclosing Party;
(b) The information was already available to the public or became so
(c) The information is subsequently disclosed to the Receiving Party
(d) The information is required by law or regulation to be disclosed;
provided, however, that the Receiving Party has provided written notice to the
Disclosing Party promptly to enable the Disclosing Party to seek a protective
order or otherwise prevent disclosure of such Confidential Information.
3
6. Indemnification. CBLI shall, at all times during the term of this
Agreement and thereafter, indemnify, defend and hold Panacela, and its officers,
employees, sublicensees, agents and contractors harmless against all claims and
expenses, including legal expenses and reasonable attorneys fees, arising out of
any breach of the warranties given by CBLI in Section 4 above. Panacela at all
times reserves the right to select and retain counsel of its own, at its own
expense, to represent Panacela’s interests in any such action, subject to CBLI’s
sole control of the defense thereof and all related settlement negotiations.
7. Miscellaneous.
7.1 Notices. All notices and other communications required or
may be delivered in person, by telecopy, electronic mail or overnight delivery
service, addressed to the party’s principal address.
7.2 Entire Agreement. This Agreement, together with the other
agreements referred to herein, embodies the entire agreement among the parties
in relation to its subject matter, and supersedes in their entirety all prior
contracts, agreements, arrangements, communications, discussions,
representations and warranties, whether oral or written among the parties,
7.3 Severability. Each section, subsection and lesser section of this
finally be determined to be unlawful, all such provisions shall be deemed
unlawful, there shall be substituted a provision of similar import reflecting
7.4 Waivers and Amendments. This Agreement may be amended or modified
in whole or in part only by a writing, which makes reference to this Agreement
executed by the parties. The obligations of any party hereunder may be waived
continuing waiver of such provision, or a waiver of any other violation of,
breach of or default under any other provision of this Agreement or any other
7.6 Counterparts. This Agreement may be executed in any number of
4
/s/ Michael Fonstein, Ph.D.
Name:
Title:
Chief Executive Officer
/s/ Dmitry Tyomkin
Name:
Dmitry Tyomkin
Title:
Chief Executive Officer
Exhibit A
Assigned Patents
Mobilan
Country
Owner
US Provisional
61/423,842
RPCI/CBLI
US Provisional
61/423,825
RPCI/CBLI
US Provisional
61/249,596
RPCI/CBLI
PCT
PCT/US10/51646
RPCI/CBLI
Revercom
Country
Owner
US Provisional
61/423,838
RPCI/CBLI
Antimycon
Country
Owner
US Provisional
61/392,296
RPCI/CBLI/CCIA
US Provisional
61/423,832
Arkil
Country
Owner
PCT
PCT/US06/38440
CCF/CBLI
US
11/992,874
CCF/CBLI
PCT
PCT/US2010/053916
RPCI/CBLI
US
61/254,395
RPCI/CBLI
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Exhibit 10.2
THIRD AMENDMENT
TO
2005 DIRECTORS STOCK INCENTIVE PLAN
Dresser-Rand Group Inc., a Delaware corporation, having established the
Dresser-Rand Group Inc. 2005 Directors Stock Incentive Plan (the “Plan”), and
having reserved the right under Article VI thereof to amend the Plan, does
hereby amend the Plan as follows:
1. The definition of “Change in Control” set forth in Section 7.1 of the
Plan is hereby amended to read in its entirety as follows:
“CHANGE IN CONTROL” means the first to occur of any of the following
events:
(i) during any 12-month period, the members of the Board (the “INCUMBENT
DIRECTORS”) cease for any reason other than due to death or disability to
constitute at least a majority of the members of the Board, PROVIDED that any
the Board who are at the time Incumbent Directors shall be considered an
Incumbent Director, other than any such individual whose initial assumption of
Board;
(ii) the acquisition or ownership by any individual, entity or “group”
(within the meaning of Section 13(d)(3) of the Act), other than the Company or
any of its Affiliates or Subsidiaries, or any employee benefit plan (or related
promulgated under the Act) of 50% or more of the combined voting power of the
election of directors;
and
Company.
Code.
IN WITNESS WHEREOF, Dresser-Rand Group Inc. has caused these presents to be
executed by its duly authorized officer and be effective this 28th day of
October, 2008.
By: /s/ Mark F. Mai Mark F. Mai Vice President, General
Counsel and Secretary
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CITIBANK, N.A. CITIBANK CREDIT CARD ISSUANCE TRUST / CITIBANK CREDIT CARD MASTER TRUST I For the Due Period Ending November 24, 2014
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Name: Commission Regulation (EC) No 1203/98 of 9 June 1998 establishing unit values for the determination of the customs value of certain perishable goods
Type: Regulation
Date Published: nan
EN Official Journal of the European Communities11. 6. 98 L 166/11 COMMISSION REGULATION (EC) No 1203/98 of 9 June 1998 establishing unit values for the determination of the customs value of certain perishable goods THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Community, Having regard to Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (1), as last amended by Regulation (EC) No 82/97 (2), Having regard to Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (3), as last amended by Regulation (EC) No 75/98 (4), and in par- ticular Article 173 (1) thereof, Whereas Articles 173 to 177 of Regulation (EEC) No 2454/93 provide that the Commission shall periodically establish unit values for the products referred to in the classification in Annex 26 to that Regulation; Whereas the result of applying the rules and criteria laid down in the abovementioned Articles to the elements communicated to the Commission in accordance with Article 173 (2) of Regulation (EEC) No 2454/93 is that unit values set out in the Annex to this Regulation should be established in regard to the products in question, HAS ADOPTED THIS REGULATION: Article 1 The unit values provided for in Article 173 (1) of Regula- tion (EEC) No 2454/93 are hereby established as set out in the table in the Annex hereto. Article 2 This Regulation shall enter into force on 12 June 1998. This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Brussels, 9 June 1998. For the Commission Martin BANGEMANN Member of the Commission (1) OJ L 302, 19. 10. 1992, p. 1. (2) OJ L 17, 21. 1. 1997, p. 1. (3) OJ L 253, 11. 10. 1993, p. 1. (4) OJ L 7, 13. 1. 1998, p. 3. EN Official Journal of the European Communities 11. 6. 98L 166/12 Description Amount of unit values per 100 kg Code a) ECU ATS DEM DKK GRD ESP b) FIM FRF IEP ITL NLG PTESpecies, varieties, CN code c) SEK BEF/LUF GBP ANNEX 1.10 New potatoes a) 39,81 551,43 78,36 298,55 13 306,53 6 653,92 0701 90 51 b) 238,19 262,80 31,07 77 179,25 88,33 8 025,30 0701 90 59 c) 343,93 1 616,49 26,99 1.30 Onions (other than seed) a) 46,52 644,37 91,57 348,87 15 549,36 7 775,45 0703 10 19 b) 278,34 307,09 36,30 90 187,86 103,22 9 377,97 c) 401,90 1 888,95 31,54 1.40 Garlic a) 134,07 1 857,07 263,91 1 005,43 44 813,03 22 408,73 0703 20 00 b) 802,16 885,03 104,63 259 920,17 297,48 27 027,17 c) 1 158,27 5 443,94 90,91 1.50 Leeks a) 39,59 548,38 77,93 296,90 13 233,00 6 617,15 ex 0703 90 00 b) 236,87 261,34 30,90 76 752,74 87,84 7 980,95 c) 342,03 1 607,56 26,84 1.60 Cauliflowers a) 75,84 1 050,50 149,29 568,75 25 349,60 12 676,05 0704 10 10 b) 453,76 500,64 59,18 147 030,25 168,28 15 288,59 0704 10 05 0704 10 80 c) 655,20 3 079,50 51,42 1.70 Brussels sprouts a) 59,69 826,80 117,50 447,63 19 951,44 9 976,71 0704 20 00 b) 357,13 394,03 46,58 115 720,41 132,44 12 032,91 c) 515,68 2 423,72 40,47 1.80 White cabbages and red cabbages a) 49,38 683,99 97,20 370,31 16 505,31 8 253,47 0704 90 10 b) 295,45 325,97 38,54 95 732,51 109,57 9 954,51 c) 426,61 2 005,08 33,48 1.90 Sprouting broccoli or calabrese (Brassica oleracea L. convar. botrytis (L.) Alef var. ita- lica Plenck) a) 105,95 1 467,57 208,56 794,55 35 413,89 17 708,69 ex 0704 90 90 b) 633,92 699,40 82,68 205 404,21 235,09 21 358,46 c) 915,33 4 302,12 71,84 1.100 Chinese cabbage a) 57,59 797,71 113,36 431,88 19 249,52 9 625,71 ex 0704 90 90 b) 344,57 380,17 44,94 111 649,16 127,78 11 609,57 c) 497,53 2 338,45 39,05 1.110 Cabbage lettuce (head lettuce) a) 152,67 2 114,71 300,53 1 144,92 51 030,10 25 517,57 0705 11 10 b) 913,45 1 007,81 119,14 295 979,80 338,75 30 776,75 0705 11 05 0705 11 80 c) 1 318,96 6 199,20 103,52 1.120 Endives a) 21,82 302,24 42,95 163,63 7 293,36 3 647,04 ex 0705 29 00 b) 130,55 144,04 17,03 42 302,22 48,42 4 398,69 c) 188,51 886,01 14,80 1.130 Carrots a) 43,10 597,00 84,84 323,22 14 406,22 7 203,82 ex 0706 10 00 b) 257,87 284,51 33,63 83 557,54 95,63 8 688,53 c) 372,35 1 750,08 29,22 1.140 Radishes a) 173,89 2 408,64 342,30 1 304,05 58 122,91 29 064,32 ex 0706 90 90 b) 1 040,41 1 147,89 135,70 337 118,80 385,84 35 054,49 c) 1 502,28 7 060,84 117,91 1.160 Peas (Pisum sativum) a) 371,06 5 139,74 730,42 2 782,68 124 027,18 62 019,71 0708 10 90 b) 2 220,11 2 449,46 289,57 719 370,31 823,33 74 801,99 0708 10 20 0708 10 95 c) 3 205,68 15 066,97 251,60 EN Official Journal of the European Communities11. 6. 98 L 166/13 Description Amount of unit values per 100 kg Code a) ECU ATS DEM DKK GRD ESP b) FIM FRF IEP ITL NLG PTESpecies, varieties, CN code c) SEK BEF/LUF GBP 1.170 Beans: 1.170.1 Beans (Vigna spp., Phaseolus ssp.) a) 132,61 1 836,85 261,04 994,48 44 325,03 22 164,70 ex 0708 20 90 b) 793,43 875,39 103,49 257 089,68 294,24 26 732,85 ex 0708 20 20 ex 0708 20 95 c) 1 145,65 5 384,66 89,92 1.170.2 Beans (Phaseolus ssp., vulgaris var. Com- pressus Savi) a) 138,76 1 922,03 273,14 1 040,60 46 380,67 23 192,62 ex 0708 20 90 b) 830,22 915,99 108,29 269 012,62 307,89 27 972,63 ex 0708 20 20 ex 0708 20 95 c) 1 198,78 5 634,38 94,09 1.180 Broad beans a) 157,74 2 184,94 310,51 1 182,94 52 724,75 26 364,98 ex 0708 90 00 b) 943,78 1 041,28 123,10 305 808,96 350,00 31 798,81 c) 1 362,76 6 405,06 106,96 1.190 Globe artichokes a) ï £ § ï £ § ï £ § ï £ § ï £ § ï £ § 0709 10 00 b) ï £ § ï £ § ï £ § ï £ § ï £ § ï £ § c) ï £ § ï £ § ï £ § 1.200 Asparagus: 1.200.1 ï £ § green a) 334,19 4 629,03 657,84 2 506,18 111 703,34 55 857,18 ex 0709 20 00 b) 1 999,51 2 206,07 260,80 647 890,81 741,52 67 369,36 c) 2 887,15 13 569,85 226,60 1.200.2 ï £ § other a) 219,37 3 038,60 431,82 1 645,12 73 324,64 36 665,94 ex 0709 20 00 b) 1 312,53 1 448,12 171,19 425 290,43 486,75 44 222,80 c) 1 895,19 8 907,56 148,75 1.210 Aubergines (eggplants) a) 100,34 1 389,86 197,52 752,48 33 538,75 16 771,03 0709 30 00 b) 600,35 662,37 78,30 194 528,15 222,64 20 227,54 c) 866,86 4 074,33 68,04 1.220 Ribbed celery (Apium graveolens L., var. dulce (Mill.) Pers.) a) 73,88 1 023,35 145,43 554,05 24 694,46 12 348,45 ex 0709 40 00 b) 442,04 487,70 57,65 143 230,42 163,93 14 893,47 c) 638,27 2 999,91 50,10 1.230 Chantarelles a) 1 156,82 16 023,69 2 277,17 8 675,32 386 668,24 193 353,21 0709 51 30 b) 6 921,44 7 636,46 902,76 2 242 715,37 2 566,82 233 203,34 c) 9 994,07 46 972,91 784,40 1.240 Sweet peppers a) 182,85 2 532,75 359,93 1 371,24 61 117,80 30 561,91 0709 60 10 b) 1 094,02 1 207,04 142,69 354 489,47 405,72 36 860,73 c) 1 579,69 7 424,66 123,98 1.250 Fennel a) 73,55 1 018,78 144,78 551,57 24 584,16 12 293,29 0709 90 50 b) 440,06 485,52 57,40 142 590,65 163,20 14 826,94 c) 635,42 2 986,51 49,87 1.270 Sweet potatoes, whole, fresh (intended for human consumption) a) 90,95 1 259,79 179,03 682,06 30 400,13 15 201,56 0714 20 10 b) 544,17 600,38 70,98 176 323,86 201,81 18 334,61 c) 785,74 3 693,04 61,67 2.10 Chestnuts (Castanea spp.), fresh a) 140,29 1 943,23 276,16 1 052,07 46 892,07 23 448,35 ex 0802 40 00 b) 839,38 926,09 109,48 271 978,82 311,28 28 281,06 c) 1 212,00 5 696,50 95,13 2.30 Pineapples, fresh a) 69,89 968,08 137,58 524,12 23 360,80 11 681,55 ex 0804 30 00 b) 418,16 461,36 54,54 135 495,04 155,08 14 089,13 c) 603,80 2 837,90 47,39 EN Official Journal of the European Communities 11. 6. 98L 166/14 Description Amount of unit values per 100 kg Code a) ECU ATS DEM DKK GRD ESP b) FIM FRF IEP ITL NLG PTESpecies, varieties, CN code c) SEK BEF/LUF GBP 2.40 Avocados, fresh a) 105,70 1 464,10 208,07 792,67 35 330,33 17 666,91 ex 0804 40 90 b) 632,42 697,15 82,49 204 919,53 234,53 21 308,06 ex 0804 40 20 ex 0804 40 95 c) 913,17 4 291,97 71,67 2.50 Guavas and mangoes, fresh a) 100,85 1 396,92 198,52 756,30 33 709,21 16 856,27 ex 0804 50 00 b) 603,40 665,74 78,70 195 516,89 223,77 20 330,35 c) 871,27 4 095,03 68,38 2.60 Sweet oranges, fresh: 2.60.1 ï £ § Sanguines and semi-sanguines a) ï £ § ï £ § ï £ § ï £ § ï £ § ï £ § 0805 10 10 b) ï £ § ï £ § ï £ § ï £ § ï £ § ï £ § c) ï £ § ï £ § ï £ § 2.60.2 ï £ § Navels, navelines, navelates, salustianas, vernas, Valencia lates, Maltese, shamou- tis, ovalis, trovita and hamlins a) 40,05 554,75 78,84 300,35 13 386,75 6 694,04 0805 10 30 b) 239,63 264,38 31,25 77 644,53 88,87 8 073,68 c) 346,00 1 626,24 27,16 2.60.3 ï £ § Others a) ï £ § ï £ § ï £ § ï £ § ï £ § ï £ § 0805 10 50 b) ï £ § ï £ § ï £ § ï £ § ï £ § ï £ § c) ï £ § ï £ § ï £ § 2.70 Mandarins (including tangerines and satsu- mas), fresh; clementines, wilkings and simi- lar citrus hybrids, fresh: 2.70.1 ï £ § Clementines a) 87,40 1 210,62 172,04 655,44 29 213,54 14 608,21 0805 20 10 b) 522,93 576,95 68,21 169 441,51 193,93 17 618,97 c) 755,07 3 548,89 59,26 2.70.2 ï £ § Monreales and satsumas a) 69,60 964,06 137,01 521,95 23 263,87 11 633,08 0805 20 30 b) 416,43 459,45 54,31 134 932,82 154,43 14 030,66 c) 601,29 2 826,12 47,19 2.70.3 ï £ § Mandarines and wilkings a) 81,55 1 129,59 160,53 611,57 27 258,17 13 630,43 0805 20 50 b) 487,93 538,33 63,64 158 100,17 180,95 16 439,66 c) 704,53 3 311,35 55,30 2.70.4 ï £ § Tangerines and others a) 65,21 903,26 128,36 489,03 21 796,51 10 899,33 ex 0805 20 70 b) 390,16 430,47 50,89 126 421,97 144,69 13 145,68 ex 0805 20 90 c) 563,37 2 647,87 44,22 2.85 Limes (Citrus aurantifolia), fresh a) 115,50 1 599,85 227,36 866,17 38 605,99 19 304,90 ex 0805 30 90 b) 691,05 762,44 90,13 223 918,70 256,28 23 283,65 c) 997,83 4 689,90 78,32 2.90 Grapefruit, fresh: 2.90.1 ï £ § white a) 53,51 741,19 105,33 401,29 17 885,77 8 943,77 ex 0805 40 90 b) 320,16 353,23 41,76 103 739,30 118,73 10 787,08 ex 0805 40 20 ex 0805 40 95 c) 462,29 2 172,78 36,28 2.90.2 ï £ § pink a) 60,41 836,77 118,92 453,03 20 192,10 10 097,05 ex 0805 40 90 b) 361,44 398,78 47,14 117 116,26 134,04 12 178,05 ex 0805 40 20 ex 0805 40 95 c) 521,90 2 452,96 40,96 2.100 Table grapes a) 223,35 3 093,73 439,66 1 674,96 74 654,96 37 331,17 ex 0806 10 10 b) 1 336,34 1 474,39 174,30 433 006,41 495,58 45 025,13 c) 1 929,58 9 069,17 151,45 EN Official Journal of the European Communities11. 6. 98 L 166/15 Description Amount of unit values per 100 kg Code a) ECU ATS DEM DKK GRD ESP b) FIM FRF IEP ITL NLG PTESpecies, varieties, CN code c) SEK BEF/LUF GBP 2.110 Water melons a) 36,23 501,84 71,32 271,70 12 109,91 6 055,55 0807 11 00 b) 216,77 239,16 28,27 70 238,74 80,39 7 303,61 c) 313,00 1 471,13 24,57 2.120 Melons (other than water melons): 2.120.1 ï £ § Amarillo, cuper, honey dew (including cantalene), onteniente, piel de sapo (in- cluding verde liso), rochet, tendral, futuro a) 59,74 827,49 117,60 448,01 19 968,15 9 985,06 ex 0807 19 00 b) 357,43 394,36 46,62 115 817,34 132,55 12 042,99 c) 516,11 2 425,75 40,51 2.120.2 ï £ § other a) 90,24 1 249,96 177,63 676,74 30 162,81 15 082,89 ex 0807 19 00 b) 539,92 595,70 70,42 174 947,39 200,23 18 191,48 c) 779,61 3 664,21 61,19 2.140 Pears 2.140.1 Pears ï £ § nashi (Pyrus pyrifolia) a) 152,13 2 107,23 299,46 1 140,87 50 849,60 25 427,31 ex 0808 20 50 b) 910,22 1 004,25 118,72 294 932,91 337,56 30 667,89 c) 1 314,29 6 177,27 103,15 2.140.2 Other a) 87,61 1 213,53 172,46 657,01 29 283,73 14 643,31 ex 0808 20 50 b) 524,18 578,34 68,37 169 848,63 194,39 17 661,30 c) 756,89 3 557,42 59,41 2.150 Apricots a) ï £ § ï £ § ï £ § ï £ § ï £ § ï £ § 0809 10 00 b) ï £ § ï £ § ï £ § ï £ § ï £ § ï £ § c) ï £ § ï £ § ï £ § 2.160 Cherries a) ï £ § ï £ § ï £ § ï £ § ï £ § ï £ § 0809 20 05 b) ï £ § ï £ § ï £ § ï £ § ï £ § ï £ § 0809 20 95 c) ï £ § ï £ § ï £ § 2.170 Peaches a) 153,85 2 131,05 302,85 1 153,76 51 424,52 25 714,80 0809 30 90 b) 920,51 1 015,60 120,06 298 267,46 341,37 31 014,62 c) 1 329,15 6 247,11 104,32 2.180 Nectarines a) 210,69 2 918,37 414,74 1 580,02 70 423,34 35 215,15 ex 0809 30 10 b) 1 260,59 1 390,82 164,42 408 462,60 467,49 42 473,00 c) 1 820,21 8 555,11 142,86 2.190 Plums a) 183,20 2 537,59 360,62 1 373,87 61 234,78 30 620,41 0809 40 05 b) 1 096,11 1 209,35 142,97 355 168,01 406,50 36 931,29 c) 1 582,71 7 438,87 124,22 2.200 Strawberries a) 152,83 2 116,92 300,84 1 146,11 51 083,58 25 544,31 0810 10 10 b) 914,41 1 008,87 119,27 296 289,99 339,11 30 809,00 0810 10 05 0810 10 80 c) 1 320,34 6 205,69 103,63 2.205 Raspberries a) 1 368,45 18 955,09 2 693,75 10 262,39 457 405,78 228 725,47 0810 20 10 b) 8 187,66 9 033,48 1 067,91 2 653 000,33 3 036,40 275 865,84 c) 11 822,40 55 566,19 927,90 2.210 Fruit of the species Vaccinium myrtillus a) 647,43 8 967,88 1 274,45 4 855,26 216 404,12 108 212,75 0810 40 30 b) 3 873,68 4 273,85 505,24 1 255 166,07 1 436,56 130 515,41 c) 5 593,32 26 289,02 439,00 2.220 Kiwi fruit (Actinidia chinensis Planch.) a) 123,25 1 707,20 242,61 924,29 41 196,44 20 600,25 0810 50 10 b) 737,42 813,60 96,18 238 943,54 273,47 24 845,97 0810 50 20 0810 50 30 c) 1 064,79 5 004,59 83,57 EN Official Journal of the European Communities 11. 6. 98L 166/16 Description Amount of unit values per 100 kg Code a) ECU ATS DEM DKK GRD ESP b) FIM FRF IEP ITL NLG PTESpecies, varieties, CN code c) SEK BEF/LUF GBP 2.230 Pomegranates a) 156,12 2 162,50 307,32 1 170,79 52 183,27 26 094,21 ex 0810 90 85 b) 934,09 1 030,59 121,83 302 668,28 346,41 31 472,23 c) 1 348,76 6 339,28 105,86 2.240 Khakis (including sharon fruit) a) 264,52 3 664,00 520,70 1 983,71 88 416,07 44 212,40 ex 0810 90 85 b) 1 582,67 1 746,16 206,43 512 822,28 586,93 53 324,59 c) 2 285,26 10 740,89 179,36 2.250 Lychees a) 449,92 6 232,07 885,65 3 374,08 150 386,21 75 200,53 ex 0810 90 30 b) 2 691,94 2 970,03 351,11 872 255,40 998,31 90 699,37 c) 3 886,98 18 269,09 305,08 |
Commission.
EXECUTION COPY
AMENDMENT NUMBER SEVEN to
DELTA CONNECTION
AGREEMENT
This Amendment Number Seven (this "Amendment"), dated as of December 11, 2014
(“Amendment Number Seven Effective Date”), to the Delta Connection Agreement
dated and effective January 13, 2005 (as amended from time to time, the
“Agreement”), is among Delta Air Lines, Inc., 1030 Delta Boulevard, Atlanta,
Georgia 30320 ("Delta"), Shuttle America Corporation (as assignee of Republic
Airline Inc.) (“Shuttle America” or “Operator”), 8909 Purdue Road, Indianapolis,
Indiana 46268 and Republic Airways Holdings Inc. (“Republic”), 8909 Purdue Road,
Indianapolis, Indiana 46268.
WHEREAS, Delta, Shuttle America and Republic are parties to the Agreement; and
WHEREAS, the parties desire to add additional aircraft within the scope of the
Agreement and amend certain provisions of the Agreement, each pursuant to the
1.
Defined Terms. All terms capitalized used, but not defined, herein shall have
2. Option to Purchase Existing Sixteen (16) ERJ 175 Aircraft.
Delta shall have the option, which it may exercise in its sole discretion by
providing Operator no less than [*] prior written notice and subject to
reasonable and customary due diligence by or on behalf of Delta, to purchase
from Operator any, or all, of the sixteen (16) ERJ 175 Aircraft set forth in
Exhibit A attached hereto and incorporated herein together with two (2) of the
thirty-two (32) engines set forth on Exhibit A attached hereto for each such ERJ
175 Aircraft (collectively, the “ERJ 175 Baseline Aircraft”) upon the expiration
of the respective term of the Agreement with respect to each such ERJ 175
Baseline Aircraft for an amount equal to the net book value (in accordance with
GAAP) of each such ERJ 175 Baseline Aircraft at the time of such expiration (the
“ERJ 175 Baseline Aircraft Purchase Option”). At any time after Delta
1
exercises any such ERJ 175 Baseline Aircraft Purchase Option for any ERJ 175
Baseline Aircraft, Delta shall be solely responsible for the cost of any life
limited parts (“LLP”) replacement with respect to such ERJ 175 Baseline
Aircraft.
A.
from Operator any, or all, of such ERJ 175 Baseline Aircraft at any time during
either of the respective ERJ 175 Baseline Aircraft Extension Term (as defined
below) or the ERJ 175 Baseline Aircraft Subsequent Extension Term (as defined
below) for an amount equal to the net book value (in accordance with GAAP) of
each such ERJ 175 Baseline Aircraft at the time of purchase (the “ERJ 175
Extension Purchase Option”). If Delta exercises any such ERJ 175 Extension
Purchase Option, Delta shall lease back to Operator each such purchased ERJ 175
Baseline Aircraft pursuant to a mutually agreed upon aircraft lease agreement
(such agreement not to be unreasonably withheld or delayed), and Operator shall
operate each such ERJ 175 Baseline Aircraft under the scope of the Agreement for
the remainder of the ERJ 175 Baseline Aircraft Extension Term and/or ERJ 175
Baseline Aircraft Subsequent Extension Term, as applicable. With respect to each
such aircraft lease agreement, the parties agree that unless Operator is in
breach or default of such lease, Operator shall pay Delta a lease rate equal to
[*] during the term of each such lease. At any time after Delta exercises any
such ERJ 175 Extension Purchase Option for any ERJ 175 Baseline Aircraft, Delta
shall be solely responsible for the cost of any LLP replacement with respect to
such ERJ 175 Baseline Aircraft.
3.
Extension of Term of the ERJ 175 Baseline Aircraft.
A.
The term of the ERJ 175 Baseline Aircraft shall be extended until the respective
fifteenth (15th) anniversary dates of the initial in-service dates of such ERJ
175 Baseline Aircraft to Delta Connection service as set forth in Exhibit A
attached hereto (the “ERJ 175 Baseline Aircraft Extension Term”).
B.
Additionally, with respect to any or all of the ERJ 175 Baseline Aircraft, Delta
shall have the option, in its sole discretion, to further extend the term of
such ERJ 175 Baseline Aircraft for a period of five (5) years beyond the
applicable ERJ 175 Baseline Aircraft Extension Term (the “ERJ 175 Baseline
Aircraft Subsequent Extension Term”). Delta may exercise this option by
providing Operator no less than [*] prior written notice of such election. If
Delta exercises its option of the ERJ 175 Baseline Aircraft Subsequent Extension
Term for any ERJ 175 Baseline Aircraft, Delta and Operator acknowledge and agree
that the monthly Aircraft Rent/Ownership Cost during the ERJ 175 Baseline
Aircraft Subsequent Extension Term with respect to each such ERJ 175 Baseline
Aircraft shall be equal to [*] (subject to potential Mark-Up in accordance with
Article 3 of the Agreement).
C.
The following Sections of the Agreement shall be of no force and effect with
respect to the ERJ 175 Baseline Aircraft effective upon the first day of the ERJ
175 Baseline
2
Aircraft Extension Term: Sections 11.G., 11.I. and 11.M.
4. Extension of ERJ 170 Additional Aircraft and ERJ 170 Subsequent Additional
Aircraft.
A.
(i) Notwithstanding Section 3(D) of Amendment Number Three to the Agreement
dated January 31, 2011 (“Amendment Three”), the parties agree to extend the
terms of the eight (8) ERJ-170 Additional Aircraft (as that term is defined in
Amendment Three) and (ii), notwithstanding Section 3(D) of Amendment Number Four
to the Agreement dated April 26, 2011 (“Amendment Four”), the parties agree to
extend the terms of the six (6) ERJ 170 Subsequent Additional Aircraft (as that
term is defined in Amendment Four and together with the ERJ-170 Additional
Aircraft, the “ERJ 170 Baseline Aircraft”) through the respective “Amended
Expiration Dates” set forth in Exhibit B attached hereto and incorporated herein
to this Amendment.
B.
Section 3(K) of Amendment Three and Section 3(K) of Amendment Four are each
deleted in their entireties and of no further force and effect.
C.
(i) The parties acknowledge and agree that one or more of the ERJ-170
Baseline Aircraft may require “C-checks” on their respective airframes prior to
the end of their respective terms under the Agreement. [*].
(ii) In addition, at the end of each ERJ-170 Baseline Aircraft’s respective
term under the Agreement, Delta shall pay to Operator in the month following the
last flight under the Agreement by the applicable ERJ-170 Baseline Aircraft an
amount equal to the product of (y) [*] multiplied by (z) [*].
D.
Prior to each of the “Amended Expiration Dates” set forth in Exhibit B attached
hereto, Delta shall have the option, in its sole discretion, to extend the term
of any, or all, of the ERJ 170 Baseline Aircraft for a period of five (5) years
beyond each respective Amended Expiration Date (the “ERJ-170 Baseline Aircraft
Extension Term”) by providing Operator no less than [*] prior written notice. If
Delta exercises such option for one or more ERJ-170 Baseline Aircraft, then the
monthly Aircraft Rent/Ownership Cost with respect to each such ERJ-170 Baseline
Aircraft shall be [*] (subject to potential Mark-Up in accordance with Article 3
of the Agreement). If Delta does not exercise such option with respect to an
ERJ-170 Baseline Aircraft, such ERJ 170 Baseline Aircraft shall be removed from
Delta Connection service and the scope of the Agreement as of its Amended
Expiration Date.
5. Addition of Nine (9) ERJ 170 Aircraft.
A.
Pursuant to Article 1(A) of the Agreement, effective as of the respective
“In-Service Date” (as defined below), the nine (9) ERJ 170 Aircraft set forth in
Exhibit B attached hereto and incorporated herein (the “Placement Aircraft”)
shall be included as Aircraft under the terms of the Agreement, except as
otherwise set forth in this Amendment. The
3
Base Rate Costs with respect to the Placement Aircraft shall be the same as the
Base Rate Costs applied to the other ERJ-170 Baseline Aircraft.
B.
Each Placement Aircraft shall be made available by Operator to be placed into
Delta Connection service on the In-Service Date set forth opposite such
Placement Aircraft in Exhibit B (each such date, an “In-Service Date”). If
Operator is unable to have available for Delta Connection service any Placement
Aircraft on its respective In-Service Date, Operator shall pay Delta the sum of
[*] per day that each such Placement Aircraft is not available for Delta
Connection service beyond such aircraft’s respective In-Service Date due to
circumstances within the control of Operator, up to a maximum of [*] per each
Placement Aircraft.
C.
Operator and Republic, jointly and severally, represent and warrant to Delta
that each of the Placement Aircraft will be maintained in accordance with
Operator's FAA approved maintenance program and, excluding the Placement
Aircraft Configuration (as defined in Section 5(F) below) conversion, Placement
Aircraft Interior Modifications (as defined in Section 5(G) below), scheduled
C-checks of each type, and ordinary and routine maintenance requirements, each
of the Placement Aircraft is fully operable, able to operate under the terms of
the Agreement, and is not subject to any unusual or extraordinary repair or
maintenance requirements.
D.
Notwithstanding anything in the Agreement to the contrary, each Placement
Aircraft shall be included as an Aircraft under the Agreement for a period of
six (6) years commencing on the respective In-Service Date of each such
Placement Aircraft (the “Placement Aircraft Term”).
E.
Each of the Placement Aircraft shall be repainted in the Delta-approved Delta
Connection livery prior to its respective In-Service Date. [*]
F.
Prior to its respective In-Service Date, each Placement Aircraft shall be
configured in a dual-class configuration consisting of [*] first class seats,
[*] economy comfort seats, and [*] coach class seats, unless otherwise
designated by Delta, in its sole discretion (“Placement Aircraft
Configuration”). Delta shall select, in its sole discretion, all suppliers to be
used to configure each Placement Aircraft in the Placement Aircraft
Configuration. [*]
G.
Prior to its respective In-Service Date, each of the Placement Aircraft shall be
in compliance with the then-current Delta Connection standards including, but
not limited to, with respect to WiFi, cabin carpets, seat belts, seat covers,
curtains, class dividers, seat track covers, bin strips (if applicable) and
laminates (the “Standards”). If any of the Placement Aircraft are not in
compliance with the Standards, each such noncompliant Placement Aircraft shall
undergo additional modifications to conform to such Standards (the “Placement
Aircraft Interior Modifications”). Delta shall select, in its sole discretion,
all suppliers to be used to perform the Placement Aircraft Interior
Modifications. [*]
4
H.
[*] Operator shall be solely responsible for any and all start-up costs and
transition fees associated with including the Placement Aircraft as Aircraft
under the Agreement including, without limitation, all costs and fees related to
induction, positioning, maintenance bridging and “sunshine” maintenance of each
Placement Aircraft, and Operator shall not be entitled to any reimbursement
thereof by Delta under the Agreement or otherwise.
I.
Notwithstanding anything in the Agreement to the contrary, the parties agree
that the monthly Aircraft Rent/Ownership Cost with respect to each of the
Placement Aircraft shall be equal to [*] (subject to potential Mark-Up in
accordance with Article 3 of the Agreement). Such Aircraft Rent/Ownership Costs
shall commence on the actual In-Service Date of each such Placement Aircraft.
J.
(i) The parties acknowledge and agree that one or more of the Placement
Aircraft may require “C-checks” on their respective airframes prior to the end
of their respective terms under the Agreement. [*].
(ii) In addition, at the end of each Placement Aircraft’s respective term
under the Agreement, Delta shall pay to Operator in the month following the last
flight under the Agreement by the applicable Placement Aircraft an amount equal
to the product of (y) [*] (z) [*]
6.
[*]
[*]
7.
[*]
[*]
8.
[*]
[*]
D.
Section 3(L) of Amendment Three and Section 3(L) of Amendment Four are hereby
deleted in their entirety and of no further force and effect.
9.
Engine Maintenance Agreements.
At no time after the Amendment Number Seven Effective Date shall Operator enter
into any LLP or engine maintenance agreement or amendment with respect to any of
the engines associated with the ERJ 175 Baseline Aircraft, ERJ 170 Baseline
Aircraft or Placement Aircraft without the prior written consent of Delta, such
5
10.
Miscellaneous.
A.
This Amendment, together with the exhibits attached hereto, constitute the
and any other prior or contemporaneous agreements, whether written or oral, are
expressly superseded hereby.
B.
The Amendment may be executed in any number of counterparts, each of which shall
the same instrument.
C.
Amendment shall prevail.
{Signatures appear on following page}
6
Republic Airways Holdings Inc. Delta Air Lines, Inc.
By: /s/ Bryan K. Bedford By: /s/ Don Bornhorst
Name: Bryan K. Bedford Name: Don Bornhorst
Title: Chairman, President & CEO Title: SVP Delta Connection
Shuttle America Corporation
By: /s/ Bryan K. Bedford
Name: Bryan K. Bedford
7
EXHIBIT A
ERJ 175 Baseline Aircraft and
ERJ 175 Baseline Aircraft Engines
Engines
Fleet
Tail Number
Serial Number
In-Service Date
Baseline Extension Term
Subsequent Extension Term
ESN 1
ESN 2
1
E175 Baseline
[*]
[*]
[*]
[*]
[*]
[*]
[*]
2
E175 Baseline
[*]
[*]
[*]
[*]
[*]
[*]
[*]
3
E175 Baseline
[*]
[*]
[*]
[*]
[*]
[*]
[*]
4
E175 Baseline
[*]
[*]
[*]
[*]
[*]
[*]
[*]
5
E175 Baseline
[*]
[*]
[*]
[*]
[*]
[*]
[*]
6
E175 Baseline
[*]
[*]
[*]
[*]
[*]
[*]
[*]
7
E175 Baseline
[*]
[*]
[*]
[*]
[*]
[*]
[*]
8
E175 Baseline
[*]
[*]
[*]
[*]
[*]
[*]
[*]
9
E175 Baseline
[*]
[*]
[*]
[*]
[*]
[*]
[*]
10
E175 Baseline
[*]
[*]
[*]
[*]
[*]
[*]
[*]
11
E175 Baseline
[*]
[*]
[*]
[*]
[*]
[*]
[*]
12
E175 Baseline
[*]
[*]
[*]
[*]
[*]
[*]
[*]
13
E175 Baseline
[*]
[*]
[*]
[*]
[*]
[*]
[*]
14
E175 Baseline
[*]
[*]
[*]
[*]
[*]
[*]
[*]
15
E175 Baseline
[*]
[*]
[*]
[*]
[*]
[*]
[*]
16
E175 Baseline
02/24/24
02/24/29
[*]
[*]
Spare engines
Engines
E175 Baseline
[*]
E175 Baseline
[*]
E175 Baseline
[*]
8
EXHIBIT B
ERJ 170 Baseline Aircraft and
ERJ 170 Baseline Aircraft Engines
Engines
Fleet
Tail Number
Serial Number
In-Service Date
Amended Expiration Date
Baseline Aircraft Extension Term
ESN 1
ESN 2
1
E170 Baseline
[*]
[*]
[*]
[*]
[*]
[*]
[*]
2
E170 Baseline
[*]
[*]
[*]
[*]
[*]
[*]
[*]
3
E170 Baseline
[*]
[*]
[*]
[*]
[*]
[*]
[*]
4
E170 Baseline
[*]
[*]
[*]
[*]
[*]
[*]
[*]
5
E170 Baseline
[*]
[*]
[*]
[*]
[*]
[*]
[*]
6
E170 Baseline
[*]
[*]
[*]
[*]
[*]
[*]
[*]
7
E170 Baseline
[*]
[*]
[*]
[*]
[*]
[*]
[*]
8
E170 Baseline
[*]
[*]
[*]
[*]
[*]
[*]
[*]
9
E170 Baseline
[*]
[*]
[*]
[*]
[*]
[*]
[*]
10
E170 Baseline
[*]
[*]
[*]
[*]
[*]
[*]
[*]
11
E170 Baseline
[*]
[*]
[*]
[*]
[*]
[*]
[*]
12
E170 Baseline
[*]
[*]
[*]
[*]
[*]
[*]
[*]
13
E170 Baseline
[*]
[*]
[*]
[*]
[*]
[*]
[*]
14
E170 Baseline
[*]
[*]
[*]
10/01/21
10/01/26
[*]
[*]
9
Placement Aircraft and
Placement Aircraft Engines
Engines
Fleet
Tail Number
Serial Number
In-Service Date
Placement Aircraft Term
ESN 1
ESN 2
1
E170 Placement
[*]
[*]
09/09/21
[*]
[*]
2
E170 Placement
[*]
[*]
[*]
[*]
[*]
[*]
3
E170 Placement
[*]
[*]
[*]
[*]
[*]
[*]
4
E170 Placement
[*]
[*]
[*]
[*]
[*]
[*]
5
E170 Placement
[*]
[*]
[*]
[*]
[*]
[*]
6
E170 Placement
[*]
[*]
[*]
[*]
[*]
[*]
7
E170 Placement
[*]
[*]
[*]
[*]
[*]
[*]
8
E170 Placement
[*]
[*]
[*]
[*]
[*]
[*]
9
E170 Placement
[*]
[*]
04/15/22
[*]
[*]
I\4814320.1
10 |
EXHIBIT 10.14
[ex1014001.jpg]
[ex1014002.jpg]
[ex1014003.jpg]
[ex1014004.jpg]
[ex1014005.jpg]
[ex1014006.jpg]
[ex1014007.jpg]
[ex1014008.jpg]
[ex1014009.jpg]
[ex1014010.jpg]
[ex1014011.jpg]
|
CUSIP No. 60979P 105 Page1 of 24 Pages UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D/A (Amendment No. 8) INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a) Under the Securities Exchange Act of 1934* Monogram Residential Trust, Inc. (Name of Issuer) Common Stock, $0.0001 par value per share (Title of Class of Securities) 60979P 105 (CUSIP Number) Yehuda Hecht Madison International Realty 410 Park Avenue, 10th Floor New York, New York 10022 (212) 688-8777 With a copy to: Lee S. Parks Fried, Frank, Harris, Shriver & Jacobson LLP One New York Plaza New York, NY 10004 (212) 859-8000 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) July 05, 2017 (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D/A, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box. £ Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent. *The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). CUSIP No. 60979P 105 Page2 of 24 Pages 1 NAME OF REPORTING PERSON MIRELF V REIT Investments LLC 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) o 3 SEC USE ONLY 4 SOURCE OF FUNDS Not Applicable 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) o 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH 7 SOLE VOTING POWER NONE 8 SHARED VOTING POWER 9 SOLE DISPOSITIVE POWER NONE 10 SHARED DISPOSITIVE POWER 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES o 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 3.94% 14 TYPE OF REPORTING PERSON OO CUSIP No. 60979P 105 Page3 of 24 Pages 1 NAME OF REPORTING PERSON MIRELF V REIT 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) o 3 SEC USE ONLY 4 SOURCE OF FUNDS Not Applicable 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) £ 6 CITIZENSHIP OR PLACE OF ORGANIZATION Maryland NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH 7 SOLE VOTING POWER NONE 8 SHARED VOTING POWER 9 SOLE DISPOSITIVE POWER NONE 10 SHARED DISPOSITIVE POWER 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES o 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 3.94% 14 TYPE OF REPORTING PERSON OO CUSIP No. 60979P 105 Page4 of 24 Pages 1 NAME OF REPORTING PERSON Madison International Real Estate Liquidity Fund V, LP 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) o 3 SEC USE ONLY 4 SOURCE OF FUNDS Not Applicable 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) o 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH 7 SOLE VOTING POWER NONE 8 SHARED VOTING POWER 9 SOLE DISPOSITIVE POWER NONE 10 SHARED DISPOSITIVE POWER 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES o 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 3.94% 14 TYPE OF REPORTING PERSON PN CUSIP No. 60979P 105 Page5 of 24 Pages 1 NAME OF REPORTING PERSON Madison International Holdings V, LLC 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) o 3 SEC USE ONLY 4 SOURCE OF FUNDS Not Applicable 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) o 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH 7 SOLE VOTING POWER NONE 8 SHARED VOTING POWER 9 SOLE DISPOSITIVE POWER NONE 10 SHARED DISPOSITIVE POWER 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES o 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 3.94% 14 TYPE OF REPORTING PERSON OO CUSIP No. 60979P 105 Page6 of 24 Pages 1 NAME OF REPORTING PERSON Madison International Realty V, LLC 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) o 3 SEC USE ONLY 4 SOURCE OF FUNDS Not Applicable 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) o 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH 7 SOLE VOTING POWER NONE 8 SHARED VOTING POWER 9 SOLE DISPOSITIVE POWER NONE 10 SHARED DISPOSITIVE POWER 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES o 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 3.94% 14 TYPE OF REPORTING PERSON OO CUSIP No. 60979P 105 Page 7of 24 Pages 1 NAME OF REPORTING PERSON Madison International Realty Holdings, LLC 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) o 3 SEC USE ONLY 4 SOURCE OF FUNDS Not Applicable 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) o 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH 7 SOLE VOTING POWER NONE 8 SHARED VOTING POWER 9 SOLE DISPOSITIVE POWER NONE 10 SHARED DISPOSITIVE POWER 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES o 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 3.94% 14 TYPE OF REPORTING PERSON OO CUSIP No. 60979P 105 Page8of 24 Pages 1 NAME OF REPORTING PERSON MIRELF VI (AIV), LP 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) o 3 SEC USE ONLY 4 SOURCE OF FUNDS Not Applicable 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) o 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH 7 SOLE VOTING POWER NONE 8 SHARED VOTING POWER 0 9 SOLE DISPOSITIVE POWER NONE 10 SHARED DISPOSITIVE POWER 0 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 0 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES o 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0% 14 TYPE OF REPORTING PERSON PN CUSIP No. 60979P 105 Page9of 24 Pages 1 NAME OF REPORTING PERSON Madison International Real Estate Liquidity Fund VI, SCS 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) o 3 SEC USE ONLY 4 SOURCE OF FUNDS Not Applicable 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) o 6 CITIZENSHIP OR PLACE OF ORGANIZATION Luxembourg NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH 7 SOLE VOTING POWER NONE 8 SHARED VOTING POWER 0 9 SOLE DISPOSITIVE POWER NONE 10 SHARED DISPOSITIVE POWER 0 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 0 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES o 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0% 14 TYPE OF REPORTING PERSON OO CUSIP No. 60979P 105 Page10of 24 Pages 1 NAME OF REPORTING PERSON MIRELF VI (SCS Blocker), LP 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) o 3 SEC USE ONLY 4 SOURCE OF FUNDS Not Applicable 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) o 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH 7 SOLE VOTING POWER NONE 8 SHARED VOTING POWER 0 9 SOLE DISPOSITIVE POWER NONE 10 SHARED DISPOSITIVE POWER 0 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 0 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES o 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0% 14 TYPE OF REPORTING PERSON PN CUSIP No. 60979P 105 Page11of 24 Pages 1 NAME OF REPORTING PERSON Madison International Real Estate Liquidity Fund VI (TE), LP 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) o 3 SEC USE ONLY 4 SOURCE OF FUNDS Not Applicable 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) o 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH 7 SOLE VOTING POWER NONE 8 SHARED VOTING POWER 0 9 SOLE DISPOSITIVE POWER NONE 10 SHARED DISPOSITIVE POWER 0 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 0 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES o 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0% 14 TYPE OF REPORTING PERSON PN CUSIP No. 60979P 105 Page12of 24 Pages 1 NAME OF REPORTING PERSON Madison International Real Estate Liquidity Fund VI (T), LP 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) o 3 SEC USE ONLY 4 SOURCE OF FUNDS Not Applicable 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) o 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH 7 SOLE VOTING POWER NONE 8 SHARED VOTING POWER 0 9 SOLE DISPOSITIVE POWER NONE 10 SHARED DISPOSITIVE POWER 0 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 0 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES o 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0% 14 TYPE OF REPORTING PERSON PN CUSIP No. 60979P 105 Page13of 24 Pages 1 NAME OF REPORTING PERSON MIRELF VI (U.S.) LP 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) o 3 SEC USE ONLY 4 SOURCE OF FUNDS Not Applicable 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) o 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH 7 SOLE VOTING POWER NONE 8 SHARED VOTING POWER 0 9 SOLE DISPOSITIVE POWER NONE 10 SHARED DISPOSITIVE POWER 0 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 0 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES o 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0% 14 TYPE OF REPORTING PERSON PN CUSIP No. 60979P 105 Page14of 24 Pages 1 NAME OF REPORTING PERSON Madison International Holdings VI, LLC 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) o 3 SEC USE ONLY 4 SOURCE OF FUNDS Not Applicable 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) o 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH 7 SOLE VOTING POWER NONE 8 SHARED VOTING POWER 0 9 SOLE DISPOSITIVE POWER NONE 10 SHARED DISPOSITIVE POWER 0 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 0 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES o 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0% 14 TYPE OF REPORTING PERSON OO CUSIP No. 60979P 105 Page15of 24 Pages 1 NAME OF REPORTING PERSON Madison International Realty VI, LLC 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) o 3 SEC USE ONLY 4 SOURCE OF FUNDS Not Applicable 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) o 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH 7 SOLE VOTING POWER NONE 8 SHARED VOTING POWER 0 9 SOLE DISPOSITIVE POWER NONE 10 SHARED DISPOSITIVE POWER 0 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 0 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES o 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0% 14 TYPE OF REPORTING PERSON OO CUSIP No. 60979P 105 Page16of 24 Pages 1 NAME OF REPORTING PERSON MIRELF VI REIT 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) o 3 SEC USE ONLY 4 SOURCE OF FUNDS Not Applicable 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) o 6 CITIZENSHIP OR PLACE OF ORGANIZATION Maryland NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH 7 SOLE VOTING POWER NONE 8 SHARED VOTING POWER 0 9 SOLE DISPOSITIVE POWER NONE 10 SHARED DISPOSITIVE POWER 0 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 0 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES o 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0% 14 TYPE OF REPORTING PERSON OO CUSIP No. 60979P 105 Page17of 24 Pages 1 NAME OF REPORTING PERSON MIRELF VI REIT Investments II, LLC 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) o 3 SEC USE ONLY 4 SOURCE OF FUNDS Not Applicable 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) o 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH 7 SOLE VOTING POWER NONE 8 SHARED VOTING POWER 0 9 SOLE DISPOSITIVE POWER NONE 10 SHARED DISPOSITIVE POWER 0 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 0 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES o 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0% 14 TYPE OF REPORTING PERSON OO CUSIP No. 60979P 105 Page18of 24 Pages 1 NAME OF REPORTING PERSON Ronald M. Dickerman 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) o 3 SEC USE ONLY 4 SOURCE OF FUNDS Not Applicable 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) o 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH 7 SOLE VOTING POWER NONE 8 SHARED VOTING POWER 9 SOLE DISPOSITIVE POWER NONE 10 SHARED DISPOSITIVE POWER 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES o 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 3.94% 14 TYPE OF REPORTING PERSON IN CUSIP No. 60979P 105 Page19 of 24 Pages ITEM 1.SECURITY AND ISSUER This Amendment No. 8 (“Amendment No. 8”) to Schedule 13D amends and supplements the statement on Schedule 13D, filed with the Securities and Exchange Commission on December 22, 2014 (the “Original Schedule 13D”), by the Reporting Persons (as defined below), as amended by Amendment No. 1, filed with the Securities and Exchange Commission on May 1, 2015, as further amended by Amendment No. 2, filed with the Securities and Exchange Commission on August 28, 2015, as further amended by Amendment No. 3, filed with the Securities and Exchange Commission on November 6, 2015, as further amended by Amendment No. 4, filed with the Securities and Exchange Commission on February 19, 2016, as further amended by Amendment No. 5, filed with the Securities and Exchange Commission on May 12, 2016, as further amended by Amendment No. 6, filed with the Securities and Exchange Commission on January 30, 2017, as further amended by Amendment No. 7, filed with the Securities and Exchange Commission on March 28, 2017, relating to the common stock, par value $0.0001 per share (“Common Stock”), of Monogram Residential Trust, Inc. (the “Issuer”). Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Original Schedule 13D as previously amended by Amendment No. 1, Amendment No. 2, Amendment No. 3, Amendment No. 4, Amendment No. 5, Amendment No. 6 and Amendment No. 7. Except as specifically amended and supplemented by this Amendment No. 8, all other provisions of the Original Schedule 13D, as amended by Amendment No. 1, Amendment No. 2, Amendment No. 3, Amendment No. 4, Amendment No. 5, Amendment No. 6 and Amendment No. 7, shall remain in full force and effect. This Amendment No.8 is being filed by l MIRELF V REIT Investments LLC (“MIRELF V REIT Investments”) l MIRELF V REIT (“MIRELF V REIT”) l Madison International Real Estate Liquidity Fund V, LP (“MIRELF V”) l Madison International Holdings V, LLC (“Holdings”) l Madison International Realty V, LLC (“Realty”, and together with MIRELF V REIT Investments, MIRELF V REIT, MIRELF V and Holdings, the “Fund V Entities”) l MIRELF VI (AIV), LP (“MIRELF VI AIV”) l Madison International Real Estate Liquidity Fund VI, SCS (“Fund VI SCS”) l MIRELF VI (SCS Blocker), LP (“SCS Blocker”) l Madison International Real Estate Liquidity Fund VI (TE), LP (“Fund VI TE”) l Madison International Real Estate Liquidity Fund VI (T), LP (“Fund VI T”) l MIRELF VI (U.S.) LP (“MIRELF VI”) l Madison International Realty VI, LLC (“Realty VI”) l Madison International Holdings VI, LLC (“Holdings VI”) l MIRELF VI REIT (“MIRELF VI REIT”) l MIRELF VI REIT Investments II, LLC (“MIRELF VI REIT Investments II”, and together with MIRELF VI AIV, Fund VI SCS, SCS Blocker, Fund VI TE, Fund VI T, MIRELF VI, Realty VI, Holdings VI, and MIRELF VI REIT, the “Fund VI Entities”) l Madison International Realty Holdings, LLC (“Realty Holdings”) l Ronald M. Dickerman (“Mr. Dickerman” and, together with the Fund V Entities, the Fund VI Entities and Realty Holdings, the “Reporting Persons”). CUSIP No. 60979P 105 Page20 of 24 Pages This Amendment No. 8 amends Item 5 as set forth below. As set forth below, as a result of the transactions described herein, on July 6, 2017, each of the Reporting Persons ceased to be the beneficial owner of more than five percent of the Common Stock. The filing of this Amendment No. 8 represents the final amendment to the Schedule 13D and constitutes an exit filing for the Reporting Persons. ITEM 5.INTEREST IN SECURITIES OF THE ISSUER Item 5 is hereby amended in its entirety and replaced with the following: (a) and (b) The aggregate percentage of Common Stock reported as owned by each Reporting Person is based upon the 166,963,812 shares of Common Stock disclosed by the Issuer as outstanding as of March 31, 2017 in the Issuer’s Form 10-Q filed with the Securities and Exchange Commission on March 31, 2017. By virtue of the relationships reported under Item 2, the Fund V Entities, Realty Holdings and Mr. Dickerman may be deemed to have shared voting and dispositive power with respect to the Purchased Shares, the Additional Purchased Shares, the Second Additional Purchased Shares, the Third Additional Purchased Shares, the Fourth Additional Purchase Shares, the Fifth Additional Purchased Shares and the Sixth Additional Purchased Shares, which, based on calculations made in accordance with Rule 13d-2 promulgated under the Securities Exchange Act of 1934, as amended, constitute approximately 3.94% of the outstanding Common Stock. Holdings and Mr. Dickerman disclaim beneficial ownership of the shares of Common Stock beneficially owned by any of the other Funds V Entities to the extent that equity interests in such entities are held directly or indirectly by different persons. In addition, (i) each of the Fund V Entities disclaim beneficial ownership of the Common Stock beneficially owned by any other Fund V Entity and (ii) Realty and Realty Holdings disclaim beneficial ownership of shares of Common Stock beneficially owned by any of the Fund V Entities or Mr. Dickerman. As a result of the transactions described in Schedule I, on July 6, 2017, each of the Reporting Persons ceased to be the beneficial owner of more than five percent of the Common Stock. The filing of this Amendment No. 8 represents the final amendment to the Schedule 13D and constitutes an exit filing for the Reporting Persons. (c) Except as set forth on Schedule I hereto, none of the Reporting Persons or any other person or entity referred to in Item 2 has effected any transactions in the Common Stock during the 60 day period immediately preceding July 6, 2017. (d) By virtue of the relationships described in Item 2, each of the Reporting Persons may be deemed to have the power to direct the receipt of dividends declared on the remaining shares owned by the Reporting Persons. (e) Not applicable. CUSIP No. 60979P 105 Page21 of 24 Pages Signature After reasonable inquiry and to the best of its knowledge and belief, the undersigned certify that the information set forth in this statement is true, complete and correct. Dated: July 6, 2017 MIRELF V REIT Investments LLC MIRELF V REIT By: MIRELF V REIT, By: Madison International Real Estate Liquidity Fund V, LP, its Managing Member its Trustee By: Madison International Real Estate Liquidity Fund V, LP, By: Madison International Holdings V, LLC, its Trustee its General Partner By: Madison International Holdings V, LLC, By: /s/ Ronald M. Dickerman its General Partner Ronald M. Dickerman, Managing Member By: /s/ Ronald M. Dickerman Ronald M. Dickerman, Managing Member Madison International Real Estate Liquidity Fund V, LP Madison InternationalRealty V, LLC By: Madison International Holdings V, LLC, By: Madison International Realty Holdings, LLC, its General Partner its Managing Member By: /s/ Ronald M. Dickerman By: /s/ Ronald M. Dickerman Ronald M. Dickerman, Managing Member Ronald M. Dickerman, Managing Member Madison InternationalHoldings V, LLC Madison International Realty Holdings, LLC By: /s/ Ronald M. Dickerman By: /s/ Ronald M. Dickerman Ronald M. Dickerman, Managing Member Ronald M. Dickerman, Managing Member MIRELF VI (U.S.), LP MIRELF VI REIT By: Madison International Holdings VI, LLC By: MIRELF VI (U.S.), LP its General Partner its Trustee By: /s/ Ronald M. Dickerman By: Madison International Holdings VI, LLC Ronald M. Dickerman, Managing Member its General Partner By: /s/ Ronald M. Dickerman Ronald M. Dickerman, Managing Member CUSIP No. 60979P 105 Page22 of 24 Pages Madison International Realty VI, LLC MIRELF VI (AIV), LP By: Madison International Realty Holdings, LLC, By: Madison International Holdings VI, LLC, its Managing Member its General Partner By: /s/ Ronald M. Dickerman By: /s/ Ronald M. Dickerman Ronald M. Dickerman, Managing Member Ronald M. Dickerman, Managing Member MIRELF VI (SCS Blocker), LP Madison International Real Estate Liquidity Fund VI, SCS By: Madison International Holdings VI, LLC, By: Madison International Real Estate (Lux) GP, S.à r.l., its General Partner its General Partner By: /s/ Ronald M. Dickerman By: /s/ Ronald M. Dickerman Ronald M. Dickerman, Managing Member Ronald M. Dickerman, Manager Madison International Real Estate Liquidity Fund VI (T) LP Madison International Real Estate Liquidity Fund VI (TE) LP By: Madison International Holdings VI, LLC, By: Madison International Holdings VI, LLC, its General Partner its General Partner By: /s/ Ronald M. Dickerman By: /s/ Ronald M. Dickerman Ronald M. Dickerman, Managing Member Ronald M. Dickerman, Managing Member Madison International Holdings VI, LLC By: /s/ Ronald M. Dickerman Ronald M. Dickerman, Managing Member CUSIP No. 60979P 105 Page23 of 24 Pages Ronald M. Dickerman MIRELF VI REIT Investments II, LLC /s/ Ronald M. Dickerman By: MIRELF VI REIT, its Sole Member By: MIRELF VI (U.S.), LP, its Trustee By: Madison International Holdings VI, LLC, its General Partner By: /s/ Ronald M. Dickerman Ronald M. Dickerman, Managing Member CUSIP No. 60979P 105 Page24 of 24 Pages SCHEDULE I Shares of Common Stock acquired or sold by the Reporting Persons during the past sixty (60) days. The transactions described below were effected in the open market through brokers. Trade Date Shares Purchased Price Per Share (1)(2) Total Price (1) 7/5/2017 7/6/2017 Not including any brokerage commissions or service charges. Denotes average Price Per Share for the corresponding Trade Date
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EXHIBIT 13.1 CHIEF EXECUTIVE OFFICER CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350 In connection with this annual report of Ultrapetrol (Bahamas) Limited (the “Company”) on Form 20-F for the period ending December 31, 2008, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), the undersigned Chief Executive Officer of the Company, hereby certifies pursuant to 18 U.S.C. Section 1350 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. This certification is made solely for the purposes of 18 U.S.C. Section 1350, and not for any other purpose. Dated:March 17, 2009 /s/ Felipe Menendez Ross Felipe Menendez Ross Director, Chief Executive Officer, and President
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Exhibit 10.1
Purchase Agreement
Investor Leo Motors, Inc. (hereinafter referred to as "A") and investee Shi Chul
Kang, 100% share owner of Leo Members, Inc. (hereinafter referred to as "B")
hereby enter an investment agreement under the conditions stated below.
Article 1 (Purpose of the Contract)
As "A" decided to purchase the whole shares possessed by "B." This agreement is
set to determine the details and other necessary related general affairs, and to
clearly define the rights and obligations between "A" and "B".
Article 2 (Investment Actions)
"A" shall pay 300 million won (\300,000,000) to "B" until March 8, 2017 to
purchase the 100% ownership (3,000,000 shares of Leo Members, Inc.) which "B"
owns.
Article 3 (Obligation of Notification)
If an event that can cause a serious problem in business execution shall occur,
"B" must immediately notify "A" of it without any hesitation.
1
Article 4 (Endorsement of Rights)
"A" cannot directly or indirectly endorse any rights or obligations stated on
this agreement to a third party without "B"'s prior written consent. All
endorsement of rights and obligations made without "B"'s prior written consent
is not valid or effective.
Article 5 (Settlement of Conflict)
If any disputes shall occur for this agreement, solution should be seek through
a discussion between both parties, yet if they cannot settle the dispute, it
shall be resolved with a lawsuit under the jurisdiction of Seoul District Court.
IN WITNESS WHEREOF, Both PARTIES have executed this Agreement as of the date and
year first above written in two copies, both original, one for each of the
PARTIES.
March 8, 2017
2
Investor (A)
Company name: Leo Motors, Inc.
Address: 3887, Pacific Street, Las Vegas, Nevada, USA
Co-CEO: Shi Chul Kang
CO-CEO: Jun Heng Park
Investee (B)
Company name: Leo Members, Inc.
Address: ES Tower 6F, Teheran-ro 52 Gil 17, Gangnam-Gu, Seoul, Korea 06212
Shi Chul Kang
3
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EXHIBIT 10.334
NOTE
U.S. $523,663.00
February 28, 2014
FOR VALUE RECEIVED, the undersigned, CHRISTOPHER F. BROGDON ("Brogdon"),
promises to pay to the order of ADCARE HEALTH SYSTEMS, INC., a Georgia
corporation ("AdCare"), the principal sum of FIVE HUNDRED TWENTY-THREE THOUSAND
SIX HUNDRED SIXTY-THREE AND 00/100 DOLLARS ($523,663.00) (the "Principal").
The unpaid Principal of this Note (the "Note") shall not bear interest except as
set forth in the immediately following sentence. If any payment required under
this Note is not made within five (5) days of the due date, interest on the
outstanding Principal balance shall accrue as of March 1, 2014 at the rate often
The Principal balance plus accrued interest (if any) shall be due and payable in
five (5) equal monthly payments as follows:
Commencing on September 1, 2014 and continuing on the first day of each month
thereafter, equal payments of principal in the amount of $104,732.60 plus
accrued interest (if any) shall be due and payable. The unpaid Principal of this
Note, together with all accrued and unpaid interest (if any), shall be due and
payable on December 31, 2014 (the "Maturity Date").
Notwithstanding any provision hereof, the Principal balance, plus accrued
interest (if any), shall be paid upon the closing of the sale of the Riverchase
Facility to the extent of Net Sales Proceeds from such sale. If Net Proceeds
from such sale are not sufficient to pay the Principal balance plus accrued
interest (if any) in full, the remaining outstanding Principal balance shall be
due and payable on the terms set forth in the immediately preceding paragraph.
All capitalized but undefined terms used in this paragraph shall have the
meanings set forth in that certain Agreement of even date herewith between
Brogdon and his affiliated entities, on the one hand, and AdCare and its
affiliated entities, on the other hand.
Brogdon acknowledges and agrees that all amounts due under this Note are due and
payable as stated herein, and AdCare has no obligation to renew or extend this
Note. The books and records of AdCare shall constitute prima facie evidence of
all matters with respect to the amounts due hereunder. Payments shall be applied
first to interest and then to Principal.
ADDITIONAL COVENANTS:
1.
Default.
a.
Each of the following shall be a default ("Default") under this Note:
(a)failure of Brogdon to pay any amount due hereunder, or any part hereof, or
any extension or renewal hereof, within five (5) days of the due date; or
(b)Brogdon's failure to perform or comply with any of the covenants or
agreements contained herein.
b. If this Note is placed in the hands of one or more attorneys for
collection or in the hands of one or more attorneys for representation of AdCare
in connection with any bankruptcy, probate or other court or by any other legal
proceedings, Brogdon shall pay the fees and expenses of such attorneys in
addition to the full amount due hereon, whether or not litigation is commenced.
c. In the event (i) that there occurs any Default hereunder; or (ii) that
Brogdon shall become insolvent or make an assignment for the benefit of his
creditors; or (iii) that a petition is filed or any other proceeding is
commenced under the Federal Bankruptcy Act or any state insolvency statute by or
against Brogdon; or (iv) that a receiver or similar person is appointed for
Brogdon; then, in any such event, the entire unpaid Principal balance due hereon
and all accrued interest at the option of the holder hereof shall become
immediately due and payable without any notice or demand. Failure to exercise
the event of any subsequent Default.
2. Prepayment. Brogdon may prepay this Note at any time without premium or
penalty.
3. Waivers by Brogdon and Others. Brogdon and all endorsers, sureties and
guarantors hereof hereby severally waive presentment for payment, notice of
non-payment, protest, and notice of protest, and diligence in enforcing payment
hereof, and consent that the time of payment may be extended without notice. The
makers, endorsers, guarantors, and sureties executing this Note also waive any
and all defenses which they may have upon the ground of any extension of time of
payment which may be given by the holder of this indebtedness to any of the
undersigned, or to any other person assuming payment hereof.
4. Amendments, Modifications and Waiver. No amendment, modification or waiver
of any provision of this Note, nor consent to any departure by Brogdon
therefrom, shall be effective unless the same shall be in a writing signed by
AdCare, and then only in the specific instance and for the purpose for which
given. No failure or delay on the part of AdCare to exercise any right under
exercise by AdCare of any right under this Note preclude any other or further
exercise thereof, or the exercise of any other right. Each and every right
granted to AdCare under this Note or allowed to it at law or in equity shall be
deemed cumulative and such remedies may be exercised from time to time
concurrently or consecutively at AdCare's option.
5. Payment. All payments due under this Note shall be paid to AdCare at such
place as AdCare may direct. Whenever a payment is due on a day other than a
business day (all days except Saturday, Sunday and legal holidays under federal
or Georgia law), the maturity thereof shall be extended to the next succeeding
business day. If any amount due hereunder is not paid within ten (10) days of
the date when due, Brogdon agrees to pay an administrative and late charge equal
to the lesser of (a) five percent (5%) on and in addition to the amount of such
overdue amount, or (b) the maximum charges allowable under applicable law.
6. Notices. All notices or other communications required or otherwise given
pursuant to this Note shall be in writing and shall be delivered by hand
delivery or nationally recognized overnight courier to the following addresses:
If to Brogdon:
Christopher F. Brogdon
Two Buckhead Plaza
3050 Peachtree Road NW
Suite 355
Atlanta, Georgia 30305
If to AdCare:
1145 Hembree Road
Roswell, Georgia 30076
7. Usury Limitation. Notwithstanding anything to the contrary contained
herein, at no time shall Brogdon be obligated to pay interest on this Note at a
rate which would subject AdCare to either civil or criminal liability because
such rate exceeds the maximum interest rate permitted under applicable legal
requirements. If the terms of this Note would otherwise require Brogdon to pay
interest on the loan at a rate in excess of such maximum rate, the rate of
interest on the loan shall immediately be reduced to such maximum rate, the
interest payable on the loan shall be computed at such maximum rate, and all
prior payments of interest in excess of such maximum rate shall be applied as
payments in reduction of principal. If such excessive interest exceeds the
amount owing to AdCare, then AdCare shall refund any such excess to Brogdon. All
sums paid or agreed to be paid to AdCare in connection with the loan which are,
under applicable legal requirements, characterized as interest, shall, to the
throughout the full stated term of the loan until paid in full so that the
actual rate of interest on the loan is uniform throughout the term of the loan.
8. Paragraph Headings. Paragraph headings are inserted for convenience of
reference only, do not form part of this Note and shall be disregarded for
purposes of the interpretation of the terms of this Note.
covenant and obligation of Brogdon under this Note.
ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA APPLICABLE TO CONTRACTS MADE
AMERICA. TO THE FULLEST EXTENT PERMITTED BY LAW, BROGDON HEREBY UNCONDITIONALLY
AND IRREVOCABLY WAIVES ANY CLAIMS TO ASSERT THAT THE LAW OF ANY OTHER
JURISDICTION GOVERNS THIS NOTE.
IN WITNESS WHEREOF, Brogdon has executed this Note as of the date first written
above.
BROGDON:
Christopher F. Brogdon
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Exhibit 10.1
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this “Agreement”), dated August 22, 2008, is entered
into by and between CREDO Petroleum Corporation, a Colorado corporation (the
“Company”), and Timothy J. Pownell, an individual (the “Employee”), to be
effective as of September 8, 2008 (the “Effective Date”).
for the employment of Employee as President and Chief Operating Officer of the
Company;
1. Employment. The Company hereby
2. Term. The term of Employee’s
employment under this Agreement (the “Term”) will commence on the Effective Date
and end on December 31, 2010; provided, however, that on January 1, 2011 and on
each succeeding anniversary thereafter, the Term will be automatically extended
by an additional year, unless 30 days prior to any such succeeding anniversary
either Employee or the Company has given the other written notice to the
contrary (which notice is not rescinded before such anniversary date) or this
Agreement has otherwise been terminated as provided in this Agreement.
(a) During the Term, Employee shall have the
title of President and Chief Operating Officer of the Company and such duties
and responsibilities as are assigned to him by the Board of Directors of the
(b) Employee shall devote his exclusive
professional time, energy, and attention to the affairs and operations of the
Company, and shall use his best efforts to carry out his responsibilities under
this Agreement faithfully and efficiently; provided, however, that nothing
contained herein shall preclude Employee from (i) investing Employee’s personal
assets in such form or manner as will not require Employee’s services in any
capacity in the operations and affairs of the businesses in which such
investments are made, except as precluded in Section 6(b), or (ii) participating
in charitable or other not-for-profit activities as long as such activities do
not interfere with Employee’s work for the Company.
4. Compensation. During the Term:
(a) Salary. Employee shall initially be paid
an aggregate annual base salary of $250,000 per year (the “Base Salary”). The
Board shall review the Base Salary from time to time and may, in its sole
discretion, increase but not decrease it. The Base Salary shall be payable in
accordance with the Company’s normal business practices.
(i) Signing Bonus. Employee shall be
entitled to a signing bonus of $50,000, which shall be payable in full upon the
(ii) Guaranteed Bonus. Employee shall receive
an annual cash bonus of $50,000 for each of the years ending December 31, 2009
and 2010 if Employee remains in the employment of the Company on December 31 of
the relevant year (a “Guaranteed Bonus”).
(iii) Initial Annual Incentive Bonuses. For the
years ended December 31, 2009 and 2010, Employee will also be eligible to
receive, at the discretion of the Board, an annual incentive bonus (an “Initial
Annual Incentive Bonus”) based on performance goals to be established from time
to time by the Board. An Initial Annual Incentive Bonus award of $50,000 or
less shall be paid in cash. In the event of an Initial Annual Incentive Bonus
award greater than $50,000, $50,000 shall be paid in cash and the remainder in
the form of stock options, 50% of which shall vest on the first anniversary of
the date of grant and the remainder of which shall vest on the second
(iv) Subsequent Annual Incentive Bonuses. For each
year subsequent to December 31, 2010, Employee will be eligible to receive, at
the discretion of the Board, an annual incentive bonus (a “Subsequent Annual
Incentive Bonus”) based on performance goals to be established from time to time
by the Board. The form of a Subsequent Annual Incentive Bonus shall be
determined by the Board; provided, however, that Employee shall have the option
to receive up to 50% of a Subsequent Annual Incentive Bonus in cash and the
remainder in the form of stock options, 50% of which shall vest on the first
anniversary of the date of grant and the remainder of which shall vest on the
second anniversary of the date of grant. Notwithstanding the foregoing,
Employee may elect to receive all of a Subsequent Annual Incentive Bonus in the
form of stock options, in which case 50% of those stock options will vest
immediately, and the remaining 50% will vest ratably over two years as described
(v) Bonus Payments. Each Guaranteed Bonus,
Initial Annual Incentive Bonus and Subsequent Annual Incentive Bonus, or portion
thereof, that is payable in cash shall be paid in accordance with the Company’s
normal business practices, but no later than March 15 of the calendar year
following the year in which the bonus accrues.
(c) Stock Options. On the Effective Date, the
Company shall grant to Employee incentive stock options to acquire a number of
shares of the Company’s common stock equal to (i) $500,000 divided by (ii) the
closing trading price of the Company’s common stock on the Effective Date.
One-third of such options shall vest on each of the first, second and third
(d) Stock Option Terms.
(i) Value. For the purposes of this
Agreement, the dollar value of stock options granted hereunder shall be
determined in good faith by the Board in a manner consistent with the Company’s
determination of such value for financial reporting purposes.
(ii) Exercise Price. The exercise price of the
options granted pursuant to Section 4(c) shall be equal to the average of the
daily volume-weighted average of the trading prices of the Company’s common
stock for the six months preceding the date hereof, as reported by NASDAQ;
provided, however, that in no event will such exercise price be less than the
“Fair Market Value” of the underlying shares, as that term is defined in the
Company’s 2007 Stock Option Plan (as the same may be amended from time to time,
the “Stock Option Plan”). Except as otherwise set forth in the relevant option
or other equity incentive plan, the exercise price of all other options granted
hereunder shall be the closing trading price of the Company’s common stock on
the date of grant on the principal exchange on which such stock is traded.
(iii) Plan. The stock options issuable pursuant
to this Agreement shall be issued under and subject to the terms of the Stock
Option Plan, including a customary award agreement as contemplated by the Stock
Option Plan, or such other plan or plans as may be adopted from time to time by
the Company.
(e) Other Benefits. During the Term,
(i) Employee shall be entitled to participate in the Company’s 401(k) plan
subject to plan entry requirements, (ii) Employee and/or Employee’s family, as
benefits under, to the extent provided by the Company, medical, prescription and
dental plans, (iii) Employee shall be provided $500,000 of term life insurance
in the name of Employee and (iv) Employee shall be entitled to be reimbursed for
customary club dues not to exceed $10,000 per calendar year.
(f) Expenses and Allowances. Employee is
authorized, in carrying out his responsibilities and duties under this
Agreement, to incur reasonable business expenses for the benefit of the Company,
all of types and at levels determined in good faith to be consistent with his
duties as President and Chief Operating Officer of the Company. All such
expenses will either be paid directly by the Company or the Company shall
promptly reimburse Employee for expenditures upon the submission, from time to
time, of itemized accountings for such expenditures.
(g) Vacation. Employee shall be entitled to
four weeks paid vacation per year, which shall accrue and be subject to the
terms of the Company’s vacation policy, as the same may be amended from time to
time.
5. Termination.
(a) Certain Definitions. For the purposes of
this Section 5, the following terms shall be assigned the following meanings:
(i) “Accrued Obligations” means all accrued
Base Salary and Guaranteed Bonus amounts as in effect at the time of
termination, accrued vacation pay or other benefits and reasonable and necessary
business expenses incurred by Employee in connection with his duties, as
contemplated by Sections 4(a), (d) and (e), in each case to the extent unpaid as
of the date of termination and less applicable deductions and withholdings.
(ii) “Cause” shall mean (i) serious, willful
dishonesty toward, fraud upon, or deliberate injury or attempted deliberate
injury to, the Company, (ii) final conviction for a felony
or crime involving moral turpitude, (iii) willful refusal or willful failure to
follow the lawful directions of the Board or (iv) gross violation of the
Company’s or its successor’s established policies and procedures.
(iii) “Disability” means a physical or mental
impairment which renders Employee unable to perform the essential functions of
his position for a period expected to last at least 60 days, even with
reasonable accommodation which does not impose an undue hardship on the
Company. The Company reserves the right, in good faith, to make the
determination of disability under this Agreement based upon information supplied
by Employee and/or his medical personnel, as well as information from medical
personnel (or others) selected by the Company or its insurers.
of the following conditions, provided that Employee gives the Company written
notice of such condition within thirty (30) days of its occurrence, and the
Company fails to remedy the condition within thirty (30) days of its receipt of
notice:
(1) material diminution by the Company of
Employee’s authority, duties or responsibilities, which change would cause
Employee’s position to become one of less responsibility, importance or scope;
(2) material reduction by the Company of the
Base Salary, as it may be increased from time to time;
(3) the Company or its successor requiring
Employee to be based anywhere other than within thirty miles of the Company’s
principal office location or in or near Houston, Texas, except for required
business travel to an extent substantially consistent with Employee’s business
travel requirements; or
(4) any other action or inaction that
(b) Death or Disability. Employee’s employment
shall terminate automatically upon Employee’s death. If the Company determines
in good faith that the Disability of Employee has occurred, it may give to
Employee written notice of its intention to terminate Employee’s employment. In
such event, Employee’s employment with the Company shall terminate effective on
the 30th day after receipt of such notice by Employee unless, within the 30 days
after such receipt, Employee has returned to full-time performance of his
duties. Following termination pursuant to this Section 5(b), the Company’s only
obligation to Employee shall be to pay to Employee, in a lump sum, an amount
equal to the Accrued Obligations, plus payment to the Executive or his estate or
applicable welfare benefit plans.
(c) Termination for Cause or Without Good
Reason. This Agreement may be terminated at any time by the Company for Cause
or by Employee without Good Reason. In the case of termination by the Company
for Cause, Employee shall be given written notice by the Board of the intention
to terminate him for Cause, such notice (i) to state in reasonable detail the
termination for Cause
is based and (ii) to be given within six months of the date the Board has
reasonable notice of why the act(s) or failure(s) to act constitute grounds for
termination for Cause. Employee shall be entitled to a hearing before the
Board, provided he requests such hearing within ten calendar days of receiving
the written notice from the Board, and such hearing shall take place within 10
calendar days of Employee’s request. If, within five calendar days following
such hearing, Employee is furnished written notice by the Board confirming that,
in its reasonable judgment, grounds for Cause on the basis of the original
notice exist, he shall thereupon be terminated for Cause. In the case of
termination by Employee without Good Reason, the termination shall be effective
thirty (30) days after Employee notifies the Company of such termination.
Following termination pursuant to this Section 5(c), the Company’s only
equal to the Accrued Obligations.
(d) Termination Without Cause or for Good
Reason. This Agreement may be terminated at any time by the Company without
Cause or by Employee with Good Reason. In each case, such termination shall be
effective thirty (30) days following delivery of notice to the non-terminating
party. In the event of a termination pursuant to this Section 5(d), the Company
shall pay Employee, (i) in a lump sum, the Accrued Obligations and (ii) in
twelve equal monthly installments, the Base Salary in effect at the time of
termination, unless the termination occurs on or prior to December 31, 2009, in
which case the amount payable under this Section 5(d)(ii) shall be 50% of the
Base Salary in effect at the time of termination payable in six equal monthly
installments.
(e) Termination Upon a Change of Control. In
the event of a termination upon a “Change of Control,” as that term is defined
in the Company’s Key Employee Retention Plan (the “Employee Retention Plan”),
Employee shall be entitled to the benefits provided under Section 4 the Employee
Retention Plan, but based on a minimum of 12 years of service.
(f) Continued Benefits. If Employee’s
employment is terminated pursuant to Sections 5(b), 5(d) and 5(e), Employee
and/or Employee’s dependents, as applicable, shall be entitled to continue any
participation Employee had immediately prior to termination in each of the
Company’s welfare benefit plans as provided in Section 4 of the Employee
6. Confidentiality; Non-Competition;
Non-Solicitation.
Proprietary Information. As of the Effective Date, a fiduciary relationship of
confidence and trust is established between Employee and the Company as to all
“Proprietary Information” (as defined below) then existing and subsequently
created or developed by or for the Company, including but not limited to,
information created or developed by Employee during his employment or
association with the Company. Use and disclosure of the Proprietary Information
shall be governed by Employee’s duties to the Company under applicable law and
by the terms and conditions of this Agreement. Employee shall use Proprietary
Information only for the benefit of the Company and for no other purpose
whatsoever. Except in the performance of his duties for the benefit of the
Company, Employee shall not disclose to any person or entity or use any
Proprietary Information, in any form. Employee agrees and acknowledges that all
of the Proprietary Information, in any form, and copies and extracts thereof, is
and shall remain the sole and exclusive property of the Company, and Employee
shall, on request, assign such information of Employee’s origination to the
Company and/or return to the Company the originals and all
copies of all Proprietary Information provided to or acquired by Employee in
connection with his employment or association with the Company, and shall return
maintained and/or originated by Employee during the course of such employment or
association. For the purposes of this Agreement, the term “Proprietary
Information” shall mean all information which provides an actual or perceived
competitive or technological advantage to the Company relating to the Company or
its business, including, but not limited to, the Calliope Gas Recovery System
and Tractor Seal technologies and related intellectual property; provided,
however, that Proprietary Information shall not include any information which
was in Employee’s possession prior to the date hereof, as evidenced by bona fide
written, dated documents, or any information which is or becomes generally known
to the public through no fault of Employee or others owing duties of trust and
confidentiality to the Company. Employee acknowledges that Proprietary
Information may include information relating to applications and unknown uses of
the Proprietary Information, and that, while certain information described above
is excluded from the definition of Proprietary Information, the new uses and
unknown applications of any public information recognized by Employee also
constitute Proprietary Information. Furthermore, all new uses and unknown
applications of the Proprietary Information which become apparent to Employee
after the Effective Date shall be deemed Proprietary Information.
this Agreement, Proprietary Information shall remain such until excluded
pursuant to the proviso above.
Non-Competition. Except as may otherwise be approved in advance by the Board,
during the Term and for a period of eighteen months after the termination of his
employment, Employee shall not compete, directly or indirectly, with the
Company. Without limiting the generality of the foregoing, Employee shall not:
Company within ten miles of any geographic, or in any technologic, area where
the Company is active as of the date of termination; or
partnership, corporation, or any other entity engaged in any business that
competes with the business of the Company within ten miles of any geographic, or
in any technologic, area where the Company is active as of the date of
termination.
For the purposes of this Agreement, the Company will be considered active in a
geographic area where (A) as of the date of termination, it possesses an
interest in one or more oil and gas properties (including producing,
non-producing, leasehold and mineral interests), or is attempting or intends to
lease, purchase or otherwise acquire an interest in one or more such properties
(including through a farmout or other arrangement) or (B) it has, within the
preceding three years, generated or invested in one or more prospects through
the acquisition, reprocessing or interpretation of seismic data. Without
limiting the generality of the foregoing, Employee understands, acknowledges and
agrees that he will be competing if he engages in any or all of the activities
set forth in this Section 6(b) directly as an individual for his own account, or
indirectly as a partner, joint venturer, employee, agent, salesman, consultant,
officer and/or director of any firm, association, corporation, or other entity,
or as a stockholder of any corporation in which he owns, directly or indirectly,
individually or in the aggregate, more than one percent (1%) of the outstanding
stock.
Non-Solicitation. During the Term and for a period of eighteen months after the
termination of Employee’s employment either by the Company for Cause or by
Employee without Good Reason, Employee shall not directly or indirectly solicit
or induce or attempt to solicit or induce any employee(s), agent(s) or
other association with the Company.
Reasonableness of Restrictions. Employee agrees that the covenants set forth in
Sections 6(b) and 6(c) are reasonable with respect to their duration and scope.
In the event that any of the provisions of Sections 6(b) and 6(c) shall be
7. Injunctive Relief. The parties hereto
agree that the Company would suffer irreparable harm from a breach by Employee
breach by Employee of any of the provisions of this Agreement, the Company, or
equity of competent jurisdiction for specific performance, injunctive or other
provisions hereof, and that, in the event of such a breach or threat thereof,
8. Governing Law; Venue. This Agreement
and the legal relations hereby created between the parties hereto shall be
State of Colorado, without regard to conflicts of laws principles thereof. Any
actions under or with respect to this Agreement shall be filed only in the state
or federal courts located in the State of Colorado and the parties consent to
the jurisdiction and venue of solely such courts.
9. Taxes.
(a) Except as otherwise provided in Section 11,
and to the extent specifically provided in Section 10, Employee shall be solely
liable for Employee’s tax consequences of compensation and benefits payable
(b) In order to comply with all applicable
other applicable taxes.
10. Section 409A Savings Clause.
(a) It is the intention of the parties that
compensation or benefits payable under this Agreement not be subject to the
being imposed.
to the contrary, if on the date of termination of Employee’s employment with the
Company,
(i) Employee would not have a separation
from service within the meaning of Section 409A of the Code and the Treasury
Regulations thereunder (“Separation From Service”), and as a result of such
termination of employment would receive any payment that, absent the application
of this Section 10(b)(i), would be subject to additional tax imposed pursuant to
Section 409A of the Code, then such payment shall instead be payable on the date
that is the earliest of (A) Employee’s Separation From Service, (B) the date
Employee becomes disabled (within the meaning of Section 409A(a)(2)(C) of the
Code), (C) Employee’s death, or (D) such other date as will not result in such
payment being subject to such additional tax; and if
(ii) Employee is a specified employee within
payment sooner than six months after Employee’s separation from service that,
absent the application of this Section 10(b)(ii), would be subject to additional
is the earliest of (A) six months after Employee’s Separation From Service,
(B) Employee’s death, or (C) such other date as will not result in such payment
being subject to such additional tax.
11. Limitation of Payments to Employee.
payment (or portion thereof) to be made hereunder to Employee would constitute a
“parachute payment” for purposes of Section 280G(b)(2) of the Code, such payment
(or portion thereof) shall be reduced so that the remaining portion of such
payment (if any) does not constitute a parachute payment. In the event that
more than one payment (or portion thereof) would constitute a parachute payment,
the preceding sentence shall be applied to such payments in the order designated
by Employee until none of the remaining payments (or portions thereof)
constitute parachute payments. If Employee does not designate the order in
which such payments shall be reduced, each payment (or portion thereof) shall be
reduced in the order in which it is payable starting with the payment payable
last in time, and then the payment payable next to last in time, and so forth
until none of the remaining payments (or portions thereof) constitute parachute
payments.
12. Entire Agreement. This Agreement
Employee’s employment with the Company and the other subject matters addressed
herein between the parties. It is intended by the parties as a complete and
exclusive statement of the terms of their agreement. It supersedes and replaces
or oral, concerning the subject matter hereof. Any representation, promise or
agreement not specifically included in this Agreement shall not be binding upon
or enforceable against either party. This is a fully integrated agreement.
the Board (or a person expressly authorized thereby) and Employee, and no course
14. Miscellaneous.
(a) Binding Effect. This Agreement will be
binding upon and shall inure to the benefit of both Employee and the Company and
their respective successors, heirs and legal representatives, but neither this
Agreement nor any rights under this Agreement may be assigned by Employee or the
Company without the written consent of the other, and any assignment in
violation of the foregoing shall be void.
(b) Notices. Any notice required or permitted
to be given under this Agreement is to be in writing and either given by
personal delivery or deemed to be delivered three days after deposited, postage
pre-paid, in the U.S. certified or registered mail, return receipt requested,
addressed as follows:
CREDO Petroleum Corporation
Denver, Colorado 80202
Attn:
If to Employee:
Timothy J. Pownell
(c) Headings. The section and other headings
hereof
(d) Construction. Each party has cooperated in
the drafting and preparation of this Agreement. Hence, in any construction to
affect other provisions or applications of the Agreement which can be given
This Employment Agreement has been executed by the parties on the date and year
first above written.
CREDO PETROLEUM CORPORATION
By:
Name:
Title:
Timothy J. Pownell, individually
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Exhibit 10.1
THIS SECOND AMENDMENT TO CREDIT AGREEMENT dated as of October 16, 2015 (this
“Agreement”) is entered into among CBIZ Operations, Inc., an Ohio corporation
(the “Borrower”), CBIZ, Inc., a Delaware corporation (the “Company”), the
Lenders party hereto and Bank of America, N.A., as Agent and as the Issuing Bank
and as Swing Line Bank. All capitalized terms used herein and not otherwise
RECITALS
WHEREAS, the Borrower, the Company, the Lenders and Bank of America, N.A., as
Agent and as the Issuing Bank and as Swing Line Bank have entered into that
certain Credit Agreement dated as of July 28, 2014 (as amended or modified from
WHEREAS, in connection with the Credit Agreement, the Company and the other
Guarantors have each executed and delivered in favor of the Agent and the
Lenders a certain Guaranty pursuant to which the Company and the other
Guarantors have guaranteed the Borrower’s obligations under the Credit
Agreement;
Agreement as described below;
follows:
proviso at the end of the definition of “Eurodollar Rate” in its entirety to
read as follows:
“provided that (i) to the extent a comparable or successor rate is approved by
reasonably determined by the Agent and (ii) if the Eurodollar Rate shall be less
definition of “Obligations” in its entirety to read as follows:
covenants and duties of, the Borrower or the Company arising under any Loan
including (i) interest and fees that accrue after the commencement by or against
the Borrower or any Guarantor or any Affiliate thereof of any Insolvency
Proceeding naming such Person as the debtor in such Insolvency Proceeding
Insolvency Proceeding and (ii) obligations of the Borrower or the Company under
any Swap Contract to which a Lender or any Affiliate of a Lender is a party;
provided that the Obligations shall exclude any Excluded Swap Obligations.”
(c) Section 2.03 of the Credit Agreement is hereby amended to replace all
references to “11:00 a.m.” contained in the first sentence of clause (a) thereof
with “1:00 p.m.”.
(d) Section 2.04 of the Credit Agreement is hereby amended to replace all
references to “11:00 a.m.” contained in clause (b) thereof with “1:00 p.m.”.
(e) Section 2.06 of the Credit Agreement is hereby amended to replace the
reference to “11:00 a.m.” contained therein with “1:00 p.m.”.
(f) Clause (c) of Section 2.07 of the Credit Agreement is hereby amended and
“(c) General. Any prepayments pursuant to this Section 2.07 shall be applied
first to any Base Rate Loans then outstanding, then to Eurodollar Rate Loans
with the shortest Interest Periods remaining and then to any amounts due under
any Swap Contract between the Company or the Borrower and any Lender, or any
Contracts, Affiliates of Lenders); provided that if due to a Defaulting Lender’s
failure to fund any requested Borrowing, there are Non-Ratable Loans outstanding
at the time of any prepayment, such prepayment shall be applied first to
Non-Ratable Loans and then in accordance with the foregoing order. The Borrower
shall pay, together with each prepayment under this Section 2.07, accrued
interest on the amount prepaid and any amounts required pursuant to
Section 4.04.”
(g) Clause (d) of Section 2.15 of the Credit Agreement is hereby amended and
“(d) Release. Cash Collateral (or the appropriate portion thereof) provided to
following compliance with Section 11.08(g))) or (ii) the Agent’s good faith
accordance with Section 9.04 during the continuance of an Event of Default), and
(y) the Person providing Cash Collateral and the Issuing Bank or Swing Line
Bank, as applicable, may agree that Cash Collateral shall not be released but
obligations.”
(h) Section 3.02 of the Credit Agreement is hereby amended to replace the
(i) Section 4.01 of the Credit Agreement is hereby amended to add the following
new clause (g) immediately at the end of the existing clause (f) thereof:
“(g) For purposes of determining withholding Taxes imposed under FATCA, from and
after October 16, 2015, the Borrower and the Agent shall treat (and the Lenders
hereby authorize the Agent to treat) this Agreement as not qualifying as a
(j) Article IX of the Credit Agreement is hereby amended to add the following
new Section 9.04 immediately at the end of the existing Section 9.03 thereof:
“9.04 Application of Funds. After the exercise of remedies provided for in
Sections 2.15 and 2.16, be applied by the Agent in the following order:
disbursements of counsel to the Agent and amounts payable under Article IV)
Letter of Credit Fees) payable to the Lenders and the Issuing Bank (including
Issuing Bank and amounts payable under Article IV), ratably among them in
thereon, due under any Swap Contract between the Company or the Borrower and any
case of such Swap Contracts, Affiliates of Lenders) and the Issuing Bank in
them;
between the Company or the Borrower and any Lender, or any Affiliate of a
Affiliates of Lenders) and the Issuing Bank in proportion to the respective
Borrower pursuant to Article III, Section 2.07 and/or 2.15; and
paid in full, to the Borrower or as otherwise a Requirement of Law.
Subject to Article III and Section 2.15, amounts used to Cash Collateralize the
made with respect to payments from other Guarantors to preserve the allocation
to Obligations otherwise set forth above in this Section.”
(k) Section 10.10 of the Credit Agreement is hereby amended and restated in its
“10.10 Guaranty Matters. The Lenders irrevocably authorize the Agent, at its
Majority Lenders will confirm in writing the Agent’s authority to release any
Section 10.10. Except as otherwise expressly set forth herein, no Lender or
Affiliate of a Lender in its capacity as a party to a Swap Contract with the
Borrower or the Company that obtains the benefit of the provisions of
Section 9.04 or the Guaranty by virtue of the provisions hereof or any other
(including notice of or to consent to any amendment, waiver or modification of
the provisions hereof or of the Guaranty or any other Loan Document) other than
Article X to the contrary, the Agent shall not be required to verify the payment
Obligations arising under Swap Contracts except to the extent expressly provided
herein. The Agent shall not be required to verify the payment of, or that other
under Swap Contracts in the case of the Revolving Termination Date.”
(l) Clause (e) of Section 11.01 of the Credit Agreement is hereby amended and
“(e) change Section 2.14 or Section 9.04 in a manner that would alter the pro
Lender;”
(m) Clause (f) of Section 11.08 of the Credit Agreement is hereby amended to
restate the proviso at the end thereof in its entirety to read as follows:
“provided that notwithstanding anything contained herein to the contrary the
Company, the other Guarantors and the Lenders.
3. Miscellaneous.
(a) The Credit Agreement, and the obligations of the Borrower, the Company and
each Guarantor thereunder and under the other Loan Documents, are hereby
their terms. This Agreement shall constitute a Loan Document.
(b) The Company and each other Guarantor, (i) acknowledges and consents to all
of the terms and conditions of this Agreement, (ii) affirms all of each
Guarantor’s obligations under the Loan Documents (as amended hereby) and
(iii) agrees that this Agreement and all documents executed in
connection herewith do not operate to reduce or discharge each Guarantor’s
obligations under the Credit Agreement (as amended hereby) or the Loan
Documents.
(c) The Borrower and the Company hereby represent and warrant as follows:
(i) Each of the Borrower and the Company has taken all necessary action to
(ii) This Agreement has been duly executed and delivered by the Company and the
Borrower and constitutes each of the Borrower’s and the Company’s legal, valid
by the Borrower or the Company of this Agreement.
(d) Each of the Borrower and the Company represents and warrants to the Lenders
that (i) its representations and warranties set forth in Article VI of the
already qualified by materiality) as of the date hereof with the same effect as
and warranties expressly relate solely to an earlier date, in which case they
such representation or warranty is already qualified by materiality) as of such
this Agreement by telecopy or other electronic transmission shall be effective
shall be delivered.
(f) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND ANY CLAIMS, CONTROVERSY,
WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES THEREOF WHICH WOULD RESULT IN
THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION).
CBIZ OPERATIONS, INC., as the Borrower By:
Name: Title: CBIZ, INC. By:
Name: Title: BANK OF AMERICA, N.A., as Agent By:
Name: Title: BANK OF AMERICA, N.A., as a Lender and as the Issuing Bank By:
Name: Title:
Name: Title: JPMORGAN CHASE BANK, N.A., as a Lender By:
Name: Title: KEYBANK NATIONAL ASSOCIATION, as a Lender By:
Name: Title: U.S. BANK NATIONAL ASSOCIATION, as a Lender By:
Name: Title: FIFTH THIRD BANK, as a Lender By:
Name: Title: PNC BANK, NATIONAL ASSOCIATION, as a Lender By:
Name: Title: BMO HARRIS BANK, N.A., as a Lender By:
Name: Title:
GUARANTORS:
CBIZ ACCOUNTING, TAX & ADVISORY OF NEW ENGLAND, LLC
CBIZ ACCOUNTING, TAX & ADVISORY OF MINNESOTA, LLC
CBIZ MISSOURI, LLC
CBIZ NATIONAL TAX OFFICE, LLC
CBIZ LIFE INSURANCE SOLUTIONS, INC.
CBIZ SECURITY & ADVISORY SERVICES, LLC
CBIZ TECHNOLOGIES, LLC
MULTIPLE BENEFITS SERVICES, LLC
By:
Name:
Jerome P. Grisko, Jr.
Title:
Executive Vice President
ASSOCIATED INSURANCE AGENTS, INC.
CBIZ MHM, LLC
ONECBIZ, INC.
SUMMIT RETIREMENT PLAN SERVICES, INC.
By:
Name: Jerome P. Grisko, Jr. Title: President CBIZ, INC. By:
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EXHIBIT 99.1 News Release FOR IMMEDIATE RELEASE Contact: At The Investor Relations Company: Robert L. Johnson, Chairman & CEO Curt Kollar, CFO Woody Wallace 312-245-2700 706-645-1391 wwallace@tirc.com bjohnson@charterbank.net or ckollar@charterbank.net CHARTER FINANCIAL ANNOUNCES FISCAL 2010 RESULTS · Net Income of $5,935,000 for the Fiscal Year · Completes Incremental 2nd Step Capital Raise · Completes Core Systems Conversion for McIntosh Commercial Bank Acquisition · Strengthens Balance Sheet; Builds Cash · Common Stock Listed on NASDAQ; Added to Wilshire 5000 WEST POINT, Georgia, December 8, 2010—Charter Financial Corporation (NASDAQ: CHFN) today reported net income for its fiscal year ended September 30, 2010 of $5.9 million, or $0.32 per basic and diluted share, compared with $2.3 million, or $0.13 per basic and $0.12 per diluted share, for the fiscal year ended September 30, 2009.The higher net income was primarily attributable to a purchase gain on the assets acquired in the FDIC–assisted acquisition of McIntosh Commercial Bank (MCB) earlier this year.Net income for the quarter ended September 30, 2010 was $846,000, up from $510,000 for the corresponding quarter in the prior year. For the quarter ended March 31, 2010 and the year ended September 30, 2010, the Company retrospectively lowered the gain recognized on the purchase of MCB from $15.6 million to $9.3 million.This was required byFASB ASC 805, “Business Combinations,” when, during the quarter, the Company obtained third-party appraisals and other valuations for the majority of MCB’s collateral-dependent problem loans and foreclosed real estate indicating, overall, that the appraised values were lower than the company’s original estimates made as of the acquisition date.Any losses beyond the revised estimate, should they occur, would be covered by the FDIC at the 95% reimbursement rate provided in the loss share agreement with the FDIC. The Company’s total assets rose to $1.2 billion at September 30, 2010 from $1.1 billion at June 30, 2010 and $936.9 million at September 30, 2009.Loans outstanding were $599.4 million at September 30, 2010, of which $148.1 million, or 24.7%, were covered by FDIC loss sharing.This compared with loans outstanding of $630.6 million at June 30, 2010 and $552.6 million at September 30, 2009. Total interest income increased to $50.0 million for the year ended September 30, 2010, compared with $40.6 million for the prior fiscal year. Interest expense was slightly higher at $22.8 million for the year ended September 30, 2010, compared with $22.6 million for the prior fiscal year. Net interest income increased 51.4%, to $27.2 million for the year ended September 30, 2010, compared with $18.0 million for the prior fiscal year.The net interest margin rose to 3.19% for the year ended September 30, 2010, compared with 2.35% for the prior fiscal year.Higher interest income on loans and the accretion of purchase discounts from the FDIC-assisted acquisitions of Neighborhood Community Bank in June 2009 and McIntosh Commercial Bank in March 2010 contributed to the improved net interest margin. The Company’s net interest income was inhibited by the conservative levels of cash accumulated late in the fiscal year largely from acquired assets and lack of attractive reinvestment options including low securities yields and weak loan demand. “Integration of our FDIC-assisted acquisitions is progressing well.The operating system conversion for McIntosh Commercial Bank was completed in August.Claims filed under the loss sharing agreements have totaled $98.4 million since the acquisition dates.The majority of this amount has been collected from the FDIC.We have learned some things from both of our FDIC assisted deals that will help us in the future.The acquired assetswill take some time to work out and safely reinvest.Even with the adjustment of the initial McIntosh estimates we remain upbeat about the results to date and the opportunities that lie ahead,” said Robert L. Johnson, Chairman and CEO. The Company had net charge-offs of $5.3 million for the year ended September 30, 2010 compared with $3.5 million for the prior fiscal year. A loan loss provision of $5.8 million was recorded for the year ended September 30, 2010 compared to $4.6 million for the prior fiscal year for non-covered loans.This provision increased the allowance for loan losses to 2.12% of non-covered loans at September 30, 2010 compared with 1.98% of non-covered loans at September 30, 2009.Nonperforming assets not covered by loss sharing were $21.4 million at September 30, 2010, down from $24.0 million at June 30, 2010. Noninterest expense increased to $30.5 million for the year ended September 30, 2010 compared with $22.6 million for the prior fiscal year.The majority of the increase was attributed to the Company’s FDIC-assisted acquisitions, including the costs associated with acquiring, integrating and operating the additional branches as well as resolving the acquired problem assets. Noninterest income totaled $17.5 million for the year ended September 30, 2010 compared with $11.8 million for the prior fiscal year.Noninterest income in the 2010 fiscal year included $9.3 million in purchase gain on the McIntosh Commercial Bank FDIC-assisted acquisition.The Company also realized other-than-temporary impairment losses of $3.5 million in the year ended September 30, 2010. Total deposits amounted to $823.1 million at September 30, 2010 compared with $597.6 million at September 30, 2009.The MCB acquisition and implementation of the Company’s new Rewards checking program were the primary contributors to the increased deposits.Borrowings decreased to $212.0 million at September 30, 2010 from $227.0 million at September 30, 2009, due to the Company’s continued focus on decreasing wholesale funding.Borrowings were reduced an additional $60.0 million subsequent to the conclusion of the 2010 fiscal year. 2 The Company had total shareholders’ equity of $135.8 million at September 30, 2010 compared with $98.3 million at September 30, 2009.Mr. Johnson concluded, “CharterBank is well capitalized with core regulatory capital of 10.21% and this ratio was enhanced by thereduction in borrowings following the end of the fiscal year.The bank continues to be profitable in difficult economic times.Our loan portfolio is sound and we are working through and reserving for troubled credits.Our network of 16 branches services an attractive geographic region.We are well positioned with capital and expect more opportunities to acquire banks from the FDIC and to expand our footprint in the future.” On September 29, 2010, the Company announced that it had completed an incremental sale of common stock and began trading on the NASDAQ Capital Market under the symbol CHFN.Charter Financial Corporation, the holding company for CharterBank, sold approximately $34.2 million of common stock for net proceeds of $30.1 million. After the market close on October 15, 2010, the Company’s common stock was added to the Wilshire 5000 Total Market Index. About Charter Financial Corporation Charter Financial Corporation is a savings and loan holding company and the parent company of CharterBank, a growing full-service community bank. Charter Financial Corporation and subsidiary CharterBank are in the mutual holding company structure. CharterBank is headquartered in West Point, Georgia, and operatesbranches in West Central Georgia and East Central Alabama. CharterBank’s deposits are insured by the Federal Deposit Insurance Corporation. Forward-Looking Statements This release may contain “forward-looking statements” that may be identified by use of such words as “believe,” “expect,” “anticipate,” “should,” “planned,” “estimated,” and “potential.” Examples of forward-looking statements include, but are not limited to, estimates with respect to our financial condition and results of operation and business that are subject to various factors that could cause actual results to differ materially from these estimates. These factors include but are not limited to general and local economic conditions; changes in interest rates, deposit flows, demand for mortgages and other loans, real estate values, and competition; changes in accounting principles, policies, or guidelines; changes in legislation or regulation; and other economic, competitive, governmental, regulatory, and technological factors affecting our operations, pricing, products, and services. Any or all forward-looking statements in this release and in any other public statements we make may turn out to be wrong. They can be affected by inaccurate assumptions we might make or known or unknown risks and uncertainties. Consequently, no forward-looking statements can be guaranteed. The Company disclaims any obligation to subsequently revise or update any forward-looking statements to reflect events or circumstances after the date of such statements or to reflect the occurrence of anticipated or unanticipated events. 3 FINANCIAL TABLES FOLLOW Charter Financial Corporation Selected Financial Data (in thousands except share and per share data): September 30, June 30, Unaudited Unaudited Total Assets $ $ $ Cash and Cash Equivalents Loans Receivable, Net Non-covered Loans Receivable, Net Covered Loans Receivable, Net Mortgage Securities Available for Sale Core Deposits* Retail Deposits** Total Deposits Borrowings Total Stockholders’ Equity Book Value per Share $ $ $ Tangible Book Value per Share Minority Shares Outstanding Total Shares Outstanding –at Quarter End Weighted Average Total Shares Outstanding – Basic Weighted Average Total Shares Outstanding – Fully Diluted *Core deposits include transaction accounts, money market accounts, and savings accounts. **Retail deposits include Core Deposits, and certificates of deposits excluding brokered and wholesale. 4 Selected Operating Data (in thousands except share and per share data): Year Ended Three Months Ended September 30, September 30, June 30, March 31 Unaudited Unaudited Unaudited Unaudited Total Interest Income $ Total Interest Expense Net Interest Income Provision for Loan Losses Provision for Loan Losses on Covered Assets — Net Interest Income after Provision for Loan Losses Noninterest Income Noninterest Expense Income before Income Taxes Income Tax Expense (Benefit) ) 37 Net Income $ Earnings per Share $ Earnings per Share – Fully Diluted $ Cash Dividends per Share*** Net Charge-offs (Recoveries)- Legacy Charter Loans Deposit Fees Gain on Sale of Loans ***First Charter, MHC has waived a portion of these dividends, resulting in payment to the minority stockholders and the Holding Company. Year Ended Three Months Ended September 30, September 30, June 30, March 31, Unaudited Unaudited Unaudited Unaudited Performance Ratios: Return on Equity % Return on Assets Net Interest Margin Effective Tax Rate Expense (Benefit) ) Dividend Payout Ratio — Ratios of Assets Not Covered: Loan Loss Reserve as a % of Total Loans Loan Loss Reserve as a % of Nonperforming Assets Nonperforming Assets as a % of Total Loans and REO Net Chargeoffs (Recoveries) as a % of Average Loans 5
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EXHIBIT 10.04
AMENDMENT NO. 14 TO FOUR CORNERS PROJECT OPERATING AGREEMENT
THIS AMENDMENT NO. 14 TO FOUR CORNERS PROJECT OPERATING AGREEMENT (this
“Amendment”) is made and entered into as of December 30, 2013, by and among
ARIZONA PUBLIC SERVICE COMPANY, an Arizona corporation (“Arizona”); EL PASO
ELECTRIC COMPANY, a Texas corporation (“El Paso”); PUBLIC SERVICE COMPANY OF NEW
MEXICO, a New Mexico corporation (“New Mexico”); SALT RIVER PROJECT AGRICULTURAL
IMPROVEMENT AND POWER DISTRICT, an agricultural improvement district, organized
and existing under the laws of the State of Arizona (“Salt River Project”);
SOUTHERN CALIFORNIA EDISON COMPANY, a California corporation (“Edison”); and
TUCSON ELECTRIC POWER COMPANY, an Arizona corporation (“Tucson”). Arizona, El
Paso, New Mexico, Salt River Project, Edison and Tucson are herein collectively
RECITALS
The Parties entered into the Four Corners Project Operating Agreement, effective
as of March 1, 1967, and amendments thereto through Amendment No. 13, dated
December 1, 2010 (as amended by such amendments, the “Operating Agreement”),
providing, among other things, for the operation and management of the Four
Corners Project.
Edison’s interests in the Four Corners Project and the Facilities Switchyard
Following the Edison Interest Transfer, Arizona, the owner of the Initial Four
Corners Plant, intends to retire Units 1, 2 and 3 of the Initial Four Corners
Plant.
This Amendment will take effect on the Amendment No. 14 Effective Date, as
defined herein.
STATEMENT OF AGREEMENT
agree as follows:
the respective meanings ascribed to such terms in the Operating Agreement.
2.Amendment of Section 1. Section 1 is hereby amended to delete “SOUTHERN
CALIFORNIA EDISON COMPANY, a California corporation (hereinafter referred to as
“Edison”);” from the eighth line thereof.
3.Amendment of Section 2.5. Section 2.5 is hereby amended to substitute
“Southern California Edison Company, a California corporation (hereinafter
referred to as “Edison”)” for “Edison” in the first line thereof, and to add the
following sentence immediately
following the last sentence thereof: “Amendment No. 14 to this Agreement
provides, among other things, for updated ownership percentages as they existed
following the consummation of the transfer to Arizona by Edison of Edison’s
interests in the Four Corners Project pursuant to that certain Purchase and Sale
Agreement, dated as of November 8, 2010 (the “Purchase Agreement”). As of the
effective date of Amendment No. 14 to this Agreement, Edison will no longer be a
party to this Agreement, and all references to Edison as well as Edison’s
designation as a Participant, as that term is defined in Section 5.56 herein,
are limited to facts or matters occurring or agreements entered into prior to
the effective date of Amendment No. 14 to this Agreement.”
4.Amendment of Section 5.23. Section 5.23 is hereby amended to substitute “and
as amended from time to time” for the clause “and as amended by Amendment No. 3
executed contemporaneously with Amendment No. 6 to this Operating Agreement.”
5.Amendment of Section 5.47. Section 5.47 is hereby amended to add after the
word “Agreement” the following:
“, as amended from time to time. References in the Operating Agreement to the
effective date thereof or of a particular provision shall mean the effective
date of the original Operating Agreement or of the particular provision when
first referenced in the original Operating Agreement, as then amended.
6.Amendment of Section 5.56. Section 5.56 is hereby amended to delete “, Edison”
in the second line thereto, and to add the following clause immediately
following “Project” in the third line thereof: “, and, when referring
specifically to facts or matters occurring or agreements entered into prior to
the effective date of Amendment No. 14 to this Agreement, Edison”, and to add
the following sentence immediately following the last sentence thereof: “The
term “Original Participants” shall refer to Arizona, El Paso, New Mexico, Salt
River Project, Edison and Tucson.”
7.Amendment of Section 6.2. Section 6.2 is hereby amended to delete “, Edison”
8.Amendment of Section 8A.3.2. Section 8A.3.2 is hereby amended to add the
“Upon the retirement of each of Units 1, 2 and 3, this Section 8A.3.2 shall be
of no force and effect.”
9.Amendment of Section 8.2.3. Section 8.2.3 is hereby amended to read in full as
follows:
“Establish procedures for the delivery of coal to the Minimum Coal Storage Pile
if one is maintained.”
10.Deletion of Section 8.2.9. Section 8.2.9 is hereby deleted in its entirety
and Section 8.2.10 is renumbered Section 8.2.9.
2
11.Amendment of Section 17.1.1.2. Section 17.1.1.2 is hereby amended to
substitute “63%” for “15%” in the first line thereof, and to delete “Edison 48%”
12.Amendment of Section 17.1.1.3. Section 17.1.1.3 is hereby amended to
substitute “75.33%” for “43.33%” in the first line thereof, and to delete
“Edison 32%” in the second line thereof.
13.Amendment of Section 17.1.1.4. Section 17.1.1.4 is hereby amended to
substitute “52.23%” for “40.23%” in the first line thereof, and to delete
“Edison 12%” in the second line thereof.
14.Amendment of Section 17.1.1.6. Section 17.1.1.6 is hereby amended to
substitute “57.90%” for “54.44%” in the first line thereof, and to delete
“Edison 3.46%” in the second line thereof.
15.Amendment of Section 17.1.1.7. Section 17.1.1.7 is hereby amended to
16.Amendment of Section 17.1.1.8. Section 17.1.1.8 is hereby amended to
substitute “62.45%” for “19.25%” in the first line thereof, and to delete
“Edison 43.2%” in the second line thereof.
17.Amendment of Section 17.1.1.9. Section 17.1.1.9 is hereby amended to read in
full as follows:
“17.1.1.9(a) Common Facilities and Related Facilities - for Operating Costs
incurred prior to, or required to satisfy liabilities related to operation of
the Common and Related Facilities, prior to the effective date of Amendment No.
14.
Arizona 73.20%
El Paso 5.07%
New Mexico 9.42%
Salt River Project 7.24%
Tucson 5.07%
17.1.1.9(b) Common Facilities and Related Facilities - for all Operating
Costs not covered by Section 17.1.1.9(a).
Arizona 63%
El Paso 7%
New Mexico 13%
Salt River Project 10%
Tucson 7%
provided, that if any of Units 1, 2 or 3 of the Initial Four Corners Plant is
operated for a period after the effective date of Amendment No. 14, the
Operating Agent shall adjust the percentages in this Section 17.1.1.9(b) during
such period to reflect the operation of such Unit(s) at the Initial Four Corners
Plant, subject to review by the Auditing Committee.
3
Operating Costs which cannot be assigned to any generating Unit or facility but
apply to all units shall be shared among all Participants at the Enlarged Four
Corners Generating Station in the same said percentages as the Common Facilities
and Related Facilities.”
18.Amendment of Section 17.12. Section 17.12 is hereby amended to read in full
as follows:
“17.12 The Participants shall reimburse Arizona for other costs incurred in
operating the Four Corners Project which are not specifically delineated in the
Operating Agreement. Such reimbursement shall be shared by the Participants in
proportion to their respective Participant Share(s). The reimbursement
methodology shall be determined pursuant to the guidelines presented in Sections
17.9.3, 17.9.4 and 17.9.5.”
19.Amendment of Section 19.19. Section 19.19 is hereby amended to substitute
“81.50%” for “57.50%” in the fifth line thereof, and to delete “Edison 24.00%”
from the ninth line thereof.
20.Amendment of Section 21.1.4. Section 21.1.4 is hereby amended to read in full
as follows
“21.1.4. Physical damage insurance, covering the Four Corners Project”
21.Amendment of Section 24.1.1. Section 24.1.1 is hereby amended to add the
following sentence after the final sentence thereof: “Normal delivery points for
Arizona shall also be where Arizona’s 500kV transmission line is attached to the
500kV bus in the 500kV switchyard. Such point is shown on Exhibit 2 hereof as
position #9.”
22.Amendment of Section 24.1.2. Section 24.1.2 is hereby amended to substitute
“[Reserved]” for the text thereof.
23.Amendment of Section 24.2.1. Section 24.2.1 is hereby amended to add the
following sentence after the final sentence thereof: “Arizona shall also be
entitled to sufficient Capacity in the 345kV switchyard to permit 21.6 megawatts
of its entitlement of Power and Energy from Units 4 and 5 to be delivered from
said units, or from position #9 in the 500kV switchyard, to the point where the
Connection to 345kV Switchyard Facilities is attached to the 345kV bus in the
345kV switchyard (positions #1 and #3).”
24.Amendment of Section 24.2.4. Section 24.2.4 is hereby amended to substitute
25.Amendment of Section 24.4. Section 24.4 is hereby amended to substitute
“57.90%” for “54.44%” in the third line thereof, and to delete “Edison 3.46%” in
the fourth line thereof.
26.Deletion of Sections 26.3, 26.4, 26.5 and 26.6. Sections 26.3, 26.4, 26.5 and
26.6 are hereby deleted in their entirety.
4
27.Amendment of Section 32.1.3. Section 32.1.3 is hereby amended to read in full
as follows:
“32.1.3. Public Service Company of New Mexico
c/o Secretary
Main Offices
Albuquerque, New Mexico 87158-1245”
28.Amendment of Section 32.1.5. Section 32.1.5 is hereby amended to substitute
29.Amendment of Exhibit 2. Exhibit 2 is hereby amended as follows:
To substitute “63%” for “15%” in the first line of the “PROJECT ALLOCATION”
table relating to the “CONNECTION TO RESERVE AUXILIARY POWER SOURCE,” and to
delete “Edison 48%” from the second line thereof.
To substitute “57.90%” for “54.44%” in the first line of the “COST ALLOC. &
OWNERSHIPS” table relating to the “NO.1 230/345KV BUS TIE TRANSFORMER,” and to
delete “Edison 3.46%” from the second line thereof.
To substitute “62.45%” for “19.25%” in the first line of the “COST ALLOCATION &
OWNERSHIPS” table relating to the “CONNECTION TO 345KV SWITCHYARD FACILITIES,”
and to delete “Edison 43.20%” from the second line thereof.
To substitute “75.33%” for “43.33%” in the first line of the “COST ALLOCATION &
OWNERSHIPS” table relating to the “500KV SWITCHYARD LIMITS,” and to delete
“Edison 32.00%” from the second line thereof.
To substitute “52.23%” for “40.23%” in the first line of the “COST ALLOCATION &
OWNERSHIPS” table relating to the “345KV SWITCHYARD LIMITS,” and to delete
“Edison 12.00%” from the second line thereof.
table relating to the “345/500KV, 4-16 250MVA EA.” diagram on the lower right
corner of Exhibit 2, and to delete “Edison 48.00%” from the second line thereof.
30.Deletion of Exhibit 4. Exhibit 4 is hereby deleted in its entirety.
31.Amendment No. 14 Effective Date; Termination. The “Amendment No. 14 Effective
Date” means the date of consummation of the Edison Interest Transfer pursuant to
the Purchase Agreement (the “Edison Transfer Closing Date”); provided, however,
that this Amendment will terminate if (a) Arizona or Edison provides written
notice to the Parties to the effect that the Edison Transfer Closing Date will
not occur, (b) the Purchase Agreement is terminated, or (c) the Edison Transfer
5
32.Notices. Any notice provided for in this Amendment shall be deemed properly
served, given or made if delivered in person or sent by registered or certified
mail, postage prepaid, to the persons specified below:
Arizona Public Service Company
c/o Secretary
P.O. Box 53999
El Paso Electric Company
c/o Secretary
P.O. Box 982
c/o Secretary
Main Offices
Salt River Project Agricultural
Improvement and Power District
c/o Secretary
P.O. Box 1980
Phoenix, Arizona 85281
Southern California Edison Company
c/o Secretary
P.O. Box 800
Rosemead, California 91770
Tucson Electric Power Company
c/o Secretary
P.O. Box 711
Tucson, Arizona 85702
33.Effect of Amendment. The Parties acknowledge and agree that (a) except as
specifically amended by this Amendment, the Operating Agreement is unamended,
and (b) the Operating Agreement, as amended by this Amendment, remains in full
force and effect.
34.Counterparts; Facsimile. This Amendment may be executed in any number of
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UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 10-Q x QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES AND EXCHANGE ACT OF 1934 For the quarterly period ended June 30, 2012 Or ¨ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES AND EXCHANGE ACT OF 1934 For the transition period from to Commission File No. 000-13059 (Exact name of Registrant as specified in its charter) Delaware 33-0055414 (State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.) 3169 Red Hill Avenue, Costa Mesa, CA (Address of principal executive) (Zip Code) Registrant’s telephone number, including area code (714)549-0421 N/A (Former name, former address and former fiscal year, if changed since last report) Indicate by check mark whether the registrant (1)has filed all reports required to be filed by Section13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports); and (2)has been subject to such filing requirements for the past 90 days. YesxNo¨ Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).Yes xNo¨ 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 filerx Accelerated filer¨ Non-accelerated filer¨ Smaller reporting company ¨ Indicate by check mark whether the registrant is a shell company (as defined in Exchange Act Rule 12b-2). Yes¨Nox Indicate the number of shares outstanding of each of the issuer’s classes of common stock, as of the latest practicable date. Class Outstanding as of July 19, 2012 Common Stock, $0.01 par value 24,200,145 Shares Exhibit Index on Page 32 CERADYNE, INC. INDEX PAGENO. PARTI. FINANCIAL INFORMATION Item1. Unaudited Consolidated Financial Statements 3 Consolidated Balance Sheets – June 30, 2012 and December 31, 2011 3 Consolidated Statements of Income – Three and Six Months Ended June 30, 2012 and 2011 4 Consolidated Statements of Comprehensive Income – Six Months Ended June 30, 2012 and 2011 5 Consolidated Statements of Cash Flows – Six Months Ended June 30, 2012 and 2011 6 Notes to Consolidated Financial Statements 7-17 Item2. Management’s Discussion and Analysis of Financial Condition and Results of Operations 18-29 Item3. Quantitative and Qualitative Disclosures About Market Risk 30-31 Item4. Controls and Procedures 31 PARTII. OTHER INFORMATION Item1. Legal Proceedings 32 Item1A. Risk Factors 32 Item2. Unregistered Sales of Equity Securities and Use of Proceeds 32 Item3. Defaults Upon Senior Securities 32 Item4. Mine Safety Disclosures 32 Item5. Other Information 32 Item6. Exhibits 32 SIGNATURE 33 2 CERADYNE, INC. FORM 10-Q FOR THE QUARTER ENDED June 30, 2012 PART I.FINANCIAL INFORMATION Item1. Unaudited Consolidated Financial Statements CERADYNE, INC. CONSOLIDATED BALANCE SHEETS (Amounts in thousands, except share data) June 30, December 31, (Unaudited) CURRENT ASSETS Cash and cash equivalents $ $ Short-term investments Accounts receivable, net of allowances for doubtful accounts of $2,789 and $1,547 at June 30, 2012 and December 31, 2011, respectively Other receivables Inventories Production tooling, net Prepaid expenses and other Deferred tax asset TOTAL CURRENT ASSETS PROPERTY, PLANTAND EQUIPMENT, net LONG TERM INVESTMENTS INTANGIBLE ASSETS, net GOODWILL OTHER ASSETS TOTAL ASSETS $ $ CURRENT LIABILITIES Accounts payable $ $ Accrued expenses Income taxes payable Short-term debt TOTAL CURRENT LIABILITIES EMPLOYEE BENEFITS OTHER LONG TERM LIABILITIES DEFERRED TAX LIABILITY TOTAL LIABILITIES COMMITMENTS AND CONTINGENCIES (Note 13) SHAREHOLDERS’ EQUITY Common stock, $0.01 par value, 100,000,000 authorized, 24,179,414 and 24,175,051 shares issued and outstanding at June 30, 2012 and December 31, 2011, respectively Additional paid-in capital Retained earnings Accumulated other comprehensive income (loss) ) TOTAL SHAREHOLDERS’ EQUITY TOTAL LIABILITIES AND SHAREHOLDERS’ EQUITY $ $ See accompanying condensed notes to Consolidated Financial Statements 3 CERADYNE, INC. CONSOLIDATED STATEMENTS OF INCOME (Amounts in thousands, except per share data) Three Months Ended June 30, Six Months Ended June 30, (Unaudited) (Unaudited) NET SALES $ COST OF GOODS SOLD Gross profit OPERATING EXPENSES Selling, general and administrative Research and development Restructuring - plant closure and severance - - - Acquisition related charges INCOME FROM OPERATIONS OTHER INCOME (EXPENSE): Interest income Interest expense ) Miscellaneous ) INCOME BEFORE PROVISION FOR INCOME TAXES PROVISION FOR INCOME TAXES NET INCOME $ BASIC INCOME PER SHARE $ DILUTED INCOME PER SHARE $ WEIGHTED AVERAGE SHARES OUTSTANDING: BASIC DILUTED See accompanying condensed notes to Consolidated Financial Statements 4 CERADYNE, INC. CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME (Amounts in thousands) Three Months Ended June 30, Six Months Ended June 30, (Unaudited) (Unaudited) NET INCOME $ FOREIGN CURRENCY TRANSLATION ) ) UNREALIZED GAIN (LOSS) ON INVESTMENTS ) ) 5 COMPREHENSIVE INCOME (LOSS) $ ) $ $ $ See accompanying condensed notes to Consolidated Financial Statements 5 CERADYNE, INC. CONSOLIDATED STATEMENTS OF CASH FLOWS (Amounts in thousands) Six Months Ended June 30, (Unaudited) CASH FLOWS FROM OPERATING ACTIVITIES: Net income $ $ ADJUSTMENTS TO RECONCILE NET INCOME TO NET CASH PROVIDED BY OPERATING ACTIVITIES: Depreciation and amortization Amortization of bond premium Non cash interest expense on convertible debt Deferred income taxes ) Stock compensation (Gain) loss on marketable securities ) (Gain) loss on equipment disposal ) Change in operating assets and liabilities (net of effect of businesses acquired): Accounts receivable, net ) Other receivables Inventories ) ) Production tooling, net ) Prepaid expenses and other assets ) Accounts payable and accrued expenses ) Income taxes payable Other long term liability Employee benefits NET CASH PROVIDED BY OPERATING ACTIVITIES CASH FLOWS FROM INVESTING ACTIVITIES: Purchases of property, plant and equipment ) ) Purchases of marketable securities ) ) Proceeds from sales and maturities of marketable securities Cash paid for acquisitions - ) Cash paid for other investments ) - Proceeds from sale of equipment 42 NET CASH USED IN INVESTING ACTIVITIES: ) ) CASH FLOWS FROM FINANCING ACTIVITIES: Proceeds from issuance of stock due to exercise of options Excess tax benefit due to exercise of stock options Common stock cash dividends paid ) - Shares repurchased ) ) NET CASH USED IN FINANCING ACTIVITIES ) ) EFFECT OF EXCHANGE RATES ON CASH AND CASH EQUIVALENTS ) DECREASE IN CASH AND CASH EQUIVALENTS ) ) CASH AND CASH EQUIVALENTS, BEGINNING OF PERIOD CASH AND CASH EQUIVALENTS, END OF PERIOD $ $ See accompanying condensed notes to Consolidated Financial Statements 6 CERADYNE, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS JUNE 30, 2012 (Unaudited) 1. Basis of Presentation The accompanying unaudited consolidated financial statements have been prepared in accordance with generally accepted accounting principles (“GAAP”) for interim financial information and with the instructions to Form 10-Q and Article 10 of Regulation S-X. Accordingly, they do not include all of the information and footnotes required by accounting principles generally accepted in the United States of America for complete financial statements. In the opinion of management, all adjustments (consisting of normal recurring adjustments) considered necessary for a fair presentation have been included. Operating results for the three and six month periods ended June 30, 2012 are not necessarily indicative of the results that may be expected for the year ending December 31, 2012. The balance sheet at December 31, 2011 has been derived from the audited financial statements at that date, but does not include all of the information and footnotes required by accounting principles generally accepted in the United States of America for complete financial statements. For further information, refer to the Consolidated Financial Statements and Notes to Financial Statements included in Ceradyne’s annual report on Form 10-K for the year ended December 31, 2011. 2. Share-Based Compensation Share-based compensation expense for the three and six months ended June 30, 2012 was $1.0 million and $2.3 million, respectively, which was related to restricted stock units only as the Company did not have any share-based compensation expense for stock options. This compared to $1.1 million and $2.0 million for the three and six months ended June 30, 2011, respectively. Share-based compensation expense is based on the value of the portion of share-based payment awards that is ultimately expected to vest. Forfeitures are estimated at the time of grant in order to estimate the amount of share-based awards that will ultimately vest. The forfeiture rate is based on historical rates. Share-based compensation expense recognized in the Company’s Consolidated Statements of Income for the three and six month periods ended June 30, 2012 includes compensation expense for share-based payment awards based on the estimated grant-date fair value. Since share-based compensation expense recognized in the Consolidated Statements of Income for the three and six month periods ended June 30, 2012 is based on awards ultimately expected to vest, it has been reduced for estimated forfeitures. The Company maintains the 1994 Stock Incentive Plan and 2003 Stock Incentive Plan. The Company was authorized to grant options for up to 2,362,500 shares under its 1994 Stock Incentive Plan. The Company has granted options for 2,691,225 shares and has had cancellations of 397,811 shares through June 30, 2012. There are no remaining stock options available to grant under this plan. The options granted under this plan generally became exercisable over a five-year period for incentive stock options and six months for nonqualified stock options and have a maximum term of ten years. The 2003 Stock Incentive Plan was amended in 2005 to allow the issuance of Restricted Stock Units (the “Units”) to eligible employees and non-employee directors. The Units are payable in shares of the Company’s common stock upon vesting. For directors, the Units typically vest annually over three years following the date of their issuance. For officers and employees, Units typically vest annually over five years following the date of their issuance. The Company may grant options and Units for up to 1,875,000 shares under the 2003 Stock Incentive Plan. The Company has granted options for 475,125 shares and Units for 1,003,869 shares under this plan through June 30, 2012. There have been cancellations of 135,393 shares associated with this plan through June 30, 2012. The options under this plan have a life of ten years. During the three and six months ended June 30, 2012 and 2011, the Company issued Units to certain directors, officers and employees with weighted average grant date fair values and Units issued as indicated in the table below. The Company records compensation expense for the amount of the grant date fair value on a straight line basis over the vesting period. Share-based compensation expense reduced the Company’s results of operations as follows (dollars in thousands): Three Months Ended June 30, Six Months Ended June 30, Share-based compensation expense recognized: General and administrative, options $
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Servicer's Certificate for the Collection Period May 01, 2015 through May 31, 2015 for Payment Date of June 15, 2015 Toyota Auto Receivables 2012-A Owner Trust Toyota Auto Finance Receivables, LLC SELLER SERVICER Collection Period 31 30/360 Days 30 Interest Accrual Period 31 Actual/360 Days 31 Initial Principal Final Beginning Beginning First Priority Second Priority Regular Principal Ending Ending Class Balance Scheduled Principal Principal Principal Principal Distribution Principal Principal Payment Date Balance Factor Distribution Distribution Amount Balance Factor Amount Amount A-1 4/15/13 A-2 10/15/14 A-3 2/16/16 A-4 8/15/17 B 6/15/18 Total Interest Prior Interest Current Total Class Interest Rate Distributable Interest Distribution Interest Principal & Amount Carryover Amount Carryover Interest Distribution A-1 0.23989% A-2 0.57000% A-3 0.75000% A-4 0.99000% B Total Credit Enhancement Reserve Account Yield Supplement Overcollateralization Amount Initial Deposit Amount Beginning Period Amount Specified Reserve Account Amount Increase/(Decrease) Beginning Balance Ending Period Amount Withdrawals Amount Available for Deposit Overcollateralization Amount Deposited to the Reserve Account Adjusted Pool Balance Reserve Account Balance Prior to Release Total Note Balance Reserve Account Required Amount Ending Overcollateralization Amount Reserve Account Release to Seller Overcollateralization Target Amount Ending Reserve Account Balance Page 1 of 4 Servicer's Certificate for the Collection Period May 01, 2015 through May 31, 2015 for Payment Date of June 15, 2015 Toyota Auto Receivables 2012-A Owner Trust Toyota Auto Finance Receivables, LLC SELLER SERVICER Collection Period 31 30/360 Days 30 Interest Accrual Period 31 Actual/360 Days 31 Liquidations of Charge-offs and Repossessions Amount Liquidated Contracts 10 vehicles Gross Principal of Liquidated Receivables Principal of Repurchased Contracts, previously charged-off Net Liquidation Proceeds Received During the Collection Period Recoveries on Previously Liquidated Contracts Net Credit Losses for the Collection Period Cumulative Credit Losses for all Periods vehicles Cumulative Net Loss Ratio 0.27599% Repossessed in Current Period 3 vehicles Delinquent and Repossessed Contracts Percentage of Current Month Number of Contracts Percentage of Current Month Receivables Pool Balance Units Balance 30-59 Days Delinquent 1.19% 1.61% 60-89 Days Delinquent 0.19% 64 0.28% 90-119 Days Delinquent 0.07% 24 0.12% 120 or more Days Delinquent 0.00% 0 0.00% Total Delinquencies Repossessed Vehicle Inventory 5 * Included with Delinquencies Above Pool Data Original Prior Month Current Month Receivables Pool Balance Number of Contracts Weighted Average APR 2.89% 2.97% 3.00% Weighted Average Remaining Term (Months) Page 2 of 4 Servicer's Certificate for the Collection Period May 01, 2015 through May 31, 2015 for Payment Date of June 15, 2015 Toyota Auto Receivables 2012-A Owner Trust Toyota Auto Finance Receivables, LLC SELLER SERVICER Collection Period 31 30/360 Days 30 Interest Accrual Period 31 Actual/360 Days 31 Collections Principal Payments Received Prepayments in Full Interest Payments Received Aggregate Net Liquidation Proceeds Interest on Repurchased Contracts Total Collections Principal of Repurchased Contracts Principal of Repurchased Contracts, prev charged-off Adjustment on Repurchased Contracts Total Repurchased Amount Total Available Collections Distributions Calculated Amount Amount Paid Shortfall Servicing Fee Interest - Class A-1 Notes Interest - Class A-2 Notes Interest - Class A-3 Notes Interest - Class A-4 Notes First Priority Principal Distribution Amount Interest - Class B Notes Second Priority Principal Distribution Amount Reserve Account Deposit Regular Principal Distribution Amount Excess Amounts to the Certificateholder N/A Noteholder Distributions Interest Per $1000 of Principal Per $1000 of Amount Per $1000 of Distributed Original Balance Distributed Original Balance Distributed Original Balance Class A-1 Notes Class A-2 Notes Class A-3 Notes Class A-4 Notes Class B Notes Page 3 of 4 Servicer's Certificate for the Collection Period May 01, 2015 through May 31, 2015 for Payment Date of June 15, 2015 Toyota Auto Receivables 2012-A Owner Trust Toyota Auto Finance Receivables, LLC SELLER SERVICER I hereby certify to the best of my knowledge that the report provided is true and correct. /s/ Cindy Wang Name: Cindy Wang Title: Vice President, Head of Treasury Page 4 of 4
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Exhibit 10.3
DATE January 29, 2015 Angelo Muscarella (1) and
Perceptron, Inc. (2)
Stock Purchase Agreement
Next Metrology s.r.o.
TABLE OF CONTENTS
SECTIONS Section 1 Introduction and Exhibits – Interpretation –
Certain definitions 3 Section 2 Sale and purchase of the Share 4
Section 3 Purchase Price 5 Section 4 Completion – Conditions to Completion
5 Section 5 Pre-Completion Date Covenants 8 Section 6 Due Diligence
11 Section 7 Representations and warranties 11 Section 8 Breach of
representations and warranties 12 Section 9 Further covenants and specific
obligations of the Seller 15 Section 10 Restrictive Covenants 16
Section 11 Indemnity Holdback Account 17 Section 12 [Intentionally left
blank] 17 Section 13 [Intentionally left blank] 17 Section 14
Termination 17 Section 15 Miscellaneous 18 Section 16 Governing Law
- Arbitration 21
LIST OF THE EXHIBITS
Exhibit 1.03: Certain definitions Appendix A: Agreed Accounting Principles
Exhibit 4.02(a)(i)(bb): Director’s waiver form Exhibit 4.02(a)(i)(hh) Seller
Release Exhibit 4.02(a)(i)(ii): terms and conditions of the employment
agreements with the key people Exhibit 4.02(a)(i)(ll): Waiver of the Right of
First Refusal Exhibit 7.01: Buyer’s representations and warranties Exhibit 7.02:
Seller’s representations and warranties Exhibit 7.02(a): Disclosure Letter
1
agreement
This agreement (the “Agreement”) is entered into on January 29, 2015
by and amongst
tax registration number [ ] (“Muscarella” or the “Seller”),
and
(2)Perceptron, Inc., a company established under the laws of the State of
Michigan, with offices at 47827 Halyard Drive, Plymouth, MI 48170, State of
Michigan, United States of America, Id No. 272233, for the purposes of this
agreement represented by Margaret Mary Kaczmarek Nelson, in her capacity as Vice
President (“Buyer”),
(the Seller and the Buyer when jointly referred to “Parties” and each of them
2
INTRODUCTION
A.Seller owns 25% share in Next Metrology. Next Metrology's registered capital
as of the date hereof is CZK 200,000 (in words: two hundred thousand Czech
crowns) and is divided into the following three ownership interests representing
100% of the participation and shareholding rights in Next Metrology:
(i)Muscarella: ownership interest of total par value of CZK 50,000, representing
25% of Next Metrology’s registered capital (the “Share”);
(ii)Mills: ownership interest of total par value of CZK 50,000, representing 25%
of Next Metrology’s registered capital (the “Mills Share”);
(iii)Topmes: ownership interest of total par value of CZK 100,000, representing
50% of Next Metrology’s registered capital (the "Topmes Share").
B.The Buyer is a non-contact vision and metrology company with a long
C.The Buyer is interested in acquiring the Share from the Seller, upon the terms
D.The Seller declared that he is interested and willing to transfer and to cause
the transfer of the Share to the Buyer, upon the terms and conditions set forth
in this Agreement.
E.The Buyer is interested in acquiring only 100% participation in Next
Metrology, i.e., acquiring the Share together with the Topmes Share and the
Mills Share.
Now therefore,
SECTION 1
Section 15.03(b).
1.02 Interpretation
(i) reference to “this Agreement” shall include its Introduction, all of
its Exhibits, Appendices and Annexes;
(ii) the term “person” includes individuals, firms, companies,
corporations, unincorporated associations as well as any association or
partnership or joint venture (whether or not having a separate full legal
capacity).
(b)Any reference to a statute, statutory provision or subordinate legislation
shall be construed as referring to that statute, statutory provision or
subordinate legislation as amended, modified, consolidated, re-enacted or
replaced and in force from time to time, whether before or after the date of
this Agreement and shall also be construed as referring to any previous statute,
statutory provision or subordinate legislation amended, modified, consolidated,
re-enacted or replaced by such statute, statutory provision or subordinate
legislation.
3
(c)References to any Czech statutory provision or Czech legal term for any
action, remedy, method of judicial proceeding, document, legal status, court,
official or any other legal concept or thing shall, in respect of any body
corporate incorporated in any jurisdiction other than the Czech Republic, be
deemed to refer to and include any equivalent or analogous action, remedy,
method of judicial proceeding, document, legal status, court, official or other
legal concept or thing or what most nearly approximates in that jurisdiction to
the Czech statutory provision or Czech legal term.
(d)The schedules to this Agreement shall for all purposes form part of this
Agreement.
(e)Any phrase introduced by the terms "including", "include", "in particular" or
(f)Notwithstanding that this Agreement is set forth in the English language
only, where in this Agreement a Czech term is given in italics and/or in
brackets after an English term or vice versa, the relevant provision relates to
circumstances governed by the respective Czech law and if there is any
inconsistency between the Czech term and the English term, the meaning of the
respective Czech term shall prevail.
(g)As this Agreement is the result of negotiations, the parties agree that none
of the clauses or terms hereof can be attributed to any one party as having
first used it in the negotiation of the Agreement.
1.03 Certain definitions
corresponding meanings.
SECTION 2
Sale and purchase of the Share
Seller agrees to sell the Share to the Buyer, and the Buyer agrees to buy the
Share, on the Completion Date.
(b)On the Completion Date, the Seller and the Buyer shall enter into and execute
an Ownership Interest Purchase Agreement (the “OITA”) by which the Seller shall
transfer to the Buyer the Share. The Parties agree that the OITA shall be
subject to this Agreement and therefore, they shall ensure that any claim
however relating to the sale of the Share is raised under this Agreement.
(c)Upon fulfillment of all other formalities as required by Section 4.02 and
fulfillment (or waiver) of all the conditions provided for in Section 4.03, the
Buyer shall acquire full title to and ownership of the Share, free and clear of
any Encumbrance, together with all rights attached thereto. The Parties agree
that the Buyer shall benefit from all the economic effects of the sale of the
Share as contemplated by this Agreement as from the Completion Date.
(d)The Parties further acknowledge that the Buyer shall be entitled to appoint a
third party legal entity directly or indirectly controlled by, controlling or
under common control with the Buyer which will acquire the Share. Should the
Buyer wish to appoint and, pursuant to Section 15.04, assign its rights and
obligations under this Agreement to, such third party legal entity, it may do so
up to the Completion Date, and the Seller undertakes to provide consent with
such assignment, while such consent may not be unreasonably withheld or delayed.
In any event, the Buyer will remain jointly liable together with such third
party for the performance of the obligations arising from this Agreement.
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SECTION 3
Purchase Price
3.01 Purchase Price
(a)The Parties agree that the purchase price in consideration of the transfer to
the Buyer of full title to and ownership of the Share, free and clear of any
Encumbrances, shall be paid by the Buyer to the Seller and shall be equal to Eur
1,000,000 (one million) (“Purchase Price”).
3.02 Payment of the Purchase Price
(a)The payments of all portions of the Purchase Price to be paid in cash shall
be made by the Buyer to the Seller by bank wire transfers to Seller’s bank
account the details of which shall be indicated by the Seller in writing at
least 7 (seven) Business Days prior to each date on which payments fall due or
to the Indemnity Holdback Account, as indicated in the following clauses of this
Section 3.02.
(b)The Purchase Price shall be paid to the Seller in the following installments:
(i)as to Eur 650,000 (six hundred fifty thousand) in cash, to the Seller’s bank
account as indicated in paragraph (a) above upon the execution of the OITA;
(ii)as to Eur 100,000 (one hundred thousand), to be credited in the Buyer’s
financial records as an Indemnity Holdback Account and paid to the Seller as set
forth in Section 11;
(iii)as to Eur 250,000 (two hundred fifty thousand), such Purchase Price
installment shall only be paid by the Buyer to the Seller if the completion of
transaction under the Coord3 Agreement occurs and such Purchase Price
installment will be paid by the Buyer to the Seller's bank account as indicated
in paragraph (a) above upon completion of transaction under the Coord3
Agreement. If no completion occurs by December 31, 2015, the amount of the
Purchase Price set forth in Section 3.01(a) shall be reduced by Eur 250,000.
(c)No interest shall accrue on any of the amounts to be paid by either Party
pursuant to paragraph (b), above, if timely paid.
(d)For the avoidance of any doubt, the Parties agree that, by paying the amount
indicated in paragraph (b)(i) above to the Seller, the Buyer shall have
discharged its obligation to pay the relevant part of the Purchase Price in
full.
SECTION 4
4.01 Completion Date
(a)Completion shall occur on January 29, 2015 or any other date as agreed
between the Parties, subject to the conditions to Completion indicated in
Section 4.03 being satisfied or waived by the interested Parties in writing on
(b)The Completion session and the execution of the OITA shall take place at the
office of Squire Patton Boggs, v.o.s., advokátní kancelář, ID No. 256 38 882,
Václavské náměstí 57/813, 110 00 Prague 1, Czech Republic or any other place as
5
4.02 Completion
(a)The Parties, each to the extent within its control, shall consummate or
procure the consummation of all of the following actions and transactions, on or
before the Completion Date, as follows:
(i)the Seller shall cause the following to occur or have occurred:
(aa)delivery to the Buyer of the following documents relating to the
reorganization of matters between Next Metrology and Topmes:
(i)a copy of a fully executed Confirmation Agreement entered into between Next
Metrology and Topmes in the form agreed by the Parties before or around the
(ii)a copy of a fully executed Equipment Purchase Agreement entered into between
Next Metrology and Topmes in the form agreed by the Parties before or around the
(iii)a copy of a fully executed License Agreement entered into between Next
Metrology and Mills in the form agreed by the Parties before or around the
(iv)a copy of a fully executed License Agreement entered into between Next
Metrology and Coord3 India in the form agreed by the Parties before or around
(v)a copy of a fully executed Agreement on Additional Capital Contribution
entered into between Next Metrology and Topmes in the form agreed by the Parties
before or around the signing of this Agreement;
(vi)a copy of a fully executed Set-off Agreement entered into between Next
(vii)consent of executives of Next Metrology with the provision of contribution
outside of the registered capital of Next Metrology pursuant to the Agreement on
Additional Capital Contribution contemplated in Section 4.02(a)(i)(aa)(vii) in
the form agreed by the Parties before or around the signing of this Agreement;
(viii)Consent from the following employees of Topmes regarding the TouchDMIS
Software in the form agreed by the Parties before or around the signing of this
Agreement:
a.Mr. Štěpán Hřivna;
b.Mr. Jaromír Pořízek;
c.Mr. Václav Jirkovský;
d.Mr. Jan Kryštůfek;
e.Mr. Jiří Králík;
(ix)Confirmation and Consent from the following employees of Topmes regarding
the TANGO Software in the form agreed by the Parties before or around the
signing of this Agreement:
e.Mr. Jiří Králík.
(bb)statements (in the agreed form attached hereto as Exhibit 4.02(a)(i)(bb))
whereby the Seller and Mr. Štěpán Hřivna declare to have no and waive any and
all rights or claims vis-à-vis Next Metrology in relation to their role and
duties as managing director;
(cc)delivery to the Buyer of a copy of the statement indicated in sub-paragraph
(bb) above;
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(dd)delivery to the Buyer of a written statement whereby the Seller warrants to
the Buyer that, as from the date hereof Next Metrology’s business has been
conducted in accordance with the provisions of Section 5.01;
(ee)delivery to the Buyer of a written statement whereby the Seller warrants
that the representations and warranties given by the Seller and referred to in
Section 6(b) and Section 7.02 are accurate, true and correct as at the
Completion Date and as if given at the Completion Date;
(ff)the execution of the Sublease Agreement and delivery to the Buyer of a copy
of such agreement;
(gg)delivery to the Buyer of a certified copy of a power of attorney conferring
the authority of each person entering into an agreement or document on behalf of
the Seller, if applicable;
(hh)delivery to the Buyer of a written statement with the release of all claims
from the Seller in the form attached as Exhibit 4.02(a)(i)(hh);
(ii)delivery to the Buyer of copies of the employment agreements with the key
people listed in Exhibit 4.02(a)(i)(ii) and which shall include the terms and
conditions provided for in Exhibit 4.02(a)(i)(ii);
(jj)delivery to the Buyer of an extract from the Commercial Register of Next
Metrology maintained by the Municipal Court in Prague dated as of a date as near
as practicable to the Completion Date;
(kk)delivery to the Buyer of a resolution of Next Metrology’s General Meeting:
(i)approving all documents under Sections 4.02(a)(i)(aa)(i) through
4.02(a)(i)(aa)(vi) and under Section 4.02(a)(i)(ff),
(ii)recalling Mills and Mr. Štěpán Hřivna from the office of managing directors
(in Czech: jednatel) of Next Metrology with effect as from the Completion Date,
(iii)appointing new managing directors of Next Metrology selected by the Buyer
and with effect as from the Completion Date (the Seller shall bear no liability
for the appointment and actions of the newly appointed managing directors),
(iv)unanimously approving transfer of the Share, of the Mills Share and of the
Topmes Share to the Buyer (the resolution of Next Metrology’s General Meeting in
this regard shall be in the form of notarial deed);
(ll)delivery to the Buyer of waivers by the Seller in the form attached as
Exhibit 4.02(a)(i)(ll) by which the Seller waives his right of first refusal to
the Topmes Share and of the Mills Share.
(ii)the Buyer shall cause the following to occur or have occurred:
(aa)delivery to the Seller of the evidence of the payment, by bank wire
transfer, of the Purchase Price, except for the portion of the Purchase Price
credited by the Buyer to the Indemnity Holdback Account;
(bb)delivery to the Seller of a certified copy of a power of attorney conferring
the Buyer, if applicable;
(iii)the Seller and the Buyer shall, each to the extent within their control:
(aa)cause the execution by the Buyer and Seller of the OITA.
(iv)All conditions to Completion under both the Mills SPA and the Topmes SPA,
except for the consummation of the Completion action consisting of the
occurrence of Conditions to Completion under this Agreement, have occurred.
7
(b)Completion shall be deemed to have occurred when all of the actions and
transactions indicated in Section 4.02(a) above shall have been duly consummated
or waived by the interested Party.
4.03 Conditions to Completion
(a)Completion is subject to the following conditions to Completion which shall
have occurred or shall have been satisfied or waived by the interested Party by
the Completion Date:
(a1)conditions in favor of each of the Buyer and the Seller: all actions and
transactions provided for in Section 4.02 shall have been consummated or waived
(i)Next Metrology’s assets and the Share are free and clear of any Encumbrances;
(ii)no Material Adverse Change occurred in Next Metrology since the Reference
Date;
(iii)receipt of Required Consents;
(iv)no legal proceedings are pending which are aimed at preventing the
(b)Should any of the conditions indicated in paragraph (a) above not be
satisfied or waived by the interested Party by the Completion Date, the Parties
shall be released from the obligation to complete the acquisition of the Share
contemplated by this Agreement, which shall be deemed terminated.
(c)Should any of the conditions to Completion provided for in this Section 4.03
not be met or satisfied by the Completion Date due to one of the Parties’
failure to provide its utmost co-operation for the purpose of the satisfaction
of such conditions or to fulfill the obligations provided for in Section 4.02,
termination of this Agreement pursuant to Section 4.03(b) shall be without
prejudice to any remedy the other Party may have under the law or pursuant to
this Agreement.
(d)The Seller shall deliver to the Buyer a statement of the Seller whereby the
Seller acknowledges receipt of the Purchase Price, except for the portion of the
Purchase Price credited by the Buyer to the Indemnity Holdback Account. Such
statement shall be delivered by the Seller to the Buyer within 5 (five) calendar
days from the day of its receipt.
SECTION 5
5.01 Management and conduct of Next Metrology Business
(a)From the date hereof and until the Completion Date, unless otherwise
contemplated by this Agreement or approved by the Buyer in writing, the Seller
shall cause Next Metrology to:
(i)conduct Next Metrology’s business (including managing the working capital,
the collection of accounts receivable, the payment of accounts payable) with due
care and diligence in the ordinary and usual course, consistent with past
practice as disclosed to the Buyer;
(ii)continue to insure all insured assets which are part of Next Metrology’s
business, whether owned or leased, and use, operate, maintain and repair all
(iii)preserve its relationships with the employees, self-employed persons,
distributors, agents, representatives, suppliers and customers;
8
(iv)refrain from acting or omit to act in such way as to cause a material breach
of any material agreement, contract, commitment or obligation of Next Metrology;
(v)keep Next Metrology’s facilities, machinery and equipment in normal operating
conditions and repair, except for ordinary wear and tear;
(vi)duly and timely comply in all material respects with all of its obligations,
including the obligations arising from any loan or other financial commitment;
(vii)give the Buyer reasonable direct access to management, legal and financial
advisors, auditors and documents of Next Metrology;
applicable laws and the Agreed Accounting Principles.
(b)The Seller agrees, from the date hereof and until the Completion Date, to
cause Next Metrology not to make decisions concerning the matters listed below
and not to implement such decisions without the Buyer’s prior written consent
(such consent not to be unreasonably denied or delayed):
(ii)granting of any rights (including in rem securities) in respect of any of
Next Metrology’s assets or the charging of any of said assets with any
Encumbrances;
(iii)decisions to incur any indebtedness or to borrow any money or to enter into
any factoring or invoice discount agreement;
(iv)extension of the terms of payment of any payables or other liabilities or of
any receivables or discount any receivables;
(v)transactions (including share capital increase or decrease) which affect the
share capital of Next Metrology;
(vi)the granting of any rights (including in rem security rights) on any of the
shares of Next Metrology or any further share to be issued by Next Metrology and
issuance of any bond or other securities;
(vii)decisions to undertake any capital commitment (purchase or financial /
capital lease of fixed or other assets);
(viii)decisions to enter into any partnership, consortium, association, joint
venture agreements;
(ix)change of the remuneration of any of the employees, other than increases
required by the law or by the applicable collective bargaining agreements;
(x)recruitment of any new registered managing director or any key manager;
(xi)any redundancy plan;
(xiii)agreements with customers or suppliers (including purchase orders) (aa)
which have each a value greater than EUR 30,000 as to customers contracts and
EUR 30,000 as to suppliers, or (bb) whereby the counterpart may withdraw or
terminate without cause, or (cc) whereby the counterpart may withdraw or
terminate for change of control, or (dd) which provide for restrictions to Next
Metrology’s or any of Next Metrology’s present or future Affiliates’ freedom to
operate in the market, or (ee) whereby Next Metrology must give unusual
warranties or guarantees, or (ff) which contemplate unusual payment terms if
employees of Next Metrology or relatives of the shareholders or of the directors
or employees);
(xv)change in accounting methods, policies or procedures or presentations of
accounts; declaration and distribution of dividends or capital funds;
9
(xvi)settlements of disputes;
(xx)permitting the lapse or forfeiture of intellectual property rights or other
intangible assets;
(xxii)negotiations for the settlement or compromise, settlements or compromise
of any tax liability;
(xxiii)enter into or amend any agreement, except for acceptance or placement of
purchase orders in the ordinary course of business;
the representations and warranties from becoming true.
(c)The Seller agrees to use his best efforts to cause Next Metrology to take
such actions and to execute such certificates and other documents as from time
to time shall be reasonably requested by the Buyer to allow the Buyer to make
any tax election requested by the Buyer (including, without limitation, an
entity classification election under U.S. Treasury Regulation Section
301.7701-3(c)(1)(i) on Form 8832 with an effective date that is the day
immediately preceding the Completion).
5.02 Site visits
The Seller shall ensure, prior to Completion Date, that representatives of the
Buyer are allowed to visit the Property and the facilities of Next Metrology,
upon the Buyer’s reasonable request, which shall be made in writing (also via
Buyer hereby acknowledges that the visit on site shall be carried on in a manner
which will not unreasonably disrupt the normal and ordinary activity of Next
Metrology, its directors, managers and employees.
5.03 Other Pre-Completion Date Covenants
(a)The Seller shall ensure that, from the date hereof until the Completion Date,
the Buyer will have access to Next Metrology’s books, records, contracts and
personnel, upon its reasonable request which shall be made in writing (also via
email) before the date of the relevant access, being agreed and understood that
such access shall be carried on in a manner which will not unreasonably disrupt
the normal and ordinary activity of Next Metrology, its directors, managers and
employees.
(b)The Seller and the Buyer shall take, and shall cause Next Metrology to take
all necessary actions to obtain the Required Consents, so that they are
delivered prior to the Completion Date.
(c)The Seller shall and shall cause Next Metrology to cause the representations
and warranties referred to in Sections 6(b) and 7.02 to be accurate, true and
correct as at the Completion Date as if given at the Completion Date.
(d)Prior to the Completion Date, the Seller will not, and will cause its
respective officers, directors, employees, legal counsel, accountants, advisors
or other consultants or agents to not directly or indirectly, solicit or enter
into any agreement or negotiations with, or furnish information to, any person
with respect to any proposal to acquire any of the share capital or a
substantial portion of the assets of Next Metrology or to merge or consolidate
with Next Metrology. If the Seller receives any such proposals, or inquiries
regarding the same, the Seller shall promptly notify the Buyer of the terms of
10
SECTION 6
Due diligence
(a)Prior to the execution of the Agreement, the Buyer has conducted a full
security, corporate and environmental due diligence on Next Metrology (“Due
(b)The Seller warrants and represents that all information and data which the
Seller, the directors, employees or advisors of Next Metrology provided to the
Buyer during the Due Diligence process and the negotiations prior to the
execution of the Agreement are true, correct and not misleading and fairly
reflect the financial, economic and business situation of Next Metrology and no
relevant document and information requested by the Buyer during the Due
Diligence has been withheld.
SECTION 7
Representations and warranties
7.01 Buyer’s representations and warranties.
The Buyer represents and warrants to the Seller that the representations and
warranties indicated in Exhibit 7.01 are true, correct and not misleading as at
the date of this Agreement and hereby acknowledges that each of such
representations and warranties is material and essential to the Seller, who is
relying on such representations and warranties in entering into this Agreement.
For the avoidance of any doubt, it is agreed that the Buyer’s representations
and warranties shall not be affected, limited or diminished by any knowledge by
the Seller of the matters covered by the representations and warranties.
7.02 Seller’s representations and warranties.
(a)The Seller represents and warrants to the Buyer that the representations and
warranties indicated in Exhibit 7.02 and Section 6(b) are true, correct and not
misleading as at the date of this Agreement, except as otherwise Disclosed in
the Disclosure Letter attached hereto as Exhibit 7.02(a), and hereby
acknowledges that each of such representations and warranties is material and
essential to the Buyer, who is relying on such representations and warranties in
entering into this Agreement. For the avoidance of any doubt, it is agreed that
the Seller’s representations and warranties shall not be affected, limited or
diminished by any investigation (including the Due Diligence) up to this date or
hereafter made by the Buyer (directly and through its advisors) with respect to
Next Metrology, the Share, Next Metrology’s assets, liabilities and properties
or by any knowledge by the Buyer of the matters covered by the representations
and warranties, except for the matters Disclosed in the Disclosure Letter. As of
Keith Marchiando , do not have actual conscious awareness of any inaccuracy or
breach of the representations and warranties of the Seller in this Agreement.
(b)Each of the representations and warranties made or given by the Seller in or
pursuant to Sections 6(b) and 7.02 of this Agreement or confirmed by the Seller
at the Completion Date pursuant to Section 4.02(a)(i)(ee) shall be construed as
a separate and independent representation and warranty and, except where
expressly stated, shall not be limited or restricted by reference to or
inference from the terms of any other representations and warranties or any
11
(c)The rights and remedies of the Buyer in respect of any breach of the
representations and warranties made or given by the Seller in or pursuant to
this Agreement or confirmed by the Seller at the Completion Date pursuant to
Section 4.02(a)(i)(ee) shall not be affected by completion of the purchase of
the Share, by Buyer’s termination or failure to terminate this Agreement, by any
failure to exercise or delay in exercising any right or remedy or by any other
event or matter whatsoever, except a specific and duly authorised written waiver
or release expressly referring to such breach.
(d)The Parties agree that provisions of the Czech Civil Code regarding liability
for defects, including, but not limited to, Sections 1914(2) through 1925 and
Sections 2099 through 2117 of the Czech Civil Code, shall not be applicable to
this Agreement.
SECTION 8
Breach of representations and warranties
8.01 Breach of Seller’s representations and warranties
(a)General
(i)As the only and sole remedy available to the Buyer under this Agreement in
connection with the breach of the Seller’s representations and warranties, the
Buyer shall have a contractual claim to (and the Seller shall pay to the Buyer
the amount of) a discount of the Purchase Price (“Discount”), corresponding to
the amount of Detriment (aa) resulting or deriving from the fact that any of the
Sections 6(b) and 7.02 of this Agreement or confirmed by the Seller at the
Completion Date pursuant to Section 4.02(a)(i)(ee) are untrue, incorrect or
misleading, (bb) resulting or deriving from any discrepancy between the
representations and warranties confirmed by the Seller at the Completion Date
pursuant to Section 4.02(a)(i)(ee) and the situation as at the Completion Date,
or (cc) resulting or deriving from any acts or omissions of Next Metrology or
Seller on or prior to the Completion Date.
(ii)For the purposes of this Agreement, the “Detriment” shall, irrespective of
the size of Seller’s ownership interest in Next Metrology, be quantified as an
(aa)the amount needed to compensate for the decrease in the value of Next
Metrology compared to the value of Next Metrology that it would have if the
Seller’s representation or warranty had not been breached or had not been untrue
or misleading; and
(bb)all losses, costs and expenses including, without limitation, damages, legal
and other reasonably incurred professional fees and costs, penalties, expenses
incurred by the Buyer or Next Metrology and resulting or deriving from the fact
that any of the representations and warranties made or given by the Seller in or
or misleading.
(iii)The obligation to pay the Detriment in the form of the Discount provided
for in this Section 8.01 shall extend to all costs, expenses (including
reasonable attorney’s fees and experts’ costs) and disbursements incurred by the
Buyer in enforcing its rights in respect of a claim under this Agreement and/or
by Next Metrology in enforcing its rights and in resisting any Third Party
Claim.
(iv)The Parties agree that any payments due by the Seller for breaching the
Seller’s representations and warranties shall be made by the Seller directly to
the Buyer, unless the Buyer gives instructions to the Seller to make such
payments directly to Next Metrology.
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(v)The Seller shall be under no obligation to grant to the Buyer under this
Section 8.01 Discount for any Detriment in relation to which, by the time the
payment by the Seller is due, either the Buyer or Next Metrology receives
compensation, indemnification or reimbursement by third parties (including
insurance companies), without recourse, to the extent of such compensation,
indemnification or reimbursement.
(vi)If any amount payable pursuant to this Section 8.01(a) is subject to Tax,
that amount shall be increased so as to ensure that the net amount received by
the Buyer and/or Next Metrology shall, after Tax, be equal to that which would
have been received had the payment and any increased payment not been subject to
Tax.
(vii)If any amount is paid by the Seller to the Buyer pursuant to this Section
8.01(a), the amount of such payment shall be deemed to constitute a reduction in
the Purchase Price payable under this Agreement.
(viii)Any claims arising from a breach of the Seller’s representations and
warranties may be recovered by the Buyer only once in respect of the same
breach. If a claim for a breach of Seller’s representations and warranties is
recovered by Next Metrology, then the Buyer is excluded from recovering any part
of the Detriment in the form of the Discount for the same reason to the extent
already recovered by Next Metrology. Likewise, if a claim for a breach of a
Seller’s representations and warranties is recovered by the Buyer, then Next
Metrology is excluded from recovering any payments for the same reason to the
extent already recovered by the Buyer. With regard to any breach of the Seller’s
representations and warranties, the Buyer shall have no rights in relation to
the Seller other than those stipulated in this Section 8 (save for the Buyer’s
right to terminate this Agreement pursuant to Section 14). Should the Buyer,
Next Metrology or any Affiliate claim any Detriment from the Seller on any other
legal ground in an amount exceeding the claims which the Buyer may raise under
this Agreement, the Buyer undertakes to fully indemnify the Seller for any
payments the Seller has to make in this situation which would exceed the claims
which the Buyer may raise under this Agreement.
(b)Limitations to the Seller’s liability
(i)The Seller shall only be liable to the Buyer under this Section 8.01 for any
Detriment if the total amount of the Detriment exceeds Eur 10,000 (ten
thousand), in which case the Seller shall be liable only for the excess amount.
(ii)The Seller shall be liable to the Buyer under this Section 8.01 for any
Detriment up to a maximum amount equal to Eur 100,000 (one hundred thousand)
(the “Discount Cap”).
(iii)The limitation to the Seller’s liability provided for in paragraphs (b)(i)
and (b)(ii) above shall not apply to Detriment resulting or deriving from any
inaccuracy or breach of any of the representations and warranties relating to
authority, good standing, title to the Share, regulatory compliance,
Encumbrances, tax or social security matters, in which cases the Seller shall be
liable to the Buyer for any Detriment up to a maximum amount equal to 100 per
cent of the Purchase Price.
(iv)Irrespective of any other provision of this Agreement, the remedy available
to the Seller in connection with the breach of the Seller’s representations and
warranties shall not be limited in any way if such breach of the Seller’s
representations and warranties results or derives from fraud or intentional
misrepresentation.
(v)The Parties agree that any event or circumstance Disclosed by the Seller in
Exhibit 7.02 or the Disclosure Letter will exclude the Seller’s liability under
Section 8.01 as to the Detriment which specifically relate to the disclosure.
(vi)The Seller shall not be liable for specific Detriment to the Buyer to the
extent that:
(aa)The reasons for which the Detriment has arisen are attributable (wholly or
partially) to:
(i)changes made after the Completion to the Agreed Accounting Principles unless
such changes are made in accordance with applicable legal regulation or
specifically requested by competent state authorities; or
13
(ii)a retroactive change in the procedure of the relevant tax administrator
published after the Completion, or
(iii)the adoption of a law after the Completion having retroactive effect for
Next Metrology;
(c)Time limits to Seller’s liability
The Seller shall not be liable to the Buyer under Section 8.01 in respect of any
Detriment if the relevant Detriment Claim is notified to the Seller after:
(aa)the 20th (twentieth) Business Day after the later of (i) the date of
expiration of the relevant statute of limitation or (ii) the 5th (fifth)
anniversary of the Completion Date, as to any Detriment referred to in paragraph
(b)(iii) above;
(bb)the 20th (twentieth) Business Day after 12 months from the Completion Date,
for any Detriment relating to matters other than those indicated in
sub-paragraph (aa) above.
8.02 Breach of Buyer’s representations and warranties
(a)The Buyer shall pay to the Seller as a contractual claim originating under
this Section 8.02 the amount of all losses, damages, costs and penalties
incurred in, or suffered by the Seller, resulting or deriving from any
inaccuracy or breach of any of the representations and warranties made or given
by the Buyer in or pursuant to this Agreement.
(b)The provisions of Section 8.01 (including those concerning liability
limitations) shall apply to the obligations of the Buyer herein mutatis
mutandis.
8.03 Detriment Claim procedure
(a)Whenever an event or circumstance which could give rise to a Detriment Claim
(including a Third Party Claim) (“Detriment Event”) occurs for which a Party may
seek remedy under Section 8, the Party seeking the remedy (“Claiming Party”)
shall notify in writing the Party against which the Detriment Claim is made
(“Liable Party”) (and, for a Third Party Claim, within 120 (one hundred twenty)
days after the Claiming Party has actual knowledge of the Detriment Event)
(“Notice of Claim”). The Notice of Claim shall specify relevant facts known to
the Claiming Party giving rise to the Detriment Claim, the amount of the
Detriment and the request for payment of the Detriment in the form of the
Discount in case of the Buyer’s claim or request for payment of Detriment in
case of Seller’s claim.
(b)If the Detriment Event is a Third Party Claim against Next Metrology, the
following shall apply:
(i)the Buyer shall cause Next Metrology to diligently take all reasonable
defensive steps;
(ii)in the defense against the Third Party Claim, the Buyer shall cause Next
Metrology to consult with the Seller;
(iii)Next Metrology’s management and/or the Buyer shall inform the Seller about
(iv)in any event, the Buyer shall not agree to any settlement of the Third Party
Claim or to any waiver related thereto, without the prior written consent of the
Seller, not to be unreasonably withheld or delayed and which shall be considered
as granted absent response within 10 (ten) Business Days following written
request from the Buyer to the Seller. Should the Seller deny his approval, as a
condition to the effectiveness of such denial, (aa) he shall specify the reasons
for the denial in writing and (bb) he shall be liable for the relevant Detriment
including the immediate payment of all costs incurred to defend such Third Party
Claim as they are incurred by Claiming Party;
(v)the relevant obligations to pay the Detriment in the form of the Discount
shall survive until the Third Party Claim has been finally resolved.
14
(c)Payments of all amounts due by the Liable Party pursuant to Section 8 shall
(i)if the Detriment Event is a Third Party Claim against Next Metrology,
Buyer’s written request which shall bear a copy of:
(aa)the enforceable decision, award or order, whether final or provisional,
served upon Next Metrology and which ascertains or determines the Detriment ; or
(bb)the settlement agreement entered into by Next Metrology which determines a
Detriment .
(ii)in case of a Detriment Event other than a Third Party Claim against Next
Metrology, within 10 (ten) Business Days from receipt of the Notice of Claim;
provided that the Seller has not objected in writing to such Notice of Claim
within such 10 (ten) Business Day period (“Notice of Objection”). Any such
by the Seller, together with interest thereon from the date of the original
Notice of Claim until the date paid, at the interest rate set forth in Section
15.11, within 15 (fifteen) Business days from receipt of the Buyer’s written
request, which shall bear:
Tribunal referred to in Section 16.02 which ascertains or determines that the
Seller is liable for the claim; or
(bb)a copy of the settlement agreement entered into between Buyer and the Seller
which determines the amount that the Seller must pay relating to the claim.
SECTION 9
Further covenants and specific obligations of the Seller
9.01 General
(i)for the avoidance of any doubt, the Seller’s obligations provided for in this
Section 9 shall not be subject to Section 8 nor to the same restrictions,
limitations and procedure therein;
(ii)any payments due by the Seller pursuant to this Section 9 shall be made by
the Seller directly to the Buyer, unless the Buyer gives instructions to the
Seller to make such payments directly to Next Metrology.
9.02 Managing Directors’ Claims
The Seller shall indemnify and hold the Buyer and Next Metrology harmless from
and against any claim (and any consequence thereof) by the managing director of
Next Metrology who was in office at any time up to Completion, in relation to
matters relating to the period up to Completion.
9.03 Trade-names, trademarks and other intellectual or industrial property
The Seller shall not use or attempt to use, in the course of any business on his
own account or in conjunction with or on behalf of any person or in any other
manner whatsoever, directly or indirectly, the trade-names, trademarks, service
marks, brand names, designs or logos, domain names and any other similar
intellectual property, whether registered or not, or any other trade-name,
trademark, service mark, brand name, design or logo similar to such trade-names,
trademarks service marks, brand names, designs, logos, domain names or other
similar intellectual property of Next Metrology; (including the name Next
Metrology or TouchDMIS whether used as a standalone name or in association with
other names).
15
SECTION 10
Restrictive Covenants
(a)The Seller agrees that, as from the Completion Date and for a period of 3
(three) years thereafter (or in the case of the Seller, for the period of time
until the expiration date of any restrictive covenants provided for in his
Service Agreement, if shorter), in his capacity as a seller of the Share and
irrespective and without prejudice to any other restrictive covenant he has
agreed or will agree to, he shall not:
(i)either on his own account or in conjunction with or on behalf of any person,
carry on, engage, be concerned or interested (directly or indirectly and whether
as principal, shareholder, director, employee, agent, distributor, consultant,
partner or otherwise) in the business of designing, engineering, manufacturing,
marketing, selling, installing, servicing and maintaining CMMs and laser-based
and other technology, software and applications used in connection with CMMs;
(ii)either on his own account or in conjunction with or on behalf of any person,
solicit or endeavour to entice away from the Company (Buyer, Next Metrology and
their respective Affiliates) any person who, at the Completion Date, is an
officer, manager, employee, self-employed person, or consultant of Next
Metrology, whether or not such person would commit a breach of contract by
reason of leaving service or office;
(iii)either on his own account or in conjunction with or on behalf of any
person, endeavour to entice away from the Company any person who, at the
Completion Date of this Agreement, is a customer of Next Metrology (directly or
indirectly through software sales by original equipment manufacturers,
distributors and dealers), whether or not such customer would be in breach of
its contract with Next Metrology or – after Completion – with the Company as a
result thereof; and
(iv)either on his own account or in conjunction with or on behalf of any person,
as principals, shareholders, directors, employees, agents, distributors,
consultants, partners or otherwise) in any business conducted by the Company at
the Completion Date, or in any business involving the design, development,
manufacture, sale or servicing of machine vision sensors and systems utilizing
electro-optical techniques or component parts utilized in such sensors or
systems.
(b)The Seller and the Buyer represent to each other and acknowledge that the
provisions contained in Section 10(a) are necessary for the protection of the
Buyer’s and Next Metrology’s interests and goodwill. The geographical scope of
the Seller’s obligations contained in Section 10(a) shall be the entire world.
Should any such restriction or undertaking be void or voidable but would be
valid and enforceable if some part or parts of the restriction or undertaking
were deleted or modified, such restriction or undertaking shall apply with such
deletion or modification as may be necessary to make it valid and enforceable.
The consideration for the Seller’s fulfillment of the obligations contained in
this Section 10 has been included in the Purchase Price.
16
SECTION 11
Indemnity Holdback Account
(a)Upon Completion, the Buyer shall credit, by book entry only, to an escrow
ledger account (“Indemnity Holdback Account”) maintained by the Buyer a portion
of the Purchase Price in Cash equal to Eur 100,000 (one hundred thousand)
(“Indemnity Holdback Amount”). The Indemnity Holdback Amount shall serve the
purpose to secure the Seller’s timely fulfillment of all of his obligations as
arising from this Agreement (including the obligations provided for in Sections
8 and 9 (as confirmed pursuant to Section 4.02(a)(i)(ee)) and the obligation
deriving from any breach of the obligations arising from Section 10
(“Contractual Claim”).
(b)Any remaining balance in the Indemnity Holdback Account shall be paid by the
Buyer to the Seller upon expiration of the Indemnity Holdback Account, provided
that, if claims which may trigger the Seller’s obligation to pay a Contractual
Claim are pending upon the expiration date:
(bb)an amount equal to the lower of the balance of the Indemnity Holdback
Account and the aggregate amount of the outstanding Contractual Claims upon the
(c)The Indemnity Holdback Account shall expire twelve months after the
Completion Date.
(d)The following amounts shall be credited against and so reduce the Indemnity
Holdback Account (as a result, any Contractual Claim of the Buyer shall thereby
be automatically set off against a claim of the Seller to have the equivalent
part of the Purchase Price paid):
(i)amounts mutually agreed upon by the Buyer and the Seller;
(ii)amounts set forth in a certified copy of any award (whether final or
provisional) by the Arbitral Tribunal referred to in Section 16.02 which orders
the Seller to pay a Contractual Claim to the Buyer (or Next Metrology), but only
to the extent of the amount to be paid by the Seller as indicated in the
relevant award.
SECTION 12
SECTION 13
SECTION 14
Termination
(a)The Parties acknowledge that any Material breach by the Seller of any of the
obligations provided for in Sections 5.01, 5.02 or 5.03, in case the Seller
fails to remedy such breach, if the breach is capable of remedy, within an
additional period of 10 (ten) calendar days from the delivery of a written
notice by the Buyer to the Seller, shall entitle the Buyer to terminate this
Agreement with immediate effect by way of written notice.
(b)The Buyer shall further be entitled to terminate this Agreement with
immediate effect by way of written notice:
(i)in case any Material breach of any of the representations and warranties
given by the Seller pursuant to this Agreement occurs prior to or on the
Completion Date and the Seller fails to remedy such breach, in case the breach
is capable of remedy, within an additional period of 5 (five) calendar days from
the delivery of a written notice by the Buyer to the Seller;
17
(ii)in case either Party receives an order or other enforceable instrument
issued by a court of law or any other governmental authority or agency which
enjoins that Party to refrain from executing any document or taking any action
required for Completion pursuant to this Agreement or the law;
(iv)the Seller or Next Metrology is insolvent.
(c)With the exception of instances set forth in this Section 14, the Parties, to
the maximum extent allowed by Czech law, exclude all provisions of the Czech
Civil Code and other applicable regulations under which a Party might be
entitled to withdraw from or otherwise terminate this Agreement.
(d)The Parties agree that the right to terminate this Agreement under this
Section 14 cannot be utilised after the Completion occurs.
SECTION 15
Miscellaneous
15.01 Compliance
(a)The Parties acknowledge that, as from the Completion Date, Next Metrology
and anti-money laundering regulations. The Seller shall provide his utmost
models and procedures so as to guarantee as swift an integration of Next
Metrology into the Buyer’s group as possible after Completion.
15.02 Confidentiality
(a)Each of the Seller, Next Metrology and the Buyer shall at all times keep
strictly confidential and, as applicable, each of the Seller, Next Metrology and
the Buyer shall procure that their respective officers, employees and
professional advisers keep strictly confidential any information pertaining to
this Agreement (including but not limited to the purchase price and terms of
sale) and the financials, business operations, marketing practices or policies,
litigation, identity of customers as well as any other confidential aspect of
Next Metrology, except for such information relating to this Agreement which
Buyer and its Affiliates may be required to disclose in connection with
reporting and disclosures requirements of the Buyer and its Affiliates under
applicable law or the rules of The Nasdaq Stock Market and except for any such
information which:
(i)at the time of disclosure is publicly available or becomes publicly available
otherwise than, directly or indirectly, through the breach by any of the Seller,
Next Metrology or the Buyer of this Section 15.02 or the failure of any officer,
confidential; or
(b)The Seller and Next Metrology acknowledge that an Affiliate of the Buyer is
listed on The Nasdaq Stock Market and its stock is registered with the
Securities and Exchange Commission and is therefore subject to strict regulatory
obligations in relation to the disclosure of any information and data concerning
transactions similar to the transaction contemplated by this Agreement.
Therefore, the Seller and Next Metrology agree that any public disclosure of any
information or data concerning the transaction contemplated by this Agreement,
including any press release, shall be made only at such time and in such form
and substance as acceptable to the Buyer.
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15.03 Entire agreement and amendments
(a)This Agreement and the OITA shall together form the sole and entire agreement
between the Parties governing the Transaction as contemplated herein and
supersedes all prior verbal and/or written agreements between the Parties
concerning its subject matter. In the event of any inconsistency between the
Agreement and the OITA, this Agreement shall prevail. The Agreement shall
survive conclusion of OITA in its entirety with the exception of the obligation
of the Parties to enter into the OITA under Section 4.02(a)(iii)(aa), which
shall be consumed by conclusion of the OITA.
(b)The amendments to this Agreement shall be valid and effective if agreed upon
15.04 Successors - Assignment
consent of the other Parties, while such consent might not be unreasonably
withheld or delayed; provided that Buyer may Assign its rights under this
Agreement to a party who acquires all or substantially all of the Assets of Next
Metrology, provided that such assignment shall not relieve the Buyer of its
Seller.
15.05 Notices
if to Buyer:
47827 Halyard Drive
Plymouth, MI 48170
U.S.A.
Thomas S. Vaughn
Dykema Gossett, PLLC
400 Renaissance Center
Detroit, MI 48243
19
Angelo Muscarella
c/o
e-mail: lmastromatteo@gop.it
15.06 Language
conditions.
15.07 Severability
If any provision of this Agreement is held to be illegal, invalid, unenforceable
or deemed non-existent under present or future laws effective during the term of
this Agreement, such provision shall be fully severable. This Agreement shall be
construed and enforced as if such illegal, invalid, unenforceable, or
non-existent provision had never comprised a part of this Agreement and the
shall not be affected by the illegal, invalid, unenforceable or non-existent
such illegal, invalid, unenforceable or non-existent provision, a provision as
similar in terms to such illegal, invalid, unenforceable or non-existent
provision as may be possible and be legal, valid and enforceable shall be added
automatically, as a part of this Agreement.
15.08 Fees and expenses
(a)Except as otherwise expressly provided for by this Agreement, all legal and
other advisors’ fees, costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be borne by the Party
(b)All stamp duties, registration taxes and notary fees relating to the transfer
of the Share pursuant to Section 2(b) shall be borne by the Buyer.
15.09 Obligations of the Seller: general clause
(a)the Seller hereby agrees to cause Next Metrology to duly and timely fulfill
(b)Where the Seller covenants with the Buyer that he shall procure that a person
different from the Seller will comply with any of the provisions of this
Agreement, the Seller thereby covenants pursuant to Section 1769 second sentence
of the Czech Civil Code that if such person will not comply with the respective
provisions of this Agreement he will cover damage suffered by the Buyer and/or
Next Metrology resulting from such failure to comply.
15.10 Interest Rate
20
15.11 Waivers
(a)No delay, indulgence or omission in exercising any right, power or remedy
provided by this Agreement or by law shall operate to impair or be construed as
(b)The Seller agrees with the Buyer:
(i)to waive any claim or remedy or right which he may have as at Completion; and
(ii)that Next Metrology and any managing director, officer or employee of Next
Metrology shall have no liability whatsoever to the Seller on or after
Completion,
in respect of any misrepresentation, inaccuracy or omission in or from any
information or advice supplied or given by Next Metrology or a director, officer
or employee of Next Metrology for the purpose of assisting the Seller in giving
any warranty, representation, undertaking or covenant, in preparing due
diligence documents and in entering into this Agreement or any agreement or
document entered into pursuant to this Agreement.
15.12 Survival of the Agreement
The provisions of this agreement insofar as they have not been performed at
Completion shall remain in full force and effect notwithstanding Completion,
including conclusion of the OITA.
SECTION 16
Governing Law - Arbitration
16.01 Governing Law
the Czech Republic, without regard to the provisions governing conflicts of
laws.
16.02 Arbitration
Commerce of Paris, by three arbitrators, appointed in accordance with such
Rules, who shall be fluent in the English language.
(b)The place of the arbitration shall be Paris, France. The language of the
(c)Any dispute arising out of or related to this Agreement and any comparable
dispute arising out of the Mills SPA, the Topmes SPA and the Coord3 Agreement
shall be heard and decided in a single arbitration proceeding.
21
SIGNED by Angelo Muscarella
SIGNED by Perceptron, Inc.
Margaret Mary Kaczmarek Nelson
Vice President Signature : /s/ Margaret Mary Kaczmarek Nelson
22
EXHIBIT 1.03
Certain Definitions
“Affiliates” shall mean persons controlling, controlled by or under common
control with the person. For purposes of this Agreement, “control” shall be
interpreted in accordance with Section 74 et seq. of Act No. 90/2012 Coll. of
the Czech Republic, Act on Business Companies and Cooperatives, as amended.
“Agreed Accounting Principles” shall mean the Czech Accounting Principles.
table of contents. “Business Day/s” shall mean each calendar day other than
the City of Torino, Italy and the City of Prague, Czech Republic. “Buyer”
shall have the meaning indicated in the headings of this Agreement.
“Claiming Party” shall have the meaning indicated in Section 8.03(a). “CMM”
means coordinate measuring machine and equipment. “Company” shall mean the
Buyer, Next Metrology and their Affiliates. “Completion” shall mean the
consummation of all of the actions and transactions indicated in Section 4.02
(unless waived by the interested Party) and the completion of the transfer of
full title to and ownership of the Share to the Buyer as contemplated in this
Agreement. “Completion Date” shall mean the date upon which Completion will
take place, as specified in Section 4.01(a).
23
“Completion Date Debt”
shall mean the Debt of Next Metrology as at the Completion Date, to be
determined in accordance with the Agreed Accounting Principles. “Completion
Date Net Working Capital” shall mean the Notional Net Working Capital of Next
Metrology as at the Completion Date, to be determined in accordance with the
Agreed Accounting Principles. “Contractual Claim” shall have the meaning
indicated in Section 11(a). “Coord3” shall mean Coord3 Industries s.r.l.
“Coord3 Agreement” shall mean that certain Agreement for the purchase of 100% of
the business of Coord3 Industries s.r.l. which will be entered into between
Perceptron CMM, LLC, a company established under the laws of the State of
Michigan, United States of America, with offices at 47827 Halyard Drive,
Plymouth, Michigan 48170, United States of America, State of Michigan ID no.
E5614M, Muscarella and Coord3 Industries s.r.l., a company established under the
laws of Italy, with registered offices at corso Siccardi 11bis, Torino, Italy,
registration number 09061500014 on January 29, 2015. “Czech Accounting
Principles” shall mean Czech Republic generally accepted accounting principles.
“Czech Civil Code” Act No. 89/2012 Coll. of the Czech Republic, Civil Code,
as amended “Debt” shall mean all liabilities of Next Metrology other than
those included in the calculation of the Notional Net Working Capital.
“Detriment” shall have the meaning indicated in Section 8.01(a)(ii).
“Detriment Claim” shall mean a claim raised under Section 8.01 or under Section
8.02. “Detriment Event” shall have the meaning indicated in Section 8.03(a).
"Disclosed" means a matter that is fully and fairly disclosed with
sufficient detail and accuracy (as to its nature, legal purpose and title and
specific amount) so as to enable a reasonable assessment of its impact on Next
Metrology.
24
"Disclosure Letter" shall mean the letter in the agreed form dated the same date
as this Agreement from the Seller to the Buyer disclosing information
constituting exceptions to the representations and warranties indicated in
Sections 6(b) and 7.02 of this Agreement. “Discount” shall have the meaning
indicated in Section 8.01(a)(i). “Discount Cap" shall have the meaning
indicated in Section 8.01(b)(ii). “Disputed Matters” shall have the meaning
indicated in Section 3.03(b). “Due Diligence” shall have the meaning
indicated in Section 6. “Encumbrance” shall mean any mortgage, charge,
pledge, lien, security interest or attachment of any nature whatsoever, note of
the Cadastral Office indicating any potential or actual change in the legal
status of a property (in Czech: Plomba), options, right of first refusal,
easement (whether registered or unregistered), title retention, third party
rights (including in rem rights) or other securities or de facto situations
attached to a certain object or asset or share and limiting the rights
thereupon. “Encumbrances” shall be construed accordingly. “Environmental
Law” shall mean all applicable international treaties, laws, conventions, EU
directives or regulations, statutes, regulations, subordinate legislation (in
particular any regional, provincial municipal and other local law and/or
regulation), applicable in Italy, which from time to time relate to
Environmental Matters and Environmental Licences and all enforceable orders or
other instruments and other requirements of or issued by any competent public
authority, court or agency, concerning the protection of the environment or the
prevention, limitation, mitigation or remediation of harm to the environment or
relating to Environmental Matters. “Environmental License” shall mean any
permit, licence, authorization, consent or other approval, registration,
notification or communication required by any Environmental Law for the
operations of Next Metrology or of its business or in relation to the ownership,
lease, occupation or use of the properties used for the operations of the
Company or of its business. “Environmental Matters” shall mean all or any of
the following: air (including all layers of atmosphere), water and land
(including, without limitation, any of the foregoing within buildings and other
material or man-made structures above or below the ground) as well as all
organic and inorganic matter and living organisms and the systems supported by
or including any of the components of the foregoing; the disposal, spillage,
deposit, escape, discharge, leek, emission or presence of, contact with and
exposure of, any person to hazardous materials or Waste, as well as the creation
of any noise, vibration, radiation, nuisance or other adverse impact on the
environment, maintenance of human health and safety, and any other matters
relating to the condition, protection, maintenance, restoration or replacement
of the environment or any part of it. “Environmental” shall be interpreted
accordingly.
25
“Indemnity Holdback Account”
shall have the meaning indicated in Section 11(a). “Indemnity Holdback
Amount” shall have the meaning indicated in Section 11(a). “Exhibit/s” shall
mean all exhibits, as listed above in the table of contents. “Financial
Debt” shall mean all financial debts, inclusive of any bank debt, invoice
discounting facility, loan, borrowing, overdraft, shareholders’ loan, financial
(capital) lease. “Government Debt” shall mean the total of all amounts owed
by Next Metrology to various government tax or social security authorities or
agencies; including amounts owed under so called instalment agreements and all
other amounts owing that have not yet been formalized into agreements (including
interest and penalties); including both short term and long term amounts owed.
“Governmental Authority” shall mean any foreign, European Union, or Czech
national, regional or local governmental authority, quasi-governmental
authority, court, or any regulatory, administrative or other agency, or any
subdivision, department or branch of any of the foregoing. “Governmental
Authorization” shall mean any consent, permit, concession, license,
registration, approval, authorization, permit, order, exemption, certificate,
franchise, or variance issued, granted, given, or otherwise made available by or
under the authority of any Governmental Authority or pursuant to any applicable
law. “Hazardous Substance/s” shall mean any substance which is defined to be
hazardous, dangerous, toxic or harmful under any Environmental Law. “Liable
Party” shall have the meaning indicated in Section 8.03(a). “Material” or
“Materially” “material” or “materially” shall mean a breach, change or effect
having an impact greater than, or involving more than, Eur 4,000. “Material
Adverse Change” shall mean any change or effect that is Material that is
materially adverse to the financial situation, financial performance, business,
prospects, assets, liabilities, or value of the net assets of Next Metrology,
impacting the value of Next Metrology by greater than Eur 500,000; but excluding
any change or effect arising out of general economic conditions or conditions
affecting companies generally in the industry in which Next Metrology operates.
26
“Mills”
Keith Mills, British national, born in [ ], on [ ], domiciled at [ ], UK
passport no. [ ]. “Mills Share” shall have the meaning indicated in
Introduction A. “Mills SPA” shall mean the Agreement for the purchase of the
Mills Share by the Buyer dated January 29, 2015. “Muscarella” shall have the
meaning indicated in the headings of this Agreement. “Next Metrology” Next
Metrology s.r.o., a Czech Republic company duly existing and organized under
Czech law, with offices at Štěrboholská 1307/44, 102 00 Prague 10, Czech
Republic, Identification No.: 29129273, registered in the commercial register
maintained by the Municipal Court in Prague, Section C, Insert 202085,
registered share capital equal to CZK 200,000. “Notice of Claim” shall have
the meaning indicated in Section 8.03(a). “Notice of Objection” shall have
the meaning indicated in Section 8.03(c)(ii). “Notional Net Working Capital”
shall mean (i) the sum of all trade accounts receivable (net of specific
allowances for any of these accounts deemed uncollectible), (ii) the sum of all
inventory items (net of specific reserves for items deemed obsolete or Slow
Moving Inventory), (iii) prepaid expenses, and (iv) other current assets (with
expected life less than one year), LESS (v) the sum of all accounts payable,
expense accruals, accrued payroll (including vacation and statutory holiday
accruals), other current liabilities (including deferred tax liabilities), and
deposits from customers. “OITA” shall have the meaning indicated in Section
2(b). “Parties” shall mean the Seller, Next Metrology and the Buyer.
“Party” shall mean the Seller, Next Metrology and the Buyer, when individually
and generically referred to. “Permanent Disability” shall mean the person’s
total and permanent disability which prevents the person from performing for a
continuous period exceeding six months the duties assigned to the person.
27
“Permit”
shall mean any permits, consents, approval, resolution, licenses, certificates,
notices, filings, lodgments, agreements, directions, declarations,
registrations, notifications, exemptions, variations, renewals, permissions and
amendments and other authorizations and approvals including any conditions
thereof required or provided under Czech or other applicable law. “Property”
means office No. 17 of area of 56,59 m² situated in building “K” on plot no.
1350/2, which is registered in the cadastral area of Hostivař, municipality of
Prague, in title deed No. 139, used by Next Metrology to carry out its business.
“Purchase Price” shall have the meaning indicated in Section 3.01(a).
“Reference Date” shall mean December 31, 2014. “Reference Financial
Statements” Next Metrology Financial Statements as of December 31, 2014 as
attached to the Agreement as Annex 1. “Relevant Anniversary Date“ shall have
the meaning indicated in Section 3.04(b). “Required Consents” shall mean a
consent by TESLA KARLÍN, a.s., a company with its registered seat at Prague 10,
V Chotejně 9/1307, Zip Code 10200, Czech Republic, ID No.: 452 73 758, with the
sublease of the Property by Topmes to Next Metrology under the Sublease
Agreement. “Seller” shall have the meaning indicated in the headings of this
Agreement. “Service Agreements” shall have the meaning indicated in the
Coord3 Agreement. “Share” shall have the meaning indicated in Introduction
A. “Slow Moving Inventory” shall mean any and all inventory items that are
in excess of 360 days old as of the Completion Date. “Sublease Agreement“
shall have the meaning indicated in Section 13.
28
shall mean all (i) Czech and foreign taxes of any kind, levies or other like
assessments, customs, duties, imposts, charges or fees, including, without
limitation, income, gross receipts, ad valorem, value added, excise, real or
personal property, asset sales, use, license, payroll, transaction, capital, net
worth and franchise taxes, withholding, employment, social security, utility,
profits, transfer and gains taxes, professional, salary or other governmental,
local and municipal taxes imposed or payable to any government or subdivision or
penalties or additions to tax attributable to any such Tax; (ii) any liability
result of being or having been a member of any consolidated, combined, unitary
or other group or being or having been included or required to be included in
any return related thereto; and (iii) any liability for the payment of any
amount of a type described in clause (i) or clause (ii) as a result of any
other person. “Third Party Claim” shall mean a claim brought by any third
party against Next Metrology. “Topmes” Topmes s.r.o., a company established
under the laws of the Czech Republic, with offices at Štěrboholská 1307/44,
Hostivař, 102 00 Prague 10, Company ID: 00541940, registered in the Company
Register at Municipal Court of Prague, Section C, File 210793. “Topmes
Share” shall have the meaning indicated in Introduction A. “Topmes SPA”
shall mean the Agreement for the purchase of the Topmes Share by the Buyer dated
January 29, 2015. “Transaction” shall have the meaning indicated in Section
2(a). “Waste” shall mean any waste as defined or regulated by any
Environmental Law.
29
EXHIBIT 7.01
Buyer’s Representations and Warranties
(a) The Buyer is a corporation validly existing, duly incorporated and
in good standing under the laws of the State of Michigan, United States of
America.
any notice under any Contract, license, instrument, or other arrangement to
subject.
any kind.
7
EXHIBIT 7.02
Seller’s representations and warranties
1.Authority
(a)Next Metrology has full power and authority (including full corporate or
perform its obligations under this Agreement. Next Metrology and the Seller do
authorization, consent, or approval of any third party, or need to give any
notice to, make any filing with, or obtain any Governmental Authorization from,
any Governmental Authority, in order for the Parties to consummate the
nor the consummation of the transactions contemplated by this Agreement, shall:
Authority, or court to which Next Metrology or the Seller are subject; or (ii)
other arrangement to which Next Metrology or the Seller is a party or by which
of any liability or Encumbrance upon any of its assets or result in any present
or future indebtedness of Next Metrology becoming due and payable prior to its
stated maturity; or (iii) result in the right of any managing director or
employee of Next Metrology to any one-off payment, bonus or commission or to
terminate his employment other than on normal contractual terms as a result of
2.Good Standing
(i)Next Metrology is a limited liability company, validly existing, duly
incorporated and in good standing under the laws of the Czech Republic.
(ii)No resolution has been passed or will be passed prior to Completion to
approve the winding up of Next Metrology.
(iii)Next Metrology has all the necessary powers and authority to own, operate,
use, license or lease its assets and to carry on its business activity as it has
been and is currently carried on.
(iv)All corporate actions taken and which will be taken by Next Metrology in
connection with this Agreement have been duly authorized and the Seller and Next
Metrology have not taken any action that, in any respect, conflicts with,
constitutes a default under or results in any violation of any provision of law
or of their articles of association, by-laws or any other internal document.
(i)Neither Next Metrology nor the Seller is subject to any insolvency proceeding
of any kind nor do they satisfy the requirements for filing any insolvency
procedure of any kind, including on the basis of threatening insolvency (in
Czech: hrozící úpadek). No liquidator, insolvency trustee, bankruptcy receiver,
administrator or similar officer has been appointed in respect of Next Metrology
or the Seller. Next Metrology and/or the Seller have not and, to the best of the
Seller’s knowledge, no third party has taken any action with a view to file for
any such insolvency proceeding or to appoint any such liquidator, insolvency
trustee, bankruptcy receiver, administrator or similar officer.
(ii)No arrangement with any of Next Metrology or the Seller’s creditors of any
kind has been entered into or is currently being negotiated.
8
(iii)Neither Next Metrology nor the Seller has entered into any agreement for
the assignment of their assets (or any part of them) for the benefit of its
creditors.
(iv)Neither Next Metrology nor the Seller has filed any petition for the
restructuring of its debt or an insolvency or similar motion against themselves
or Next Metrology. Neither Next Metrology nor the Seller is aware that an
insolvency or similar motion would have been filed against any one of them in
any jurisdiction by any third person.
(v)No resolution has been passed to dissolve or liquidate Next Metrology.
(i)Next Metrology has all licences, permits, authorizations and consents from
any person, authority or body which are necessary to carry on its business. To
the best of Seller’s knowledge, Next Metrology has at all times been in
compliance with each Governmental Authorization and Permit. No event has
occurred or circumstance exists that could (with or without notice or lapse of
time) (I) constitute or result, directly or indirectly, in a violation of, or a
failure on the part of Next Metrology to comply with, any Governmental
Authorization and Permit, or (II) result, directly or indirectly, in the
Governmental Authorization and Permit.
(ii)Next Metrology has not received any notice or other communication (whether
any Governmental Authorization and Permit, or (II) any actual, proposed, or
potential revocation, suspension, cancellation, termination, or modification of
any Governmental Authorization and Permit.
(iii)To the best of Seller’s knowledge, all other filings required to have been
made with respect to such Governmental Authorizations and Permit have been duly
made on a timely basis with the appropriate Governmental Authorities.
(iv)No violation exists in respect of any such licences, permits, authorizations
and consents and no proceeding is pending or, to the best of the Seller’s
knowledge, threatened against Next Metrology to revoke or materially limit any
3.Share Capital of Next Metrology
(i)The issued and outstanding registered capital of Next Metrology is that
indicated in the headings of the Agreement. The issued registered capital has
been duly authorized, and is fully subscribed and paid. The ownership interests
representing 100% of the registered capital of Next Metrology have been duly
issued.
(ii)Mills is the sole registered, legal and beneficial owner of an ownership
interest representing 25% of the registered capital of Next Metrology.
(iii)Next Metrology’s ownership interest owned by Mills is free and clear from
any Encumbrances.
(iv)No resolution has been passed to approve any increase or decrease of the
registered capital of Next Metrology, no contribution outside the registered
capital (in Czech: příplatek) of Next Metrology has been made, and there are no
outstanding options, warrants, agreements, conversion rights, pre-emption rights
or other rights to subscribe for, purchase or otherwise acquire the Share or any
further ownership interests of Next Metrology.
(v)Next Metrology has issued no bonds or other securities.
(vi)No advance payment of dividends or any other distribution of any future
dividends has been approved or made.
(vii)No person is a shadow managing director of Next Metrology and no other
person than the Seller, Muscarella and Topmes exercises decisive influence or
control over Next Metrology.
9
All of Next Metrology’s assets are free and clear of any Encumbrances and there
are no outstanding options, warrants, agreements, pre-emption rights or other
rights to purchase or otherwise acquire Next Metrology, any portion thereof or
5.Financial Statements
(a)A list of all the bank accounts of Next Metrology with the identification of
all persons with access to such accounts (whether having right to dispose of
funds or not) are indicated in Annex 5(a).
(b)The Completion Date Net Working Capital is equal to or greater than a
negative Eur 30,000 (thirty thousand).
(c)Upon the Completion Date, Next Metrology’s Debt is not greater than Eur
50,000 (fifty thousand).
6.Accounts receivable
The accounts receivable of Next Metrology, after taking into account any
applicable reserve for returns, claims and bad debts shown in Annex 6, are
existing, valid and legitimate and collectable.
7.Real estate properties
(i)Next Metrology carries out and operates its business in the Property only and
it does not own, lease or otherwise use or occupy any other real estate property
(and Next Metrology upon Completion will carry out and operate its business in
the Property only and will not own, lease or otherwise use or occupy any other
real estate property).
(ii)Next Metrology is entitled to use the Property, with no restriction
whatsoever, on the basis of the lease agreement whose lessor, amount of the
rent, date of execution, expiration date are indicated in Annex 7(ii). Next
Metrology has duly and timely fulfilled all obligations arising from such lease
agreement. The lessor is not entitled to terminate or withdraw from the lease
agreement referred to above as a consequence of the consummation of the
Transaction.
8.Fixed tangible assets (other than real estate properties)
(a)Ownership
(i)Next Metrology has good title to and legal and beneficial ownership of the
assets listed in Annex 8(a)(i).
(ii)The assets listed in Annex 8(a)(i) are free and clear of any Encumbrances.
Next Metrology is not a party to any capital lease agreement (leasing) except
for those listed in Annex 8(b).
Next Metrology has no operating lease agreements in place for any asset, except
for the assets listed in Exhibit 8(c).
(d)General
(i)Annex 8(a)(i) is a complete and accurate list of all assets owned and used
(as the case may be) by Next Metrology.
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(ii)To the best of Seller’s knowledge, all assets owned or however used Next
Metrology comply with all laws and regulations.
9.Intellectual property
(i)Next Metrology has all rights (including the right to exercise economic
rights) and has been provided by all its employees, contractors and other
authors with consents allowing interference with moral rights to the maximum
extent permitted by applicable law in connection with all works protected by
copyright and copyright neighboring rights (including any and all literary,
artistic, science, musical, graphic, photography, software and copyright
database works) as listed and described in Annex 9.(i) and is the sole legal and
beneficial owner of the trademarks, trademark applications, industrial designs,
industrial design applications, manufacturing and trade secrets, inventions,
patents, patent applications, technology, know how, and databases, listed and
described in Annex 9.(i) (“Intellectual Property”). Next Metrology owns no
intellectual property other than that listed in Annex 9(i).
(ii)The Intellectual Property is free and clear from any Encumbrances.
(iii)The Intellectual Property is used in good faith.
(iv)None of the items and assets of the Intellectual Property, or any of its
part, is licensed to third parties or is part of a branch of a business as a
going concern which is leased to third parties or has been assigned to third
parties or on which a third party is entitled to the usufruct, except for the
licences indicated in Annex 9(iv).
(v)All fees, taxes and duties for all the registrations and maintenance of all
Intellectual Property have been duly and timely paid by Next Metrology.
(vi)To the best of the Seller’s knowledge, the Intellectual Property does not
infringe any third party rights.
(vii)There are no proceedings (including opposition proceedings before any
authority or challenges) concerning the Intellectual Property which are pending
or, to the best of the Seller’s knowledge, threatened, and Next Metrology has
Intellectual Property. Next Metrology is not obligated to pay any royalty,
license fee, charge or other amount with regard to any Intellectual Property.
(viii)The Seller is not aware of any actual or potential infringements of the
Intellectual Property by any third party.
(ix)No director, officer, shareholder, employee, consultant, contractor, agent
or other representative of Next Metrology owns or claims any rights in (nor has
any of them made application for) any Intellectual Property.
(x)Each software used by Next Metrology has been and is duly licensed to it and
all relevant considerations for such licences have been duly and timely paid by
Next Metrology.
(xi)Next Metrology has included a copyright notice on any product that embodies
a copyright owned by Next Metrology.
(xii)To the best of the Seller’s knowledge, Next Metrology’s software do not
contain viruses, worms, trojan horses, time bombs, backdoor access or any other
adware, malware or spyware that could be used to interfere with the
functionality of such software.
(xiii)No Person has (or had) a copy of, or has (or had) the right to access now
or at some time in the future, any source code for material Software; and there
are no agreements under which Next Metrology has placed or is required to place
(xiv)No Intellectual Property was developed by Next Metrology using (in whole or
Governmental Authority.
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(xv)No Person other than the Seller has ownership of or rights to any
Intellectual Property, excluding such Intellectual Property that is the subject
of a licence.
(xvi)Next Metrology has taken all reasonable actions to protect its trade
secrets included in the Intellectual Property from unauthorized use or
disclosure, and to maintain such trade secrets in confidence.
(xvii)The source code for all material software is in a form that a programmer
of ordinary skill in the applicable programming language(s) is able to print,
display, and read.
(xviii)None of the software owned by, or developed by or for the benefit of,
Next Metrology contains or requires use of any “open source” code, shareware or
other software that does or may require disclosure or licensing of any such
software or any other Intellectual Property owned by Next Metrology.
(xix)All Intellectual Property (or any information and documents containing or
materially relating to the Intellectual Property) is in a form that a person
skilled in the relevant art is able to use such Intellectual Property in any
manner permitted by applicable law and print, display and read such information
or documents.
(xx)Next Metrology has all rights to the domain names listed and described in
Annex 9(i) (the “Domain Names”). The Domain Names were registered and are used
in good faith, are free from any Encumbrances and all fees, taxes, duties for
all the registrations and maintenance of the Domain Names have been duly and
timely paid. The Domain Names do not infringe on any third party rights
(including any third party trademarks or trade names) and Next Metrology is not
aware of any actual or potential infringements arising in connection with the
Domain Names. There are no proceedings (including arbitration) concerning the
domain names before any authority which are pending, or to the best of the
Seller´s knowledge, threatened, and Next Metrology has not entered into nor is
it negotiating any settlement agreements regarding the domain names. Next
Metrology does not allow any third party access to any of the domain names.
10.Debt
As of the date this representation is made, Next Metrology’s Debt and accounts
payable are as indicated in Annex 10, plus accounts payable incurred after the
date hereof in the ordinary course of business consistent with the past
practice.
11.Guarantees and securities
(i)No guarantees or patronage letters or other securities have been granted or
created by third parties (including the Seller) for the benefit of Next
Metrology.
(ii)Next Metrology has issued or granted no guarantees or patronage letters
and/or created securities in favor of any third party including the Seller.
Metrology.
12.Books and records
(i)All books and records of Next Metrology (including all tax books) have been
applicable laws and the Agreed Accounting Principles and fairly reflect, in
liabilities of Next Metrology. All of such books and records are under the
direct control of Next Metrology and have been kept for the duration prescribed
by the applicable civil and tax laws and regulations.
(ii)The records of the resolutions of managing directors and the shareholders of
Next Metrology are accurate and accurately reflect all actions taken and all
resolutions passed by managing directors and the shareholders of Next Metrology.
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13.Litigation
threatened in writing or, to the best knowledge of the Seller, threatened other
than in writing, before any court or governmental or regulatory or
administrative authority, domestic or foreign, or before any arbitrator of any
nature to which Next Metrology is a party other than those indicate in Annex
13(i). To the best of the Seller’s knowledge, no facts or circumstances exist
which may give rise to any such claims, actions, suits, proceedings or
investigations.
14.Employment matters - Agents
(i)Annex 14(i) lists the employees of Next Metrology with their name and
employment position. There are no accrued deferred salary / severance payment
and other statutory monetary accrued entitlements due to such employees. The
information contained in Annex 14(i) is true, accurate and complete as of the
date hereof.
(ii)Next Metrology has no employees other than the employees listed in Annex
14(i). No person other than the employees listed in Annex 14(i) may legitimately
claim that he/she has a subordinate employment relationship with Next Metrology.
(iii)No litigation, whether pending or threatened in writing or, to the best
knowledge of the Seller, threatened but not in writing, exists between Next
Metrology and any employee who is presently on its payroll as well as any former
employee.
(iv)Next Metrology is not in breach of any obligation to pay to any of its
(v)To the best of the Seller’s knowledge, Next Metrology has complied with all
employment, health insurance and social security applicable laws and regulations
and collective bargaining agreements (including those executed with local/plant
unions, if any) governing employment, as well as with all employment practices,
terms and conditions of employment, wages, hours and benefits, including any
provision relating to health and safety.
(vi)Up to the date hereof no employee of Next Metrology has actually performed
prescribed by the relevant provisions of his/her individual employment
agreement.
(vii)There is no strike, slowdown or stoppage actually pending or threatened in
writing or, to the best knowledge of the Seller, threatened but not in writing,
against or involving Next Metrology.
(viii)There is no employee bonus, stock option, incentive, deferred
pension or severance plans (i) to which Next Metrology is a party or (ii) which
are maintained, contributed to or sponsored by Next Metrology for the benefit of
the employees, other than those provided for by the law.
(ix)Up to the date hereof the total accrued deferred salary / severance
indemnity of each employee of Next Metrology has been calculated and accrued
(x)Next Metrology has: (1) paid to the competent authorities all compulsory
social welfare, social security and health insurance funds and provided to such
authorities any requested document concerning the same; (2) fully paid all
wages.
(xi)No employee of Next Metrology is entitled to receive any payment of any
(xiv)Next Metrology has not made any loan to any of its employees.
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(xv)Next Metrology has no workers on a project basis.
(xvi)Next Metrology has no fixed term employees.
(xvii)Next Metrology has no self-employed workers.
(xviii)Next Metrology has duly and timely fulfilled all of its tax, social
security and health insurance obligations in relation to the current and past
managing directors.
(xix)Next Metrology has no commercial agents.
(xx)Next Metrology has no collective bargaining agreements.
15.Compliance with the law – Regulatory compliance
(i)To the best of the Seller’s knowledge, the operations of Next Metrology have
been conducted, in all material respects, in compliance with all permits,
applicable laws, regulations, orders and other requirements of all courts and
other governmental or regulatory authorities having jurisdiction over Next
Metrology, including any such laws, regulations, orders or other requirements
relating to product safety, accident prevention, export control, money
laundering, anti-corruption, international sales and business ethics and health
and safety on the work place.
(ii)Next Metrology has not received a notification of any violation of any such
law, regulation, order or requirement, or, to the best of the Seller’s
knowledge, are in default with respect to any order, writ, judgment, award,
injunction or decree of any court or governmental or regulatory authority or
arbitrator applicable to Next Metrology, or any of its assets, properties or
operations.
(iii)To the best of the Seller’s knowledge, nor Next Metrology, none of its
directors, officers or employees has committed any act or omission which may
have caused any damage to any public authority or entity.
16.Contracts
(i)Annex 16(i) lists all contracts to which Next Metrology is a party.
(ii)In relation to the customers’ or suppliers’ contracts of which Next
this paragraph (i) as a consequence of the sale of the Shares to the Buyer.
(iii)Next Metrology has duly and timely fulfilled in all material respects all
17(i) above.
(iv)With respect to each contract entered into by Next Metrology: (A) the
contract is legal, valid, binding, enforceable, and in full force and effect
(or, as the case may be in relation to past agreement expired or terminated,
were legal, valid, binding and enforceable) against Next Metrology and, to the
best of the Seller’s knowledge, the other parties thereto; (B) the contract
contemplated by this Agreement; (C) Next Metrology and, to the best of the
Seller’s knowledge, no other party is in breach or default, and, to the best of
the Seller’s knowledge, no event has occurred that with notice or lapse of time
acceleration, under such contract; (D) no party has repudiated any provision of
such contract, served a notice of termination of such contract or indicated an
intent to terminate such contract; (E) there is no renegotiation of, attempt to
renegotiate, or outstanding rights to renegotiate any such contracts with any
person, and no person has made written demand for such renegotiation; (F) no
party is entitled to withdraw from any contract without cause or as a
consequence of the consummation of the Transaction; (G) to the best of the
Seller’s knowledge all contracts to which Next Metrology is a party and which
should have been awarded through a public tender process have been awarded in
14
(v)Since January 1, 2013, no supplier of Next Metrology has indicated that it
shall stop, or materially decrease the rate of, supplying materials, products or
services to Next Metrology or initiated or threatened litigation as a result of
a dispute nor has Next Metrology refused to pay any such supplier due to
quality, timeliness or other issues.
(vi)Since January 1, 2013, no customer has indicated that it stop, or materially
decrease the rate of, purchasing products or services from Next Metrology,
threatened litigation as a result of a dispute. None of Next Metrology’s
agreements with its customers contain provisions which permit the customer to
terminate their arrangement with Next Metrology as a result of the consummation
17.Product Liability and product warranty
(i)No product liability claims are pending against Next Metrology.
(ii)Next Metrology has not received any order from any governmental authority to
recall any of the products manufactured and delivered. No event has occurred or
circumstance exists that (with or without notice or lapse of time) could result
in any such liability or recall. Annex 17(ii) sets forth all product liability
claims of Next Metrology settled during the past two (2) years.
(iii)Attached as Annex 17(iii) is a copy of the form of each product warranty
issued by Next Metrology that is still in effect. Each product manufactured,
repaired, sold, leased, or delivered by Next Metrology has been in conformity
warranties, and Next Metrology has no liability (and, to the best of Seller’s
connection therewith. No product manufactured, repaired, sold, leased, or
delivered by Next Metrology is subject to any guaranty, warranty, or other
18.Taxes
(i)Next Metrology complied with all obligations in respect of Tax.
(ii)All tax returns, reports or other filings that are required to be filed by
Next Metrology on or before the date this representation is being made with any
tax, social security or health insurance authorities have been duly and timely
filed. Such tax returns, reports or other filings fully reflect the tax, social
security and health insurance liabilities of Next Metrology, at the time of the
filing, for the relevant tax period. Next Metrology currently is not the
claim has ever been made by an authority in a jurisdiction where Next Metrology
payable) upon the Target Business.
(iii)All Taxes of Next Metrology: (i) payable on or before the date this
appropriate provisions have been made therefore in Next Metrology’s books and
records.
(iv)No claim for assessment or collection of Taxes has been asserted against
Next Metrology and there are no such claims threatened in writing or, to the
best of the Seller’s knowledge, threatened other than in writing, against Next
Metrology. Neither Next Metrology nor the other Seller nor any director or
officer (or employee responsible for Tax matters) of Next Metrology expects any
Governmental Authority to assess any additional Taxes for any period for which
Tax Returns have been filed.
15
(v)Next Metrology has withheld from its employees, independent contractors,
(vi)Next Metrology has not received any written or oral notice that it is in
(vii)Next Metrology has not received any notice of a proposed Tax, social
security, or health insurance inspection or any other administrative proceeding
or court proceeding nor are any of the foregoing pending or threatened in
writing, or to the best of the Seller’s knowledge, threatened but not in writing
with regard to any Taxes or Tax Returns.
(viii)Next Metrology is a party to no dispute with any tax authority in relation
to any Tax.
(ix)Annex 18 sets forth Next Metrology’s open tax audit years.
19.Public grants
Next Metrology has never received nor benefitted from any public grants.
20.Privacy and personal data protection
(i)To the best of the Seller’s knowledge, Next Metrology has complied with all
laws and regulations governing the protection of privacy and personal data.
(ii)To the best of the Seller’s knowledge, the consummation of the Transaction
will not violate any privacy policy, information security policy, terms of use,
customer agreements or any applicable laws or regulations relating to the use,
storage, treatment, dissemination or transfer of any personal data or
information or confidential information of a third party.
21.Loans to or by the Seller
owed by Next Metrology to the Seller, his Affiliates or to any director,
officer, or employee of Next Metrology or any person related to a director,
officer, or employee as aforesaid, nor is there any indebtedness owed to Next
Metrology by any such person.
22.Equity Interests; Branches
(i)No interest in any legal entity is owned (whether directly or indirectly) by
Next Metrology nor is Next Metrology a member of any partnership, joint venture,
consortium or other incorporated or unincorporated association.
(ii)Next Metrology has no branch, center of main interests, place of business or
establishment outside of the Czech Republic.
23.Information Technology
(i)Next Metrology has an information technology system (i.e. personal computers,
network, servers and connected devices and software, hereinafter “IT System”)
fully functioning and suitable to operate its business in an efficient manner.
(ii)The IT System is suitable and works properly for the purpose of supporting
the management of Next Metrology’s business and allowing all its employees to
16
(iv)Next Metrology has acquired full title to and ownership of, or a legitimate
right to use, any and all third party software and/or intellectual property used
in the IT System.
(v)To the best knowledge of the Seller, the use of the software and intellectual
property relating to the IT Systems and use of the IT System itself does not
infringe any third party right or statutory provision.
(vii)Next Metrology has devised and implemented with the utmost care specific
preserving the security of its IT System, data and intellectual property.
(viii)Next Metrology has taken all reasonable steps to safeguard the IT System
utilized in the operation of its business, including the implementation of
procedures to ensure that such information technology systems are free from any
hardware components that in each case permit unauthorized access or the
(ix)The consummation of the Transaction (or any part thereof) will not disrupt
or discontinue the operation and functionality of the IT System.
24.Subsequent Events
Since the Reference Date, the business of Next Metrology has been conducted in
accordance with Section 5.01(a) of the Agreement and of all applicable laws.
Since the Reference Date, Next Metrology has taken none of the following
actions:
(xxvii)sale or disposal of any assets;
of Next Metrology’s assets or the charging of any of said assets with any
Encumbrances;
(xxix)decisions to incur any indebtedness or to borrow any money (except within
the limits of the facilities currently available to Next Metrology as disclosed
in writing to the Buyer), or to enter into any factoring or invoice discount
agreement;
of any receivables, or discount any receivables;
(xxxi)transactions (including share capital increase or decrease) which affect
the share capital of Next Metrology;
the shares of Next Metrology or any further share to be issued by Next Metrology
and issuance of any bond or other securities;
(xxxiii)decisions to undertake any capital commitment (purchase or financial /
venture agreements;
(xxxvi)recruitment of any new registered managing director or key manager;
(xxxvii)any redundancy plan;
17
(xxxix)agreements with customers or suppliers (including purchase orders) (aa)
terminate for change of control, or (dd) which provide for restrictions to the
freedom to operate in the market, or (ee) whereby Next Metrology must give
unusual warranties or guarantees, or (ff) which contemplate unusual payment
terms if compared with standard market practice;
(xl)agreements with related parties (including shareholders, directors or
or employees);
(xli)change in accounting methods, policies or procedures or presentations of
(xlii)settlements of disputes;
(xlvi)permitting the lapse or forfeiture of intellectual property rights or
other intangible assets;
(xlviii)negotiation for the settlement or compromise, or settlements or
compromise, of any tax liability;
25.Material Adverse Change
No Material Adverse Change in Next Metrology has occurred between the Reference
Date and the date this representation is made.
26.No Broker
The Seller has entered into negotiations with the Buyer in relation to the
any broker, other than Delta Metrology which will be paid a deal consummation
fee directly by the Buyer.
27.Foreign Corrupt Practices Act and International Trade Sanctions
Neither Next Metrology, nor the Seller acting on its behalf, nor any of their
behalf of Next Metrology has, in connection with the operation of Next
Metrology, (i) used any corporate or other funds for unlawful contributions,
Act of 1977, as amended, or any other similar applicable law, (ii) paid,
accepted or received any unlawful contributions, payments, expenditures or
gifts, or (iii) violated or operated in noncompliance with any export
restrictions, anti-boycott regulations, embargo regulations or other similar
applicable law, or (iv) violated or operated in noncompliance with No. 253/2008
Coll., on certain measures against legalization of proceeds of crime and
terrorist financing, as amended.
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28.Affiliate Transactions
(a)Except as set forth in Annex 28, none of the Seller, his Affiliates, and his
relatives, and to the best of the Seller’s knowledge, Next Metrology, its
directors, officers, employees or shareholders, are a party to, or the
beneficiary of, any contract or material transaction relating to Next Metrology,
(b)All the transactions and contracts set forth in Annex 28 were performed under
the terms and conditions usual at the time and place and in accordance with the
legal rules and regulations (including corporate, accounting and Tax
regulations). All the costs and expenses expended by Next Metrology within the
transactions set forth in Annex 28 are Tax deductible, save for those expressly
excluded from the Tax-deductible costs in the Tax returns filed prior to the
date of this Agreement (this does not apply to the costs or expenses considered
as not Tax deductible in future as a result of changes in the Tax regulations).
29.No Other Business
Except as set forth on Annex 29, Next Metrology has never conducted any business
or other operations other than the current business of developing software and
applications used in connection with CMMs (the “Current Business”) and Next
Metrology has no liabilities or obligations, known, unknown, contingent or
otherwise, arising from previously disposed of or discontinued operations, or
that are not related to or did not arise from the operation of the Current
Business.
19
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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 December 9, 2013 Date of Report (Date of earliest event reported) SPOTLIGHT INNOVATION INC. (Exact name of registrant as specified in its charter) Nevada 333-141060 98-0518266 (State or other jurisdiction of incorporation) (Commission File Number) (IRS Employer Identification No.) 6750 Westown Parkway, Suite 226 West Des Moines, IA (Address of principal executive offices) (Zip Code) American Exploration Corporation 407 2nd St. SW, Suite 700 Calgary, Alberta, Canada T2P2Y3 (Former name or former address, if changed since last report (515) 669-1215 Registrant’s telephone number, including area code N/A (Former name or former address, if changed since last report) Check the appropriate box below if the Form 8-K 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)) Item 2.01 Completion of Acquisition or Disposition of Assets Effective December 10, 2013American Exploration Corporation (now known as Spotlight Innovation Inc., see Item 5.03 below, hereinafter the “Company”) consummated the transactions contemplated by that certain merger agreement (the “Merger Agreement”) dated February 17, 2013 by and between the Company and SpotlightInnovation LLC (hereinafter the “LLC”). All of the issued and outstanding membership interests of the LLC (the “Membership Interests”) will be converted into an aggregate of 7,500,000 fully paid and non-assessable shares of Company restricted common stock (the “Shares”) on a post Reverse Split (as defined in item 5.03 below) basis. The issuance of the Shares was not registered under the Securities Act of 1933, and was made in reliance upon the exemptions from the registration requirements of the Securities Act set forth in Section 4(2) thereof. Additional responsive information can be found in the Company’s Definitive 14C filed with the Securities and Exchange Commission on October 29, 2013. Item 3.02 Unregistered Sales of Equity Securities Responsive information for this Item can be found in the disclosure contained above in Item 2.01. Item 5.01 Changes in Control of Registrant Responsive information for this Item can be found in the disclosure contained above in Item 2.01. Item 5.02 Departure Of Directors Or Principal Officers; Election Of Directors; Appointment Of Principal Officers Effective December 10, 2013 upon the consummation of the closing of the transactions contemplated in the Merger Agreement, Steven Harding and Brian Manko have resigned as officers and directors of the Company. Additional responsive information can be found in the Company’s Definitive 14C filed with the Securities and Exchange Commission on October 29, 2013. 2 Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year Effective December 9, 2013, the Company amended its Amended Articles of Incorporation as follows: (i) amended Article 1 in order to change the name of the Company to Spotlight Innovation Inc., (ii) amended Article 3 in order to increase the number of shares of stock as follows: Four Billion (4,000,000,000), par value $0.001 per share, all of which will be designated “Common Stock,” and Five Million (5,000,000), par value $0.001 shares of preferred stock, 4,000,000 of which are designated as blank check preferred stock, 500,000 shares of Preferred Stock of the Company designated as “Series A Preferred Stock,” and 500,000 shares of Preferred Stock of the Company designated as “Series C Preferred Stock” both with the designations, rights and preferences as set forth on the Certificate of Designation of such Series attached hereto. Each 500 shares of the issued and outstanding shares of Common Stock of this corporation shall thereby and thereupon automatically be combined into one (1) validly issued, fully paid and non-assessable share of Common Stock of this corporation (the "Reverse Stock Split").No scrip or fractional shares will be issued by reason of the Reverse Stock Split.In lieu thereof, Stockholders of record who otherwise would be entitled to receive fractional shares because they hold a number of old shares not evenly divisible by the number of new shares for which each old share is to be exchanged, will be entitled, upon surrender of certificates representing such shares, to an additional share of common stock in lieu thereof. Item 5.07 Submission of Matters to a Vote of Security Holders On or about July 22, 2013, a majority of the outstanding shares (54%) approved the following actions via written consent:(i) the Merger Agreement; (ii) the appointment of Cristopher Grunewald as a member of the Board of Directors and as the President of the Company; (iii) an amendment to the articles of incorporation to change the name of the Company from "American Exploration Corporation" to "Spotlight Innovation Inc."; (iv) an amendment to the articles of incorporation to increase the total authorized capital from 2,100,000,000 shares of common stock, par value $0.001, to 4,000,000,000 shares of common stock, par value $0.001; (v) an amendment to the articles of incorporation to authorize 5,000,000 shares of preferred stock, including two new series of preferred stock, and blank check preferred stock and (vi) a reverse stock split of one for five hundred (1:500) of the shares of common stock of the Company. The foregoing amendments to the Company’s Articles of Incorporation were effective December 9, 2013 and the merger was effective December 10, 2013. 3 Item 9.01 Financial Statements and Exhibits (d) Exhibits. Exhibit No. Description Filed with this Current Report Incorporated by reference Form Filing Date Exhibit No. Certificate of Amendment to Articles of Incorporation, Including Certificate of Designation for Series A and Series C Preferred Stock. x Articles of Merger x Series A Convertible Preferred Stock Certificate of Designation filed with the Secretary of State of Nevada. x Press Release dated December 12, 2013. x 4 SIGNATURES 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. SPOTLIGHT INNOVATION INC. Date: December 12, 2013 By: /s/ Cris Grunewald Name: Cris Grunewald Title: President 5
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Name: Commission Regulation (EC) No 840/98 of 22 April 1998 altering the export refunds on white sugar and raw sugar exported in the natural state
Type: Regulation
Date Published: nan
EN Official Journal of the European Communities23. 4. 98 L 120/5 COMMISSION REGULATION (EC) No 840/98 of 22 April 1998 altering the export refunds on white sugar and raw sugar exported in the natural state THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Community, Having regard to Council Regulation (EEC) No 1785/81 of 30 June 1981 on the common organization of the markets in the sugar sector (1), as last amended by Regula- tion (EC) No 1599/96 (2), and in particular the second subparagraph of Article 19 (4) thereof, Whereas the refunds on white sugar and raw sugar exported in the natural state were fixed by Commission Regulation (EC) No 791/98 (3); Whereas it follows from applying the detailed rules contained in Regulation (EC) No 791/98 to the informa- tion known to the Commission that the export refunds at present in force should be altered to the amounts set out in the Annex hereto, HAS ADOPTED THIS REGULATION: Article 1 The export refunds on the products listed in Article 1 (1) (a) of Regulation (EEC) No 1785/81, undenatured and exported in the natural state, as fixed in the Annex to amended Regulation (EC) No 791/98 are hereby altered to the amounts shown in the Annex hereto. Article 2 This Regulation shall enter into force on 23 April 1998. This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Brussels, 22 April 1998. For the Commission Franz FISCHLER Member of the Commission (1) OJ L 177, 1. 7. 1981, p. 4. (2) OJ L 206, 16. 8. 1996, p. 43. (3) OJ L 114, 16. 4. 1998, p. 5. EN Official Journal of the European Communities 23. 4. 98L 120/6 ANNEX to the Commission Regulation of 22 April 1998 altering the export refunds on white sugar and raw sugar exported in its unaltered state Product code Amount of refund ï £ § ECU/100 kg ï £ § 1701 11 90 9100 38,91 (1) 1701 11 90 9910 38,40 (1) 1701 11 90 9950 (2) 1701 12 90 9100 38,91 (1) 1701 12 90 9910 38,40 (1) 1701 12 90 9950 (2) ï £ § ECU/1 % of sucrose à 100 kg ï £ § 1701 91 00 9000 0,4230 ï £ § ECU/100 kg ï £ § 1701 99 10 9100 42,30 1701 99 10 9910 44,01 1701 99 10 9950 44,01 ï £ § ECU/1 % of sucrose à 100 kg ï £ § 1701 99 90 9100 0,4230 (1) Applicable to raw sugar with a yield of 92 %; if the yield is other than 92 %, the refund applicable is calculated in accordance with the provisions of Article 17a (4) of Regulation (EEC) No 1785/81. (2) Fixing suspended by Commission Regulation (EEC) No 2689/85 (OJ L 255, 26. 9. 1985, p. 12), as amended by Regulation (EEC) No 3251/85 (OJ L 309, 21. 11. 1985, p. 14). |
Exhibit 10.27A
EXECUTION COPY
This AMENDMENT NO. 1 TO MASTER REPURCHASE AGREEMENT (this “Amendment”), is made
and entered into as of June 26, 2020, between:
MUFG Bank, Ltd., a Japanese banking corporation (“MUFG”), as the Buyer (the
“Buyer”);
CHS Capital, LLC, a Minnesota limited liability company (“CHS Capital”), as the
Seller (the “Seller”); and
solely for purposes of Section 5.3 hereof, CHS Inc., a Minnesota corporation
(“CHS”), as guarantor (“Guarantor”),
and amends that certain 1996 SIFMA Master Repurchase Agreement, dated as of
September 4, 2018, between the Buyer and the Seller, as amended or otherwise
modified from time to time prior to the date hereof, the “Master Repurchase
Agreement”, and as amended hereby, the “Amended Master Repurchase Agreement”).
Each of the Buyer and the Seller may also be referred to herein individually as
RECITALS
WHEREAS, the Parties entered into the Master Repurchase Agreement for the
purpose of Seller transferring to the Buyer certain securities or other assets
against the transfer of funds by the Buyer, with a simultaneous agreement by the
Buyer to transfer to Seller such securities or other assets at a date certain or
on demand, against the transfer of funds by Seller;
WHEREAS, the Parties, inter alios, entered into that certain Master Framework
Agreement, dated as of September 4, 2018 (the “Framework Agreement”) and certain
other Transaction Agreements for the purpose of providing Sellers with a
facility under which the Buyers will enter into certain sale and repurchase
agreements with each Seller with respect to their respective Seller Notes;
WHEREAS, Guarantor entered into the Guaranty in favor of Buyer Agent and the
Buyers pursuant to which Guarantor guaranteed the payment and performance of all
obligations, liabilities and indebtedness owed by Seller under the Transaction
Agreements; and
WHEREAS, the Parties now wish to amend the Master Repurchase Agreement as set
forth below.
AGREEMENT
receipt and sufficiency of which are hereby acknowledged, the Parties and,
solely for purposes of Section 5.3 hereof, Guarantor agree as follows:
1.Interpretation.
1.1 Definitions. All capitalized terms used but not defined in this Amendment
1 thereto).
1.2 Construction. The rules of construction set forth in Section 1.2 of the
Framework Agreement shall apply to this Amendment.
2.Amendments.
The definition of “Pricing Rate” in Section 2(b)(iv) of Annex I to the Master
Repurchase Agreement is hereby amended, effective from and after the date
hereof, by replacing the text “0.80%” where it appears therein with the text
“1.05%”.
This Amendment shall be effective as of the date hereof (the “Effective Date”)
upon the Buyer’s receipt of counterparts to this Amendment executed by each of
4. Representations, Warranties and Undertakings.
4.1 Sellers. In entering into this Amendment, the Seller hereby makes or repeats
(as applicable) to the Buyer as of the date hereof (or, to the extent expressly
relating to a specific prior date, as of such prior date) the representations
and warranties set forth in the Master Repurchase Agreement and each other
Transaction Agreement to which the Seller is a party, and such representations
and warranties shall be deemed to include this Amendment. The Seller further
represents that it has complied with all covenants and agreements applicable to
it under the Master Repurchase Agreement and each of the other Transaction
5. Miscellaneous.
5.1 Counterparts. This Amendment may be executed by the Parties on any number of
taken together will be deemed to constitute one and the same instrument;
will constitute an original for the purposes of this Section 5.1.
5.2 Ratification. Each of the other Transaction Agreements remains in full force
and effect. The Parties hereby acknowledge and agree that, effective from and
after the Effective Date, all references to the Master Repurchase Agreement in
any other Transaction Agreement shall be deemed to be references to the Amended
Master Repurchase Agreement, and any amendment in this Amendment of a defined
term in the Master Repurchase Agreement shall apply to terms in any other
Transaction Agreement which are defined by reference to the Master Repurchase
Agreement.
2
5.3 Guarantor Acknowledgment and Consent. Guarantor hereby acknowledges the
Parties’ entry into this Amendment and consents to the terms and conditions
hereof, it being understood that such terms and conditions may affect the extent
of the Guaranteed Obligations (as defined in the Guaranty) for which Guarantor
may be liable under the Guaranty. Guarantor further confirms and agrees that the
Guaranty remains in full force and effect after giving effect to this Amendment
and, for the avoidance of doubt, acknowledges that any amendment herein to a
defined term in the Master Repurchase Agreement shall apply to terms in the
Guaranty which are defined by reference to the Master Repurchase Agreement.
5.4 GOVERNING LAW. This AMENDMENT shall be governed by and construed in
conflicts of law provisions thereof other than sections 5-1401 and 5-1402 of the
5.5 Expenses. All reasonable legal fees and expenses of Buyer Agent and each
Buyer incurred in connection with the preparation, negotiation, execution and
delivery of this Amendment and each related document entered into in connection
herewith shall be paid by the Seller promptly on demand.
5.6 Transaction Agreement. This Amendment shall constitute a Transaction
Agreement.
3
first written above.
Buyer:
By:By: Name:Title:
4
Seller:
CHS Capital, LLC
By:
Name:
Title:
[Signature Page to Amendment No. 1 to CHS Capital Master Repurchase Agreement]
Solely for purposes of Section 5.3 hereof:
Guarantor:
CHS Inc.By:Name:Title:
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ITEMID: 001-78135
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: GRANDCHAMBER
DATE: 2006
DOCNAME: CASE OF JUSSILA v. FINLAND
IMPORTANCE: 1
JUDGES: Anatoly Kovler;Antonella Mularoni;Christos Rozakis;Dean Spielmann;Elisabet Fura;Ireneu Cabral Barreto;Ján Šikuta;Jean-Paul Costa;Josep Casadevall;Kristaq Traja;Loukis Loucaides;Lucius Caflisch;Matti Pellonpää;Mindia Ugrekhelidze;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Stefan Trechsel;Volodymyr Butkevych
TEXT: 8. The applicant was born in 1949 and lives in Tampere, Finland.
9. On 22 May 1998 the Häme Tax Office (verotoimisto, skattebyrån) requested the applicant, who ran a car-repair workshop, to submit his observations regarding some alleged errors in his value-added tax (VAT) declarations (arvonlisävero, mervärdesskatt) for fiscal years 1994 and 1995.
10. On 9 July 1998 the Tax Office found that there were deficiencies in the applicant’s book-keeping in that, for instance, receipts and invoices were inadequate. The Tax Office made a reassessment of the VAT payable basing itself on the applicant’s estimated income, which was higher than the income he had declared. It ordered him to pay, inter alia, tax surcharges (veronkorotus, skatteförhöjning) amounting to 10% of the reassessed tax liability (the additional tax surcharges levied on the applicant totalled 1,836 Finnish Marks, corresponding to 308.80 euros).
11. The applicant appealed to the Uusimaa County Administrative Court (lääninoikeus, länsrätten) (which later became the Helsinki Administrative Court (hallinto-oikeus, förvaltningsdomstolen)). He requested an oral hearing and that the tax inspector as well as an expert appointed by the applicant be heard as witnesses. On 1 February 2000 the Administrative Court took an interim decision inviting written observations from the tax inspector and after that an expert statement from an expert chosen by the applicant. The tax inspector submitted her statement of 13 February 2000 to the Administrative Court. The statement was further submitted to the applicant for his observations. On 25 April 2000 the applicant submitted his own observations on the tax inspector’s statement. The statement of the expert chosen by him was dated and submitted to the court on the same day.
12. On 13 June 2000 the Administrative Court held that an oral hearing was manifestly unnecessary in the matter because both parties had submitted all the necessary information in writing. It also rejected the applicant’s claims.
13. On 7 August 2000 the applicant requested leave to appeal, renewing at the same time his request for an oral hearing. On 13 March 2001 the Supreme Administrative Court refused him leave to appeal.
14. Section 177(1) of the Value-Added Tax Act (arvonlisäverolaki, mervärdesskattelagen; Law no. 1501/1993) provides that if a person liable to pay taxes has failed to pay the taxes or clearly paid an insufficient amount of taxes or failed to give required information to the tax authorities, the Regional Tax Office (verovirasto, skatteverket) must assess the amount of unpaid taxes.
15. Section 179 provides that a tax assessment may be conducted where a person has failed to make the required declarations or has given false information to the tax authorities. The taxpayer may be ordered to pay unpaid taxes or taxes that have been wrongly refunded to the person.
16. Section 182 provides, inter alia, that a maximum tax surcharge of 20% of the tax liability may be imposed if the person has without a justifiable reason failed to give a tax declaration or other document in due time or given essentially incomplete information. The tax surcharge may amount at most to twice the amount of the tax liability, if the person has without any justifiable reason failed to fulfil his or her duties fully or partially even after being expressly asked to provide information.
17. In, for example, the Finnish judicial reference book, Encyclopædia Iuridica Fennica, a tax surcharge is defined as an administrative sanction of a punitive nature imposed on the taxpayer for conduct contrary to tax law.
18. Under Finnish practice, the imposition of a tax surcharge does not prevent the bringing of criminal charges for the same conduct.
19. Section 38(1) of the Administrative Judicial Procedure Act (hallintolainkäyttölaki, förvaltningsprocesslagen; Law no. 586/1996) provides that an oral hearing must be held if requested by a private party. An oral hearing may however be dispensed with if a party’s request is ruled inadmissible or immediately dismissed, or if an oral hearing would be clearly unnecessary owing to the nature of the case or other circumstances.
20. The explanatory part of the Government Bill (no. 217/1995) for the enactment of the Administrative Judicial Procedure Act considers the right to an oral hearing as provided by Article 6 and the possibility in administrative matters to dispense with the hearing when it would be clearly unnecessary, as stated in section 38(1) of the said Act. There it is noted that an oral hearing contributes to a focused and immediate procedure but, since it does not always bring any added value, it must be ensured that the flexibility and cost effectiveness of the administrative procedure is not undermined. An oral hearing is to be held when it is necessary for the clarification of the issues and the hearing can be considered beneficial for the case as a whole.
21. During the period 2000 to 2006, the Supreme Administrative Court did not hold any oral hearings in tax matters. As to the eight administrative courts, appellants requested an oral hearing in a total of 603 cases. The courts held an oral hearing in 129 cases. There is no information as to how many of these taxation cases concerned the imposition of a tax surcharge. According to the Government’s written submission of 12 July 2006, the administrative courts had thus far in 2006 held a total of 20 oral hearings in tax matters. As regards the Helsinki Administrative Court in particular, in 2005 it examined a total of 10,669 cases of which 4,232 were tax matters. Out of the last-mentioned group of cases, 505 concerned VAT. During that year the Administrative Court held a total of 153 oral hearings of which three concerned VAT.
NON_VIOLATED_ARTICLES: 6
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Name: Council Implementing Decision (CFSP) 2018/417 of 16 March 2018 implementing Decision 2010/231/CFSP concerning restrictive measures against Somalia
Type: Decision_IMPL
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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):December 1, 2011 MORRIS PUBLISHING GROUP, LLC (Exact Name of Registrant as Specified in Its Charter) Georgia (State or other jurisdiction of incorporation) 333-112246 26-2569462 (Commission File Number) (IRS Employer Identification No.) 725 Broad Street; Augusta, Georgia (Address of Principal Executive Offices) (Zip Code) (706)724-0851 (Registrants’ Telephone Number, Including Area Code) 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 Rule425 under the Securities Act (17 CFR 230.425) ¨ Soliciting material pursuant to Rule14a-12 under the Exchange Act (17 CFR 240.14a-12) ¨ Pre-commencement communications pursuant to Rule14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) ¨ Pre-commencement communications pursuant to Rule13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) -1- Item 1.01 Entry into a Material Definitive Agreement. Agreement for Sale of Morris Publishing Group, LLC's Athens (Ga.) Banner-Herald News Building. On December 1, 2011, Morris Publishing Group, LLC ( "Morris Publishing") entered into an Agreement of Purchase and Sale (the "Agreement") with Lulscal, LLC, a Colorado limited liability company ("Buyer"), for the sale of Morris Publishing's newspaper building and real estate located at One Press Place, Athens, Georgia (the "Real Property"). The building is situated on approximately 3.1 acres. Morris Publishing will continue to publish its newspaper, the Athens Banner-Herald, following the sale. Under the Agreement, the Buyer will pay Morris Publishing $13,474,500, payable in cash, at closing (the “Purchase Price”). The Purchase Price will be increased by $3,333 per day until closing if Buyer does not complete the purchase by March 1, 2012. The Buyer is required to close on the Real Property no later than 150 days after the execution of the Agreement. Buyer has broad rights to inspect the Real Property and may terminate the Agreement for any reason within 120 days after the date of the Agreement. Morris Publishing will have the right to lease back the Real Property through December 31, 2012 and to terminate the Agreement if the terms of a lease are not agreed upon between the parties within 15 days of the date of the Agreement.For an initial rent period through and including the later of (1) 45 days after closing, or (2) March 31, 2012, the rent for the Real Property will be one dollar. After this initial rent period, Morris Publishing will have the right to rent the Real Property on a month-to-month basis. Morris Publishing may rent the first floor of the news building, constituting 28,204 square feet, at a monthly rental of $42,306 on a triple net basis. In addition, Morris Publishing may rent the industrial space on the ground floor and the metro level, constituting 43,212 square feet, for $28,808 per month on a triple net basis. -2- Waivers under Working Capital Line of Credit. On December 7, 2011, Morris Publishing received consents and/or waivers from CB&T, a division of Synovus Bank (the “Bank”), under the Loan and Line of Credit Agreement dated April 26, 2011 (the “Working Capital Facility”), permitting or consenting to: 1.The sale of the Real Property in Athens and the leaseback of such Real Property. 2. The sale and leaseback of Morris Publishing's newspaper building in Conway, Arkansas. Morris intends to sell such property for approximately $665,000. 3.The use of the Net Cash Proceeds (as defined in the Indenture for the New Notes discussed in Item 8.01 of this Form 8-K) from the sale of the Real Property in Athens to prepay any balances under the Working Capital Facility and to repurchase New Notes under the Indenture, without terminating the Working Capital Facility. 4.Morris Publishing's purchase of New Notes (on the open market or otherwise from note holders) so long as the outstanding balance on the Working Capital Facility immediately after the purchase of such New Notes does not exceed $3,000,000. Item 8.01 Other Events. Morris Publishing also states the following information in this Item 8.01. If consummated, the sale of the Real Property would constitute an "Asset Sale" as defined in Morris Publishing’s Indenture dated March 1, 2010 (the "Indenture") with respect toits $100 million aggregate principal amount of Floating Rate Secured Notes due 2014 (the “New Notes”). Under the Indenture, Morris Publishing is required to use the “Net Cash Proceeds” (after deducting certain expenses and taxes, as defined in the Indenture) from an Asset Sale to prepay any amounts outstanding under its Working Capital Facility and then to offer to repurchase New Notes from note holders on a pro rata basis at a purchase price of 101% of the face amount of the New Notes repurchased. The “Net Proceeds Offer” (as defined in the Indenture), must be mailed to holders of the New Notes within 25 days following the “Net Proceeds Offer Trigger Date” (as defined in the Indenture), which is 100 Business Days following receipt of the Net Cash Proceeds. The Indenture requires the repurchase to be consummated within 180 days of receipt of the Net Cash Proceeds from an Asset Sale. Morris Publishing expects to use the Net Cash Proceeds of the sale of the Real Property to repurchase New Notes in accordance with the Indenture. Management views this sale as an important step in Morris Publishing's efforts to repay and/or refinance all of the indebtedness represented by the New Notes. Morris Publishing will explore refinancing opportunities, subject to market conditions, with hopes to repay and/or refinance this indebtedness in 2012. On December 7, 2011, Morris Publishing issued a press release discussing the sale of the Athens, Georgia Real Property, a copy of which is furnished as Exhibit 99.1 to this Form 8-K. -3- Item 9.01 Financial Statements and Exhibits (d) Exhibits: ExhibitNo. Description Press release, dated December 7, 2011, announcing the sale of Morris Publishing's Athens, Georgia Real Property. 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. Date:December 7, 2011 MORRIS PUBLISHING GROUP, LLC By: /s/ Steve K. Stone Steve K. Stone Senior Vice President and Chief Financial Officer
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Exhibit 10.3
AMENDED AND RESTATED
OF
JEFFERSON FEDERAL BANK
1. Plan Purpose. The purpose of the Jefferson Federal Bank Employee Severance
Compensation Plan is to assure for Jefferson Federal Bank (the “Bank”) the
services of Eligible Employees of the Bank in the event of a Change in Control
(capitalized terms are defined in section 2 of this Plan) of Jefferson
Bancshares, Inc. (the “Holding Company”) or the Bank. The benefits contemplated
by the Plan recognize the value to the Bank of the services and contributions of
Eligible Employees of the Bank and the effect upon the Bank resulting from the
uncertainties of continued employment, reduced employee benefits, management
changes and relocations that may arise in the event of a Change in Control of
the Bank or the Company. The Board of Directors of the Bank believes that it is
in the best interests of the Bank and the Company to provide Eligible Employees
of the Bank and the Company with such benefits in order to defray the costs and
changes in employee status that could follow a Change in Control. The Board of
Directors of the Bank believes that the Plan will also aid the Bank in
attracting and retaining highly qualified individuals who are essential to its
success and the Plan’s assurance of fair treatment of the Bank’s Eligible
Employees will reduce the distractions and other adverse effects on Eligible
Employees’ performance in the event of a Change in Control. The Bank and the
Holding Company have amended and restated this Plan to conform with the
a. “Affiliate” means any corporation, trade or business, which, at the time of
b. “Bank” means Jefferson Federal Bank, or any successor thereto.
c. “Change in Control” means any one of the following events occurs:
(i)
majority of the combined voting power of the
1
consolidation;
(ii) Acquisition of Significant Share Ownership: a report on Schedule 13D or
voting securities;
(iii) Change in Board Composition: during any period of two consecutive years,
clause (iii) each director who is first elected by the board (or first nominated
(iv) Sale of Assets: Company sells to a third party all or substantially all
d. “Company” means Jefferson Bancshares, Inc. or any successor thereto.
e.
“Eligible Employee” means any Employee who, as of the effective date of the
Change in Control has or would have been employed by the Bank for at least one
year, and whose employment, within three months prior to a Change in Control, or
within one year thereafter is either (i) involuntarily terminated by the Company
or any Affiliate, other than for Just Cause, (ii) voluntarily terminated by an
Eligible Employee following (A) a relocation of an Eligible Employee’s principal
place of employment to a location that is more than thirty-five (35) miles from
its location immediately prior to the Change in Control, without his or her
consent or (B) a reduction in the base salary of the Eligible Employee from the
amount being paid as of the date immediately preceding the earlier of their
termination date (but only if it occurs within three months of the Change in
Control) or the effective
2
date of the Change in Control; or (iii) voluntarily terminated by an Eligible
Employee as a result of the failure to offer or employ the Eligible Employee in
a “comparable position.” For purposes of this Plan, a “comparable position”
shall mean a position which (A) requires skills and knowledge similar to those
required in the Eligible Employee’s position immediately prior to the Change in
Control and (B) involves a work schedule that is substantially similar to the
work schedule followed by the Eligible Employee immediately prior to the Change
in Control. A position shall not fail to be a comparable position solely as a
result of a change following a Change in Control in the Eligible Employee’s
(A) title, (B) supervisory authority or (C) reporting responsibilities.
f. “Employee” means any person who has been employed by the Company or any
Affiliate for at least 120 days, on a full-time salaried basis, immediately
prior to the Change in Control, excluding any person who is covered by an
employment contract, change in control or severance agreement with the Company
or any Affiliate.
g. “Just Cause,” with respect to termination of employment, means an act or
acts of personal dishonesty, incompetence, willful misconduct, breach of
or similar offenses) or final cease-and-desist order. In determining
incompetence, acts or omissions shall be measured against standards generally
prevailing in the banking industry, as determined by the Board of Directors of
the Bank or the Company in its sole discretion.
h. “Year of Service” means each consecutive 12 month period, beginning with an
employee’s date of hire and running without a termination of employment in which
an employee is credited with at least one hour of service in each of the 12
calendar months in such period. The taking of an leave of absence shall not
eliminate a period of time from being a Year of Service if such period of time
otherwise qualifies as such. Further if a particular 12 month period of time
would not otherwise qualify under the Plan as a Year of Service because one hour
of service is not credited during each month of such period due to the taking of
a leave of absence, then such period of time shall be deemed to be a Year of
Service for all other sections of this Plan. For purposes of determining a
severance benefit under this Plan, partial years will be rounded up to the
nearest whole Year of Service.
3
3. Severance Benefit to Eligible Employees.
a. Each Eligible Employee shall be entitled to receive a severance benefit
equal to one (1) month’s base pay for each Year of Service with the Bank or the
Company. Notwithstanding the foregoing, an Eligible Employee shall be entitled
to a minimum severance benefit equal to one (1) month base pay and a maximum
severance benefit equal to twelve (12) month’s base pay. For purposes of this
Plan, “base pay” shall mean 1/12th of an Eligible Employee’s monthly average
cash compensation during the twelve (12) months preceding the Eligible
b. All severance payments shall be made in a single lump sum payment, without
discount, payable within 10 days of termination of employment.
c. Notwithstanding the provisions of paragraph (a) above, if a severance
benefit payment to an Eligible Employee who is a “Disqualified Individual” shall
be in an amount which includes an “Excess Parachute Payment,” when taken
together with any other payments or benefits that are paid or provided to the
Eligible Employee, the payment to that Eligible Employee shall be reduced to the
maximum amount which does not include an Excess Parachute Payment. The terms
“Disqualified Individual” and “Excess Parachute Payment” shall have the same
meanings as defined in Section 280G of the Internal Revenue Code of 1986, as
amended, or any successor provision thereto.
d. The Eligible Employee shall not be required to mitigate damages on the
amount of their severance benefits by seeking other employment or otherwise, nor
shall the amount of such severance benefit be reduced by any compensation earned
by the Eligible Employee as a result of employment after termination of
employment hereunder.
4. Written Acknowledgment. As a condition to receiving any payments pursuant to
paragraph 3 of this Plan, the Eligible Employee shall deliver to the Company or
any applicable Affiliate on the date of his or her employment termination a
written Acknowledgment signed by the Eligible Employee stating (i) that the
severance payment to be made to the Eligible Employee pursuant to paragraph 3
above is in full and complete satisfaction of all liabilities and obligations of
the Company and its Affiliates, directors, officers, employees and agents,
except for any tax-qualified plan benefits that may be due and owing and except
for any liabilities or obligations that may be required by law, and (ii) that
the Company or any Affiliate shall not have any other liabilities or obligation
to the Eligible Employee relating to the Eligible Employee’s employment by the
4
5. Legal Fees and Expenses. All reasonable legal fees and other expenses paid or
incurred by a party hereto pursuant to any dispute or question of interpretation
relating to this Plan shall be paid or reimbursed by the prevailing party in any
a. The Company or any of its Affiliates may terminate an employee’s employment
at any time, but any termination by the Company or any of its Affiliates, other
than termination for Just Cause, shall not prejudice employee’s right to
compensation under this Plan. Employee shall not have the right to receive
compensation for any period after termination for Just Cause as defined in
Section 2(g) of this Plan.
b. If an Employee is suspended and/or temporarily prohibited from
Employee all or part of the compensation withheld while their contract
c. If an employee is removed and/or permanently prohibited from participating
not be affected.
e. Any payments made to an Eligible Employee pursuant to this Plan, or
5
7. Administrative Provisions.
a. The administrator of the Plan shall be under the supervision of the Board
of Directors of the Bank or a committee appointed by the Board of Directors of
the Bank (the “Board”). It shall be a principal duty of the Board to see that
the Plan is carried out in accordance with its terms, for the exclusive benefit
of persons entitled to participate in the Plan without discrimination among
them. The Board will have full power to administer the Plan in all of its
details subject, however, to the requirements of ERISA. For this purpose, the
Board’s powers will include, but will not be limited to, the following
authority, in addition to all other powers provided by this Plan: (i) to make
and enforce such rules and regulations as it deems necessary or proper for the
efficient administration of the Plan; (ii) to interpret the Plan, its
interpretation thereof in good faith to be final and conclusive on all persons
claiming benefits under the Plan; (iii) to decide all questions concerning the
Plan and the eligibility of any person to participate in the Plan; (iv) to
compute the amount of severance benefits payable to any Eligible Employee or
other person in accordance with the provisions of the Plan, and to determine the
person or persons to whom such benefits will be paid; (v) to authorize severance
benefits; (vi) to appoint such agents, counsel, accountants, consultants and
actuaries as may be required to assist in administering the Plan; and (vii) to
allocate and delegate its responsibilities under the Plan and to designate other
allocation, delegation or designation to be by written instrument and in
accordance with Section 405 of ERISA, if applicable.
b. The Board will be a “named fiduciary” for purposes of Section 402(a)(1) of
ERISA with authority to control and manage the operation and administration of
the Plan, and will be responsible for complying with all of the reporting and
8. Claims and Review Procedures.
a.
such person may file a claim in writing with the Board. If any such claim is
wholly or partially denied, the Board will notify such person of its decision in
claim and an explanation of why such material
6
or information is necessary and (iv) information as to the steps to be taken if
the person wishes to submit a request for review. Such notification will be
given within 90 days after the claim is received by the Board (or within 180
b. Within 60 days after the date on which a person receives a written notice
such denial is considered to have occurred) such person (or his duly authorized
representative) may (i) file a written request with the Board for a review of
comments to the Board. The Board will notify such person of its decision in
well as specific references to pertinent Plan provisions. The decision on review
Board (or within 120 days, if special circumstances require an extension of time
for processing the requests such as an election by the Board to hold a hearing,
person within the initial 60 day period). If the decision on review is not made
9. Governing Law. Unless preempted by federal law, this plan shall be governed
10. Termination or Amendment. This plan may be amended or terminated at any
time, in the full discretion of the Board of Directors of the Bank, prior to the
Change in Control. This plan may not be terminated or amended at the time of or
If when termination of employment occurs an employee is a “specified employee”
(within the meaning of Section 409A of the Code), and if the cash severance
payment under paragraph E. would be considered deferred compensation under
employee’s severance benefit shall be paid to the employee in a single lump sum,
without interest, on the first payroll date of the seventh month after the month
in which the employee’s employment
7
terminates, provided the termination of employment constitutes a “separation
from service” under Section 409A of the Code. References in this Plan to
Code.
This plan, as amended and restated, has been approved and adopted by the Board
of Directors of the Bank as of December 18, 2008.
ATTEST: JEFFERSON FEDERAL BANK
By:
/s/ John F. McCrary, Jr.
8 |
UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM N-CSRS CERTIFIED SHAREHOLDER REPORT OF REGISTERED MANAGEMENT INVESTMENT COMPANIES Investment Company Act file number_ 811-03193 _ Franklin Tax-Exempt Money Fund (Exact name of registrant as specified in charter) _ One Franklin Parkway, San Mateo, CA 94403-1906 (Address of principal executive offices) (Zip code) Craig S. Tyle, One Franklin Parkway, San Mateo, CA 94403-1906 (Name and address of agent for service) Registrant's telephone number, including area code:( 650) 312-2000 Date of fiscal year end: 7/31 Date of reporting period: 1/31/11 Item 1. Reports to Stockholders. | 1 Semiannual Report Franklin Tax-Exempt Money Fund Your Fund’s Goal and Main Investments: Franklin Tax-Exempt Money Fund seeks to provide as high a level of income exempt from federal income taxes as is consistent with prudent investment management and preservation of capital. 1 The Fund invests at least 80% of its total assets in high-quality, short-term municipal securities free from federal income taxes, including the federal alternative minimum tax, as it seeks to maintain a stable $1.00 share price. Performance data represent past performance, which does not guarantee future results. Investment return will fluctuate. Current performance may differ from figures shown. Please visit franklintempleton.com or call (800) 342-5236 for most recent month-end performance. An investment in the Fund is not insured or guaranteed by the Federal Deposit Insurance Corporation or any other government agency or institution. Although the Fund seeks to preserve the value of your investment at $1.00 per share, it is possible to lose money by investing in the Fund. This semiannual report for Franklin Tax-Exempt Money Fund covers the period ended January 31, 2011. Performance Overview Short-term interest rates remained historically low during the period under review, and Franklin Tax-Exempt Money Fund’s seven-day effective yield was unchanged at 0.00% from July 31, 2010, through January 31, 2011. Economic and Market Overview The U.S. economy expanded during the six-month reporting period largely due to rising exports, shrinking imports, and greater consumer and business spending. The nation’s economic activity as measured by gross domestic product registered annualized growth rates of 2.6% and 2.8% in the third and fourth quarters of 2010. The job market remained sluggish, however, and the unemployment rate was 9.0% in January. 2 Remaining challenges to sustained economic recovery included elevated debt concerns and a struggling housing sector. Crude oil prices began the reporting period at $79 per barrel, but fell to a six-month low of $71 in August due to slumping stock prices, reduced demand and abundant inventory levels. Prices quickly rallied after receiving a boost from the falling U.S. dollar and positive economic data, and reached a six-month high 1. For investors subject to alternative minimum tax, a small portion of Fund dividends may be taxable. Distributions of capital gains are generally taxable. To avoid imposition of 28% backup withholding on all Fund distributions and redemption proceeds, U.S. investors must be properly certified on Form W-9 and non-U.S. investors on Form W-8BEN. 2. Source: Bureau of Labor Statistics. The dollar value, number of shares or principal amount, and names of all portfolio holdings are listed in the Fund’s Statement of Investments (SOI). The SOI begins on page 9. Semiannual Report | 3 of $92 at period-end. The pace of inflation slowed during much of the period, and Januarys inflation rate was an annualized 1.6%. 2 Similarly, core inflation, which excludes food and energy costs, was an annualized 1.0% rate. 2 Early in the period, consumers were concerned about disappointing employment numbers, a plunge in home sales spurred by the expiration of a homebuyer tax credit, and fears of a renewed economic slowdown. On several occasions, the Federal Reserve Board (Fed) reiterated it would maintain the federal funds target rate within a range of 0% to 0.25% for an extended period. In November, concerned about the slowing pace of recovery as well as inflation, which had dipped to a level below its mandate to foster maximum employment and price stability, the Fed said it intended to buy $600 billion of government debt in an effort to correct these conditions. Investor concerns about weak economic data and the potential spillover effects of the European debt crisis led to market volatility. At times, wary investors favored short-term Treasuries, and Treasury yields dipped to very low levels for much of the period. Late in the period, encouraging corporate earnings reports, the prospect of Fed intervention and extension of Bush-era tax cuts boosted investor confidence and fueled an equity market rally, which dampened Treasury prices. For the six-month period under review, Treasury prices fell and yields rose, reflecting general investor optimism. The two-year Treasury note yield began the period at 0.55% and ended at 0.58%, while the 10-year Treasury note yield rose from 2.94% to 3.42%. Investment Strategy We invest predominantly in high-quality, short-term municipal securities. Although the Fund tries to invest all of its assets in tax-free securities, it is possible, although not anticipated, that up to 20% of its assets may be in securities that pay taxable interest, including interest that may be subject to federal alternative minimum tax. We maintain a dollar-weighted average portfolio maturity of 60 days or less and a dollar-weighted average life of 120 days or less. 4 | Semiannual Report Manager’s Discussion During the reporting period, the Federal Open Market Committee maintained the federal funds target rate in a range of 0% to 0.25% and the discount rate at 0.75%. In addition, the Securities Industry and Financial Markets Association (SIFMA) Municipal Swap Index, a weekly index of variable rate securities, which make up a large portion of Franklin Tax-Exempt Money Fund, remained relatively low. The SIFMA Index had a high rate during the period of 0.34% near the end of December 2010 and a low in early January 2011 of 0.23%. 3 At period-end, the rate was 0.29%. 3 Issuance of variable rate demand notes was extremely low compared to recent years, and demand for well-structured notes supported their low rates. We continued to be very selective in purchasing high-quality securities, which resulted in a 0.00% yield throughout the period. Thank you for your continued participation in Franklin Tax-Exempt Money Fund. We look forward to serving your future investment needs. The foregoing information reflects our analysis, opinions and portfolio holdings as of January 31, 2011, the end of the reporting period. The way we implement our main investment strategies and the resulting portfolio holdings may change depending on factors such as market and economic conditions. These opinions may not be relied upon as investment advice or an offer for a particular security. The information is not a complete analysis of every aspect of any market, country, industry, security or the Fund. Statements of fact are from sources considered reliable, but the investment manager makes no representation or warranty as to their completeness or accuracy. Although historical performance is no guarantee of future results, these insights may help you understand our investment management philosophy. 3. Source: Thomson Financial. 1. Seven-day effective yield assumes the compounding of daily dividends, if any. 2. Taxable equivalent yield assumes the 2011 maximum regular federal income tax rate of 35.00%. 3. The figure is as stated in the Fund’s prospectus current as of the date of this report. In periods of market volatility, assets may decline significantly, causing total annual Fund operating expenses to become higher than the figure shown. In efforts to prevent a negative yield, the investment manager, Fund administrator and Fund distributor have voluntarily agreed to waive or limit their respective fees, assume as their own expense certain expenses otherwise payable by the Fund, and if necessary, make a capital infusion into the Fund. These waivers, expense reimbursements and capital infusions, which are not reflected in the table above, are voluntary and may be modified or discontinued by the investment manager, Fund administrator or Fund distributor at any time, and without further notice. There is no guarantee the Fund will be able to avoid a negative yield. Annualized and effective yields are for the seven-day period ended 1/31/11. The Fund’s average weighted life and average weighted maturity were each 16 days. Yields reflect Fund expenses and fluctuations in interest rates on portfolio investments. Performance data represent past performance, which does not guarantee future results. Investment return will fluctuate. Current performance may differ from figures shown. Please go to franklintempleton.com or call (800) 342-5236 for most recent month-end performance. Semiannual Report | 5 Your Funds Expenses As a Fund shareholder, you can incur two types of costs: Transaction costs, including sales charges (loads) on Fund purchases; and Ongoing Fund costs, including management fees, distribution and service (12b-1) fees, and other Fund expenses. All mutual funds have ongoing costs, sometimes referred to as operating expenses. The following table shows ongoing costs of investing in the Fund and can help you understand these costs and compare them with those of other mutual funds. The table assumes a $1,000 investment held for the six months indicated. Actual Fund Expenses The first line (Actual) of the table provides actual account values and expenses. The Ending Account Value is derived from the Funds actual return, which includes the effect of Fund expenses. You can estimate the expenses you paid during the period by following these steps. Of course, your account value and expenses will differ from those in this illustration: 1. Divide your account value by $1,000. If an account had an $8,600 value, then $8,600 ÷ $1,000 8.6. 2. Multiply the result by the number under the heading Expenses Paid During Period. If Expenses Paid During Period were $7.50, then 8.6 x $7.50 $64.50. In this illustration, the estimated expenses paid this period are $64.50. Hypothetical Example for Comparison with Other Funds Information in the second line (Hypothetical) of the table can help you compare ongoing costs of investing in the Fund with those of other mutual funds. This information may not be used to estimate the actual ending account balance or expenses you paid during the period. The hypothetical Ending Account Value is based on the Funds actual expense ratio and an assumed 5% annual rate of return before expenses, which does not represent the Funds actual return. The figure under the heading Expenses Paid During Period shows the hypothetical expenses your account would have incurred under this scenario. You can compare this figure with the 5% hypothetical examples that appear in shareholder reports of other funds. 6 | Semiannual Report Your Funds Expenses (continued) Please note that expenses shown in the table are meant to highlight ongoing costs and do not reflect any transaction costs, such as sales charges. Therefore, the second line of the table is useful in comparing ongoing costs only, and will not help you compare total costs of owning different funds. In addition, if transaction costs were included, your total costs would have been higher. Please refer to the Fund prospectus for additional information on operating expenses. *Expenses are calculated using the most recent six-month annualized expense ratio, net of voluntary expense waivers, of 0.26%, multiplied by the average account value over the period, multiplied by 184/365 to reflect the one-half year period. Semiannual Report | 7 Franklin Tax-Exempt Money Fund Statement of Investments, January 31, 2011 (unaudited) Franklin Tax-Exempt Money Fund Statement of Investments, January 31, 2011 (unaudited) (continued) 10 | Semiannual Report Franklin Tax-Exempt Money Fund Statement of Investments, January 31, 2011 (unaudited) (continued) Semiannual Report | 11 Franklin Tax-Exempt Money Fund Statement of Investments, January 31, 2011 (unaudited) (continued) a Variable rate demand notes (VRDNs) are tax-exempt obligations which contain a floating or variable interest rate adjustment formula and an unconditional right of demand to receive payment of the principal balance plus accrued interest at specified dates. The coupon rate shown represents the rate at period end. 12 | The accompanying notes are an integral part of these financial statements. | Semiannual Report Semiannual Report | The accompanying notes are an integral part of these financial statements. | 13 14 | The accompanying notes are an integral part of these financial statements. | Semiannual Report Semiannual Report | The accompanying notes are an integral part of these financial statements. | 15 Franklin Tax-Exempt Money Fund Notes to Financial Statements (unaudited) 1. O RGANIZATION AND S IGNIFICANT A CCOUNTING P OLICIES Franklin Tax-Exempt Money Fund (Fund) is registered under the Investment Company Act of 1940, as amended, (1940 Act) as an open-end investment company. The following summarizes the Funds significant accounting policies. a. Financial Instrument Valuation Securities are valued at amortized cost, which approximates market value. Amortized cost is an income-based approach which involves valuing an instrument at its cost and thereafter assuming a constant amortization to maturity of any discount or premium. b. Income Taxes It is the Funds policy to qualify as a regulated investment company under the Internal Revenue Code. The Fund intends to distribute to shareholders substantially all of its income and net realized gains to relieve it from federal income and excise taxes. As a result, no provision for U.S. federal income taxes is required. The Fund files U.S. income tax returns as well as tax returns in certain other jurisdictions. The Funds application of those tax rules is subject to its understanding. The Fund records a provision for taxes in its financial statements including penalties and interest, if any, for a tax position taken on a tax return (or expected to be taken) when it fails to meet the more likely than not (a greater than 50% probability) threshold and based on the technical merits, the tax position may not be sustained upon examination by the tax authorities. As of January 31, 2011, and for all open tax years, the Fund has determined that no provision for income tax is required in the Funds financial statements. Open tax years are those that remain subject to examination and are based on each tax jurisdiction statute of limitation. The Fund is not aware of any tax position for which it is reasonably possible that the total amounts of unrecognized tax effects will significantly change in the next twelve months. c. Security Transactions, Investment Income, Expenses and Distributions Security transactions are accounted for on trade date. Realized gains and losses on security transactions are determined on a specific identification basis. Interest income and estimated expenses are accrued daily. Amortization of premium and accretion of discount on debt securities are included in interest income. Dividends from net investment income are normally declared daily; these dividends may be reinvested or paid monthly to shareholders. Distributions to shareholders are determined according to income tax regulations (tax basis). Distributable earnings determined on a tax basis may differ from earnings recorded in accordance with accounting principles generally accepted in the United States of America. These differences may be permanent or temporary. Permanent differences are reclassified among capital accounts to reflect their tax character. These reclassifications have no impact on net assets or the results of operations. Temporary differences are not reclassified, as they may reverse in subsequent periods. 16 | Semiannual Report Franklin Tax-Exempt Money Fund Notes to Financial Statements (unaudited) (continued) 1. O RGANIZATION AND S IGNIFICANT A CCOUNTING P OLICIES (continued) d. Accounting Estimates The preparation of financial statements in accordance with accounting principles generally accepted in the United States of America requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities at the date of the financial statements and the amounts of income and expenses during the reporting period. Actual results could differ from those estimates. e. Guarantees and Indemnifications Under the Funds organizational documents, its officers and trustees are indemnified by the Fund against certain liabilities arising out of the performance of their duties to the Fund. Additionally, in the normal course of business, the Fund enters into contracts with service providers that contain general indemnification clauses. The Funds maximum exposure under these arrangements is unknown as this would involve future claims that may be made against the Fund that have not yet occurred. Currently, the Fund expects the risk of loss to be remote. 2. S HARES OF B ENEFICIAL I NTEREST At January 31, 2011, there were an unlimited number of shares authorized (without par value). Transactions in the Funds shares at $1.00 per share were as follows: 3. T RANSACTIONS WITH A FFILIATES Franklin Resources, Inc. is the holding company for various subsidiaries that together are referred to as Franklin Templeton Investments. Certain officers and trustees of the Fund are also officers and/or directors of the following subsidiaries: Semiannual Report | 17 Franklin Tax-Exempt Money Fund Notes to Financial Statements (unaudited) (continued) 3. T RANSACTIONS WITH A FFILIATES (continued) a. Management Fees The Fund pays an investment management fee to Advisers based on the average daily net assets of the Fund as follows: b. Administrative Fees Under an agreement with Advisers, FT Services provides administrative services to the Fund. The fee is paid by Advisers based on average daily net assets, and is not an additional expense of the Fund. c. Sales Charges/Underwriting Agreements Distributors has advised the Fund of the following commission transactions related to the sales and redemptions of the Funds shares for the period: Contingent deferred sales charges retained $17,149 d. Transfer Agent Fees For the period ended January 31, 2011, the Fund paid transfer agent fees of $70,140, of which $44,673 was retained by Investor Services. e. Waiver and Expense Reimbursements In efforts to prevent a negative yield, Advisers has voluntarily agreed to waive or limit its fees, assume as its own expense certain expenses otherwise payable by the Fund and if necessary, make a capital infusion into the Fund. These waivers, expense reimbursements and capital infusions are voluntary and may be modified or discontinued by Advisers at any time, and without further notice. There is no guarantee that the Fund will be able to avoid a negative yield. 18 | Semiannual Report Franklin Tax-Exempt Money Fund Notes to Financial Statements (unaudited) (continued) 4. I NCOME T AXES For tax purposes, capital losses may be carried over to offset future capital gains, if any. At July 31, 2010, the capital loss carryforwards were as follows: At January 31, 2011, the cost of investments for book and income tax purposes was the same. 5. F AIR V ALUE M EASUREMENTS The Fund follows a fair value hierarchy that distinguishes between market data obtained from independent sources (observable inputs) and the Funds own market assumptions (unobservable inputs). These inputs are used in determining the value of the Funds investments and are summarized in the following fair value hierarchy: Level 1 quoted prices in active markets for identical securities Level 2 other significant observable inputs (including quoted prices for similar securities, interest rates, prepayment speed, credit risk, etc.) Level 3 significant unobservable inputs (including the Funds own assumptions in determining the fair value of investments) The inputs or methodology used for valuing securities are not an indication of the risk associated with investing in those securities. Money market securities may be valued using amortized cost, in accordance with the 1940 Act. Generally, amortized cost reflects the current fair value of a security, but since the value is not obtained from a quoted price in an active market, such securities are reflected as a Level 2. For movements between the levels within the fair value hierarchy, the Fund has adopted a policy of recognizing the transfers as of the date of the underlying event which caused the movement. At January 31, 2011, all of the Funds investments in securities carried at fair value were in Level 2 inputs. Semiannual Report | 19 Franklin Tax-Exempt Money Fund Notes to Financial Statements (unaudited) (continued) 6. S UBSEQUENT E VENTS The Fund has evaluated subsequent events through the issuance of the financial statements and determined that no events have occurred that require disclosure. ABBREVIATIONS Selected Portfolio 20 | Semiannual Report Franklin Tax-Exempt Money Fund Shareholder Information Proxy Voting Policies and Procedures The Funds investment manager has established Proxy Voting Policies and Procedures (Policies) that the Fund uses to determine how to vote proxies relating to portfolio securities. Shareholders may view the Funds complete Policies online at franklintempleton.com. Alternatively, shareholders may request copies of the Policies free of charge by calling the Proxy Group collect at (954) 527-7678 or by sending a written request to: Franklin Templeton Companies, LLC, 500 East Broward Boulevard, Suite 1500, Fort Lauderdale, FL 33394, Attention: Proxy Group. Copies of the Funds proxy voting records are also made available online at franklintempleton.com and posted on the U.S. Securities and Exchange Commissions website at sec.gov and reflect the most recent 12-month period ended June 30. Quarterly Statement of Investments The Fund files a complete statement of investments with the U.S. Securities and Exchange Commission for the first and third quarters for each fiscal year on Form N-Q. Shareholders may view the filed Form N-Q by visiting the Commissions website at sec.gov. The filed form may also be viewed and copied at the Commissions Public Reference Room in Washington, DC. Information regarding the operations of the Public Reference Room may be obtained by calling (800) SEC-0330. Semiannual Report | 21 This page intentionally left blank. This page intentionally left blank. This page intentionally left blank. Item 2. Code of Ethics. (a) The Registrant has adopted a code of ethics that applies to its principal executive officers and principal financial and accounting officer. (c) N/A (d) N/A (f) Pursuant to Item 12(a)(1), the Registrant is attaching as an exhibit a copy of its code of ethics that applies to its principal executive officers and principal financial and accounting officer. Item 3. Audit Committee Financial Expert. (a)(1) The Registrant has an audit committee financial expert serving on its audit committee. The audit committee financial expert is John B. Wilson and he is "independent" as defined under the relevant Securities and Exchange Commission Rules and Releases. Item 4. Principal Accountant Fees and Services.
|
[exhibit104_azusoffer001.jpg]
Exhibit 10.4 Ryan Azus VIA EMAIL Re: Employment Terms Dear Ryan: I am pleased to
offer you employment with Zoom Video Communications, Inc. (“Zoom”), on the terms
set forth in this offer letter agreement: 2. Position. You will serve as Chief
Revenue Officer, and you will report to Eric Yuan, CEO. This is a full-time
exempt position. While you render services to Zoom, you will not engage in any
part-time) that would create a conflict of interest with Zoom. By signing this
letter agreement, you confirm that you have no contractual commitments or other
legal obligations that would prohibit you from performing your duties for Zoom.
Your anticipated start date with Zoom is August 5, 2019 (such actual start date,
the “Start Date”). 2. Cash Compensation. Zoom will pay you a salary at the rate
of $425,000 per year, payable in accordance with Zoom’s standard payroll
schedule. You will also be eligible to earn and receive incentive compensation
in the total target amount per year of 100% of your annual salary rate, pursuant
to the terms and conditions of applicable Zoom incentive compensation plan(s),
which may be paid annually or quarterly or quarterly as determined by Zoom
consistent with such plan(s). The amount of the incentive compensation, if any,
that you earn will be determined based on Zoom’s performance and meeting
performance targets established by Zoom pursuant to Zoom’s applicable incentive
compensation plan(s), and will be pro-rated for your services to Zoom during the
applicable performance period. No amount of any incentive compensation is
guaranteed and you must satisfy any and all conditions established by Zoom for
such incentive compensation program to earn and be eligible for payment of
incentive compensation. Not withstanding this, for the first three (3) months of
your employment (“Draw Period”) and based on you working through this period,
you will be provided a non-recoverable draw of 100% of your monthly variable
target commissions, less applicable taxes, deductions and withholdings. The
monthly draw will equate to 1/12 of your annual target variable as indicated in
this offer letter. During the Draw Period, you will be paid the greater of your
earned commissions or the draw in a given month. 3. Employee Benefits. As a
regular Zoom employee, you will be eligible to participate in a number of
company-sponsored benefits offered to employees from time to time, subject to
the terms and conditions of the applicable plans and policies. 204155783 v4
[exhibit104_azusoffer002.jpg]
4. Equity and Change in Control Severance Benefits. Subject to the approval of
the Compensation Committee of the Board of Directors of Zoom, you will be
granted a restricted stock unit award to be issued 350,000 shares of Zoom’s
Class A common stock (“RSUs”) under and subject to the terms of the Company’s
2019 Equity Incentive Plan (the “Equity Plan”) and a restricted stock unit award
agreement thereunder. The RSUs will be granted to you following your Start Date
in accordance with Zoom’s policy for the timing of RSU awards. 25% of the RSUs
shall vest on the one (1) year anniversary of the grant date, and an additional
6.25% of the RSUs shall vest each quarter thereafter, subject to you remaining
in Continuous Service (as defined in the Equity Plan) through each such date.
Should (1) Zoom be subject to a Change in Control during your Continuous Service
(as defined in the Equity Plan) and (2) you be subject to an Involuntary
Termination upon or within one year following the effective date of such Change
in Control (such events in (1) and (2), the “CIC Termination”), then Zoom will
accelerate the vesting of any then-outstanding RSUs and any other
then-outstanding subsequent equity compensation awards granted to you under the
Equity Plan or a successor plan thereto prior to the date of such CIC
Termination (“Subsequent Awards”) such that 100% of your then-outstanding RSUs
and Subsequent Awards (if applicable) will be deemed immediately vested and
exercisable (as applicable) as of your Involuntary Termination date. In
addition, should a CIC Termination occur, you will receive as severance
benefits: (a) A lump sum cash payment equal to six months of your then-current
base salary, ignoring any decrease in base salary that would form the basis for
your right to Resignation for Good Reason, if any, paid in a lump sum no later
than the earliest of (i) 30 days following the effective date of the Release and
(ii) March 15 of the year following the year in which your CIC Termination
occurs. (b) if you timely elect continued coverage under the Consolidated
Omnibus Budget Reconciliation Act of 1985 (“COBRA”), Zoom will pay your COBRA
dependents, if applicable) through the end of the six-month period following
your CIC Termination (the “COBRA Premium Period”); provided, however, that the
payment of such COBRA premiums will immediately cease if during the COBRA
Premium Period you become eligible for group health insurance coverage through a
new employer or you cease to be eligible for COBRA continuation coverage for any
during the COBRA Premium Period, you must immediately notify Zoom of such event.
Notwithstanding the foregoing, if Zoom determines, in its sole discretion, that
of the Public Health Service Act), regardless of whether you or your dependents
elect or are eligible for COBRA coverage, Zoom will instead shall pay to you, on
the first day of each calendar month during the COBRA Premium Period, a fully
taxable cash payment equal to the 204155783 v4
[exhibit104_azusoffer003.jpg]
applicable COBRA premiums for that month, subject to required payroll deductions
Cash Payments toward the cost of COBRA. For purposes of this Section 4(b), (i)
state law and (ii) any applicable insurance premiums that are paid by Zoom shall
not include any amounts payable by you under an Internal Revenue Code Section
125 health care reimbursement plan, which amounts, if any, are your sole
responsibility. The receipt of any cash and COBRA premium benefits provided in
this Section 4 is subject to (i) your continued compliance with the terms of
this and your other agreements with Zoom, and (ii) you timely executing, and
delivering to Zoom a general release of claims in such form as provided by Zoom
to you on or prior to the date of your CIC Termination (the “Release”) within
the time period set forth therein, and not revoking such Release so that it
becomes effective within the time period specified therein, but no later than 60
days following your CIC Termination. The form of required Release will be
consistent with the terms of this letter and impose no material obligations on
you other than a general release of claims and mutual non- disparagement. For
purposes of this offer letter agreement, the following definitions shall apply:
● “Cause” means your: (a) unauthorized use or disclosure of Zoom’s confidential
information or trade secrets, which use or disclosure causes or could cause
material harm to Zoom, (b) material breach of any agreement between you and
Zoom, (c) material failure to comply with Zoom’s written policies or rules, (d)
of the United States or any State, (e) gross negligence or willful misconduct,
(f) willful and continuing failure to perform assigned duties after receiving
written notification of the failure from Zoom’s Board of Directors, or (g)
of Zoom or its directors, officers or employees, if Zoom has requested your
cooperation. ● “Change in Control” means: (a) the consummation of a merger or
consolidation of Zoom with or into another entity, or any corporate
reorganization in which the stockholders of Zoom immediately prior to such
merger, consolidation or reorganization own less than fifty percent (50%) of the
merger or reorganization, (b) a sale or other disposition of all or
substantially all of the assets of Zoom, or (c) the dissolution, liquidation or
winding up of Zoom. The foregoing notwithstanding, a Change of Control shall not
include any transaction or series of transactions principally for bona fide
equity financing purposes in which cash is received by Zoom or indebtedness of
Zoom is cancelled or converted or a combination thereof. ● “Involuntary
Termination” means either (a) your Termination Without Cause or (b) your
Resignation for Good Reason. 204155783 v4
[exhibit104_azusoffer004.jpg]
● “Resignation for Good Reason” means a Separation from Zoom as a result of your
resignation within 12 months after one of the following conditions has come into
existence without your consent: o A reduction in your base salary by more than
5%; o Any material breach by Zoom of any material written agreement between you
and Zoom; provided, that, the foregoing shall not include (i) any agreement that
is among Zoom, you and any third party or parties or (ii) Zoom’s written
policies or rules; o A material diminution of your authority, duties or
responsibilities (provided, however, that a change in job position, including a
change in title, shall not be deemed a “material diminution” in and of itself
unless your new duties are materially reduced from the prior duties); or o A
relocation of your principal workplace to a place that increases your one-way
commute by more than 40 miles as compared to your then-current principal
workplace immediately prior to such relocation. A Resignation for Good Reason
will not be deemed to have occurred unless you give Zoom written notice of the
condition setting forth the basis for your resignation within 90 days after the
condition comes into existence and Zoom fails to remedy the condition within 30
days after receiving your written notice. ● “Separation” means a “separation
from service,” as defined in the regulations under Section 409A of the Code. ●
your employment by Zoom without Cause (and other than as a result of your death
or disability), provided you are willing and able to continue performing
services within the meaning of Treasury Regulation 1.409A-1(n)(1). References in
this Section to Zoom shall refer to any successor entity to Zoom following a
Change in Control. 5. Employment Relationship. Employment with Zoom is for no
specific period of time. Your employment with Zoom will be “at will,” meaning
that either you or Zoom may terminate your employment at any time and for any
reason, with or without Cause or advance notice. Any contrary representations
that may have been made to you are superseded by this letter agreement. This is
the full and complete agreement between you and Zoom on this term. Although your
job duties, title, work location, compensation and benefits, as well as Zoom’s
personnel policies and procedures (which you are expected to abide by), may
officer of Zoom (other than you). 6. Taxes. All forms of compensation referred
to in this letter agreement are subject to reduction to reflect applicable
withholding and payroll taxes and other deductions. You agree that Zoom does not
have a duty to design its compensation policies in a manner that minimizes your
tax 204155783 v4
[exhibit104_azusoffer005.jpg]
liabilities, and you will not make any claim against Zoom or its Board of
Directors related to tax liabilities arising from your compensation. 7. Section
409A. It is intended that all of the benefits and other payments payable under
this letter agreement satisfy, to the greatest extent possible, an exemption
amended (the “Code”) and the treasury regulations thereunder and any state law
of similar effect (collectively, “Section 409A”), and this letter agreement will
provisions, and to the extent no so exempt, this letter agreement (and any
the severance benefits under this letter agreement are intended to satisfy the
of severance benefits, if any, is a separate “payment” for purposes of Treasury
available and you are, upon Separation, a “specified employee” for purposes of
Separation, or (ii) your death. Severance benefits shall not commence until you
have a Separation. If severance benefits are not covered by one or more
effective in the calendar year following the calendar year in which your
Separation occurs, the Release will not be deemed effective, for purposes of
with this letter agreement and Zoom’s normal payroll practices. 8. Parachute
Payments. If any payment or benefit you will or may receive from Zoom or
any such Payment shall be equal to the Reduced Amount. The “Reduced Amount”
204155783 v4
[exhibit104_azusoffer006.jpg]
Notwithstanding any provisions in this Section above to the contrary, if the
deferred compensation within the meaning of Section 409A. Zoom shall appoint a
by this Section. Zoom shall bear all expenses with respect to the determinations
by such accounting or law firm required to be made hereunder. If you receive a
Payment for which the Reduced Amount was determined pursuant to clause (x) above
and the Internal Revenue Service determines thereafter that some portion of the
Payment is subject to the Excise Tax, you agree to promptly return to Zoom a
sufficient amount of the Payment (after reduction pursuant to clause (x) above)
(y) above, you shall have no obligation to return any portion of the Payment
pursuant to the preceding sentence. 9. Other Agreements and Conditions of
Employment. This offer of employment is contingent upon your producing
appropriate and satisfactory documentation establishing your identity and right
to work in the United States, and completing the INS form I-9, attesting that
you have the right to work in the United States. Such documentation must be
produced within three business days of hire. If you have questions about this
contact Human Resources. Further, this offer of employment is contingent upon
satisfactory clearance of a background check and reference checks, and your
signing and returning with this letter the enclosed “Employment, Confidential
Information and Assignment of Creative Works Agreement” and “Arbitration
Agreement”. You agree not to bring to Zoom or use in the performance of your
responsibilities at Zoom any materials or documents of a former employer that
with Zoom. 10. Interpretation, Amendment and Enforcement. This letter agreement,
together with your Employment, Confidential Information and Assignment of
Creative Works Agreement and Arbitration Agreement, constitutes the complete and
exclusive statement of your employment agreement with Zoom, and supersedes any
implied) between you and Zoom regarding these subject matters. Modifications or
amendments to this letter agreement, other than those changes expressly
204155783 v4
[exhibit104_azusoffer007.jpg]
reserved to Zoom’s discretion in this letter, must be made in a written
agreement signed by you and a duly authorized officer of Zoom (other than you).
If any provision of this offer letter agreement is determined to be invalid or
other provision of this letter agreement and the provision in question shall be
of the parties insofar as possible under applicable law. This letter agreement
shall be binding upon any entity or person who is a successor by merger,
Zoom without regard to whether or not such entity or person actively assumes the
obligations hereunder and without regard to whether or not a Change in Control
occurs. If you wish to accept employment at Zoom under the terms described in
this letter agreement, please sign and date this letter agreement, the
Employment, Confidential Information and Assignment of Creative Works Agreement
and the Arbitration Agreement, and return them to me on or before [intentionally
left blank]. The offer of employment herein will expire if I do not receive this
signed letter by that date. If you have any questions, please contact me.
Sincerely, /S/ Eric Yuan Eric Yuan President and Chief Executive Officer
Accepted and Agreed: /S/ Ryan Azus_____________________
6/29/19________________________ Ryan Azus Date 204155783 v4
|
Name: Commission Regulation (EEC) No 3611/85 of 19 December 1985 on the supply of various lots of skimmed-milk powder as food aid
Type: Regulation
Date Published: nan
No L 344/24 Official Journal of the European . Communities 21 . 12. 85 COMMISSION REGULATION (EEC) No 3611/85 of 19 December 1985 on the supply of various lots of skimmed-milk powder as food aid Whereas, therefore, supply should be effected in accor dance with the rules laid down in Commission Regula tion (EEC) No 1354/83 of 17 May 1983, laying down general rules for the mobilization and supply of skim medmilk powder, butter and butteroil as food aid (6), amended by Regulation (EEC) No 1886/83 Q ; whereas, in particular, the periods and terms for supply and the procedure to be used to determine the costs arising there from should be laid down ; Whereas the measures provided for in this Regulation are in accordance with the Opinion of the Management Committee for Milk and Milk Products, THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Economic Community, Having regard to Council Regulation (EEC) No 3331 /82 of 3 December 1982 on food-aid policy and food-aid management and amending Regulation (EEC) No 2750/75 ('), and in particular Article 3(1 ), first subpara graph, Having regard to Council Regulation (EEC) No 1278/84 of 7 May 1984 laying down implementing rules for 1984 for Regulation (EEC) No 3331 /82 on food-aid policy and food-aid management (2), Having regard to Council Regulation (EEC) No 457/85 of 19 February 1985 laying down implementing rules for 1985 for Regulation (EEC) No 3331 /82 on food-aid policy and food-aid management (3), Having regard to Council Regulation (EEC) No 804/68 of 27 June 1968 on the common organization of the market in milk and milk products (4), as last amended by Regula tion (EEC) No 1298/85 (5), and in particular Article 7(5) thereof, Whereas following the taking of a number of decisions on the allocation of food aid the Commission has allocated to certain countries and beneficiary organizations 2 812 tonnes of skimmed-milk powder to be supplied fob , cif or free at destination ; HAS ADOPTED THIS REGULATION : Article 1 The intervention agencies shall , in accordance with the provisions of Regulation (EEC) No 1354/83 , supply skim med-milk powder as food aid on the special terms set out in the Annex. Article 2 This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Communities. This Regulation shall be binding in its entirety and directly applicable in all Member States . Done at Brussels , 19 December 1985 . For the Commission Frans ANDRIESSEN Vice-President (') OJ No L 352, 14 . 12 . 1982, p. 1 . 2 OJ No L 124, 11 . 5 . 1984, p. 1 . ( 3) OJ No L 54, 23 . 2 . 1985, p . 1 . 0 OJ No L 148 , 28 . 6 . 1968 , p . 13 . 5 OJ No L 137, 27 . 5 . 1985 , p . 5 . (6) OJ No L 142, 1 . 6 . 1983; p . 1 . 0 OJ No L 187, 12 . 7 . 1983, p . 29 . 21 . 12. 85 Official Journal of the European Communities No L 344/25 ANNEX Notice of invitation of tender (') Description of the lot A B C 1985 Council Regulation (EEC) No 457/85 Commission Decision of 6 May 1985 WFP Mozambique fob 40 tonnes 40 tonnes 45 tonnes Community market United Kingdom 1 . Programme : (a) legal basis (b) purpose 2. Recipient 3 . Country of destination 4. Stage and place of delivery 5. Representative of the recipient (2) (3) 6 . Total quantity 7. Origin of the skimmed-milk powder 8 . Intervention agency 9 . Specific characteristics 10 . Packaging 11 . Supplementary markings on the pack aging 12. Shipment period 13 . Closing date for the submission of tenders 14. In the case of a second invitation to tender pursuant to Article 14 (2) of Regulation (EEC) No 1354/83 : (a) shipment period (b) closing date for the submission of tenders 15 . Miscellaneous Annex I B to Regulation (EEC) No 1354/83 25 kg as in point 4.2 of Annex I B of Regulation (EEC) No 1354/83 'MOZAMBIQUE 0238202 / ACà AO DO PROGRAMA ALIMENTAR MUNDIAL / NACALA' MAPUTO' BEIRA' Before 10 February 1986 The costs of supply are determined by the United Kingdom intervention agency in accordance with Article 15 of Regulation (EEC) No 1 354/83 (4) No L 344/26 Official Journal of the European Communities 21 . 12. 85 Description of the lot D 1 . Programme : 1984 (a) legal basis (b) purpose Council Regulation (EEC) No 1278/84 Commission Decision of 25 October 1984 2. Recipient 3 . Country of destination | Tanzania 4. Stage and place of delivery cif Dar-es-Salaam 5. Representative of the recipient Embassy of Tanzania, Avenue Louise 363, B-1050 Brussels, Tel : 640 65 00 Telex : 63616 TANREP Brussels 6 . Total quantity 1 200 tonnes 7. Origin of the skimmed-milk powder Intervention stock 8 . Intervention agency holding the stocks German 9 . Specific characteristics Entry into intervention stock after 1 July 1985 10 . Packaging 25 kilograms 1 1 . Supplementary markings on the packaging 'TO THE UNITED REPUBLIC OF TANZANIA' 12. Shipment period Before 10 March 1986 13 . Closing date for the submission of tenders 27 January 1986 14. In the case of a second invitation to tender pursuant to Article 14 (2) of Regulation (EEC) No 1354/83 : (a) shipment period (b) closing date for the submission of tenders Before 25 March 1986 10 February 1986 15. Miscellaneous (4) 21 . 12. 85 Official Journal of the European Communities No L 344/27 Description of the lot E 1 . Programme : 1984 (a) legal basis (b) purpose Council Regulation (EEC) No 1278/84 Commission Decision of 13 December 1984 2 . Recipient 3 . Country of destination | Pakistan 4. Stage and place of delivery cif Karachi 5 . Representative of the recipient Mr G. Kadir Dakham , Mission du Pakistan auprà ¨s des CE, 47 B-Avenue Delleurs, 1170 Bruxelles Telex : 61816 PAREP B 6 . Total quantity 820 tonnes 7 . Origin of the skimmed-milk powder Community market 8 . Intervention agency 9 . Specific characteristics Annex I B of Regulation (EEC) No 1354/83 10 . Packaging 25 kilograms 11 . Supplementary markings on the packaging 'FREE DISTRIBUTION' 12 . Shipment period Before 10 March 1986 13 . Closing date for the submission of tenders 27 January 1986 14 . In the case of a second invitation to tender pursuant to Article 14 (2) of Regulation (EEC) No 1354/ 83 : (a) shipment period (b) closing date for the submission of tenders Before 25 March 1986 10 February 1986 15 . Miscellaneous (4) No L 344/28 Official Journal of the European Communities 21 . 12. 85 Description of the lot F 1 . Programme : 1985 (a) legal basis (b) purpose Council Regulation (EEC) No 457/85 Commission Decision of 6 May 1985 2. Recipient WFP 3 . Country of destination Egypt 4. Stage and place of delivery fob 5. Representative of the recipient (2) (3) 6 . Total quantity 60 tonnes 7. Origin of the skimmed milk powder Intervention stock 8 . Intervention agency holding the stocks Belgian 9 . Specific characteristics Entry into intervention stock after 1 July 1985 10 . Packaging 25 kilograms 1 1 . Supplementary markings on the packaging 'EGYPT 0249900 / ACTION OF THE WORLD FOOD PROGRAMME / ALEXANDRIA' 12. Shipment period Before 10 February 1986 13 . Closing date for the submission of tenders 14. In the case of a second invitation to tender pursuant to Article 14 (2) of Regulation (EEC) No 1354/83 : (a) shipment period (b) closing date for the submission of tenders 15 . Miscellaneous The costs of supply are determined by the Belgian intervention agency in accordance with Article 15 of Regulation (EEC) No 1354/83 (4) 21 . 12. 85 Official Journal of the European Communities No L 344/29 Description of the lot G 1 . Programme : 1985 (a) legal basis (b) purpose Council Regulation (EEC) No 457/85 Commission Decision of 6 May 1985 2. Recipient WFP 3 . Country of destination Algeria 4 . Stage and place of delivery fob 5 . Representative of the recipient (2) (3) 6 . Total quantity 205 tonnes 7. Origin of the skimmed-milk powder Intervention stock 8 . Intervention agency holding the stocks French 9 . Specific characteristics Entry into intervention stock after 1 July 1985 10 . Packaging 25 kilograms 11 . Supplementary markings on the packaging 'ALGERIE 2789 / ACTION DU PROGRAMME ALIMENTAIRE MONDIAL / ALGER' 12 . Shipment period Before 10 February 1986 13 . Closing date for the submission of tenders 14. In the case of a second invitation to tender pursuant to Article 14 (2) of Regulation (EEC) No 1354/83 : (a) shipment period (b) closing date for the submission of tenders 15 . Miscellaneous The costs of supply are determined by the French intervention agency in accordance with Article 15 of Regulation (EEC) No 1354/83 (4) No L 344/30 Official Journal of the European Communities 21 . 12. 85 Description of the lot H 1 . Programme : 1985 (a) legal basis (b) purpose Council Regulation (EEC) No 457/85 Commission Decision of 6 May 1985 2. Recipient WFP 3 . Country of destination Tanzania 4 . Stage and place of delivery fob 5 . Representative of the recipient (2) (3) 6 . Total quantity 175 tonnes 7 . Origin of the skimmed milk powder Intervention stock 8 . Intervention agency holding the stocks German 9 . Specific characteristics Entry into intervention stock after 1 July 1985 10 . Packaging 25 kilograms (5) 1 1 . Supplementary markings on the packaging 'TANZANIE 2298 / ACTION OF THE WORLD FOOD PROGRAMME / DAR-ES-SALAAM' 12 . Shipment period Before 10 February 1986 13 . Closing date for the submission of tenders 14. In the case of a second invitation to tender pursuant to Article 14 (2) of Regulation (EEC) No 1354/83 : (a) shipment period (b) closing date for the submission of tenders 15 . Miscellaneous The costs of supply are determined by the German intervention agency in accor dance with Article 15 of Regulation (EEC) No 1 354/83 (4) 21 . 12. 85 Official Journal of the European Communities No L 344/31 Description of the lot I 1 . Programme : 1985 (a) legal basis (b) purpose Council Regulation (EEC) No 457/85 Commission Decision of 6 May 1985 2. Recipient WFP 3 . Country of destination Tunisia 4. Stage and place of delivery fob 5 . Representative of the recipient (2) (3) 6. Total quantity 227 tonnes 7. Origin of the skimmed-milk powder Intervention stock 8 . Intervention agency holding the stocks German 9 . Specific characteristics Entry into intervention stock after 1 July 1985 10 . Packaging 25 kilograms 11 . Supplementary markings on the packaging 'TUNISIE 2518 / ACTION DU PROGRAMME ALIMENTAIRE MONDIAL / TUNIS' 12. Shipment period Before 10 March 1986 13 . Closing date for the submission of tenders 27 January 1986 14. In the case of a second invitation to tender pursuant to Article 14 (2) of Regulation (EEC) No 1354/83 : (a) shipment period (b) closing date for the submission of tenders Before 25 March 1986 10 February 1986 15. Miscellaneous 0) No L 344/32 Official Journal of the European Communities 21 . 12. 85 Notes (') This Annex, together with the notice published in Official Journal of the European Communities No C 208 of 4 August 1983, page 9, shall serve as notice of invitation to tender. ( 2) See the list published in the Official Journal of the European Communities No C 229 of 26 August 1983, page 2 . (3 ) The successful tenderer shall contact the recipient as soon as possible, for the necessary shipping documents . (4) Commission delegate to be contacted by successful tenderer : see list published in the Official Journal of the European Communities No C 227 of 7 September 1985, page 4 . 0 To be delivered on standard pallets 40 bags each pallet wrapped in shrunk plastic cover. |
Title: (IL) Employee trying to sue for hostile work environment after voluntary resignation.
Question:Hi all, I'll try to keep this brief.
I have two administrative assistants that worked for me. One is a 30 year old, pregnant Hispanic woman who does a decent job. The other is a 50-ish African American woman who is/was horrendous. She got in many arguments with other staff members and her quality of work was extremely poor. She had been with the company for almost 30 years, but had bounced around between many different departments and many different supervisors/managers. She never stayed in one place more than a few years, and we suspected it to be because of her attitude and her general inability to play nicely with others.
She has been my direct report about two years. Things were relatively ok for a while, but started to disintegrate as her coworkers had more and more complaints about her attitude and general poor quality of work. She went into overtime several times in a row, and the third time she did so, we sat her down to talk to her about the overtime policy. She became very angry and defensive (which is not uncommon for her) and got hostile with me. I have kept a very detailed paper trail on this woman because I knew from her previous supervisor what a problem she had been for the department. She is quick to claim racism, ageism, or whatever ism she can pull out of the air whenever she feels she is being "targeted."
She announced that she was resigning this week. She gave HR the reason that she was in a "hostile work environment" and was discriminated against for her race/age/whatever. I bring up the other admin assistant I have because she too, is in a protected class(es), but I have never had issues with her and she has always been understanding and respectful to constructive feedback and criticism.
MY question is: she voluntarily resigned. It was not a forced resignation or a termination. She actually hasn't been written up for anything yet either. Does she have a case against me, on a personal level?
Thanks for the advice in advance. If you need more info, I am happy to add more.
Answer #1: If it as you described - on a personal level, no. You should give all your documentation to HR. They should contact their insurance carrier if they hear from her attorney or the EEOC. My guess is she's using the term to scare HR into giving her a payout.
I wouldn't worry about it. Move on, hire a replacement & be happy she's gone. |
Exhibit 10.5 Distribution Agreement Playlogic International N.V. - U&I Entertainment LLC Page 1 of 15 Distribution Agreement THIS AGREEMENT is dated March 16, 2009 by and between U&I ENTERTAINMENT, LLC, having his registered address at 251 1st Ave N#2, Minneapolis, MN 55401, USA andPlaylogic International NV, a Dutch company having its registered address at World Trade Centre, C-Tower 10th Floor, Strawinksylaan 1041, 1077 XX, Amsterdam, the Netherlands. RECITALS: A. U & I is in the business of manufacturing, marketing and distributing software and related products. B.Playlogic is in the business of publishing software products. C. Playlogic desires to deliver to U & I the software products described in Addendum A for sale and distribution by U & I. NOW, THEREFORE, in consideration of the mutual promises set forth in this Agreement, the parties agree as follows: 1. Definitions. "Customers" means any individual or entity to whom Units are or may be distributed by U & I.Customers may include U & I, resellers and retailers. "Distribution Fee" means an amount equal to the Net Proceeds multiplied by the applicable percentage set forth in Addendum A. "End Users" means those persons who purchase for use one or more Units from Customers. “Customer Specific Programs” means the costs associated with marketing and merchandising programs that are either required or mutually agreed to at Customer. “Customer Event Fees” means the costs associated with attending or exhibiting at Customer specific events. “Logistic Fees” means the costs associated with logistics. The estimated amount is approximately USD 1.25 (one dollar and twenty five cents) per unit. “Future Authorized Deductions” means all price protection and returns that have been offered to retail customers but not yet deducted from receipts. “Imminent Deductions Hold Back” means a hold back from Gross Receipts based on potential deductions from retail. Page 2 of 15 "Marketing Development Fund" or "MDF" means the costs associated with the marketing and merchandising of each Version at Customer locations. “Net Proceeds” means Wholesale Proceeds received in any given calendar month minus Price Protection minus MDF minus Pre-Approved Returns minus Customer Specific Programs minus Customer Event Fees minus Placement Fees minus Future Authorized Deductions minus Imminent Deductions Hold Back minus the Distribution Fee. “Placement Fees” means the costs associated with securing retail shelf placement at Customer. “Price Protection” means price reductions granted to Customers after order and delivery of Units to the Customer to facilitate retail sale efforts. "Pre-Approved Returns" means Units of any Version of the Title returned by a Customer that are pre-approved for return by Playlogic "Term" means the period during which this Agreement shall be in effect, as set forth in Section6 below. "Territory" means reference Addendum A. "Title" means each software product published by Playlogic and listed on AddendumA, together with all printed artwork, booklets, manuals, pamphlets or other materials, prepared by or on behalf of Playlogic, which refer to or relate to each respective Title. "Unit" means one copy of one Version embodied on any storage device embodied on CD-ROM, DVD, cartridge, or any other tangible medium now known or later devised, fully packaged as a finished good and ready for shipment to Customers. "Version" means the Title as designed to operate with software or other interactive media environment or platform now known or later devised.Examples of Versions include software products developed for:the IBM PC platform utilizing the Windows XP operating system; the Apple Macintosh platform; and console platform versions such as Sony Playstation2, PSP, Microsoft Xbox, and Nintendo Gamecube. "Wholesale Proceeds" means wholesale proceeds actually received by U & I from the distribution of the Titles in any given calendar month. 2. Grant of Rights. a) Rights Granted.With respect to each Title, Playlogic hereby grants to U & I throughout the Territory, during the Term: Page 3 of 15 (i) exclusive right to sell and distribute Units in North America and Canada. b) the non-exclusive right: (i) to advertise, publicize and promote, in a manner reasonably acceptable to Playlogic, each Version by any means and in all media now known or later devised, subject to Playlogic’s prior written approval during the Term and within the Territory. (ii) to use, publish and permit others to use and publish Playlogic’s trademarks, logos and other proprietary markings in conjunction with the advertising and promotion of Units. 3. Obligations of U & I. 3.1Distribution and Warehousing. a) U & I shall use commercially reasonable efforts to distribute Units to Customers. b) U & I shall be responsible for distributing and shipping Units toCustomers. c) U & I shall provide adequate and secure warehousing facilities for allUnits in inventory. d) U & I shall be responsible for all billing, invoicing and related administrative procedures associated with order taking, distribution and shipping of the Units. e) U & I will promptly notify Playlogic in writing of any known infringement of Playlogic’s propriety rights which comes to U & I’s attention.U & I agrees to cooperate, at Playlogic’s expense, in connection with Playlogic’s reasonable efforts to protect its proprietary rights in the Titles. f ) For the fence of doubt it is clear between Parties that U & I will be responsible of the management and that Playlogic will be responsible for the costs involved with the logistic. 3.2Trade Marketing. a) U & I shall use commercially reasonable efforts to trade market the Units to theCustomers. Page 4 of 15 b) U & I shall provide recommendations and assist Playlogic in developing strategies to be implemented by Playlogic to help stimulate the sale of the Units, provided that U & I shall not be obligated to incur any costs associated with retaining or employing third parties. c) U & Iwill provide Playlogic with regular reports which shall include the following information, if available; a summary of the number of Units distributed to each Customer, sold through, and the number of Units returned since the last report issued. d) U & I shall advise Playlogic on matters relating to marketing, placement, promotion and sell through of Titles by each Customer. e) U & I shall obtain approval from Playlogic prior to authorizing trade marketing and MDF or Price Protection for a Customer. 3.3Insurance a) U & I shall undertake to maintain and keep in force, in adequate amounts, an insurance on manufactured copies of the Titles described in Addendum A to be delivered to U & I by Playlogic and to be stored by U & I as stock, at a company accepted by Playlogic, that is common in the videogame business, including a fire insurance and a extended coverage insurance. In case of loss, the amount payable will be paid to Playlogic. Playlogic may request to see the original of all policies and/or certificates of insurance on the stock as described above during the duration of this agreement and until the last payment and/or performance of an obligation under this agreement including Logistic Fees. 4. Obligations of Playlogic. 4.1Software. a) Playlogic shall provide U & I with finished goods of the Title or Titles in each Version. 4.2Technical Support. a) Playlogic will provide technical support for each Version in the Territory to U & I, Customers and End Users.Technical support will include, without limitation, warranty service and email support.Playlogic will have personnel knowledgeable of the technical and the application aspects of each Version available to answer support questions during regular business hours.During the Term of this Agreement, each party agrees to inform the other promptly of any known defects or operational errors affecting any Version. Page 5 of 15 4.3Testing. a) Prior to the delivery of Titles to U & I , Playlogic agrees to test each Version to make certain that each Version, to the best of Playlogic’s knowledge, is bug-free and fully functional in the different configurations in which the Version is designated to run and for all peripherals with which each Version is designated to work. 4.4Changes. a) Playlogic will give U & I notice at least thirty (30) days prior to any material modification to a Title or any Version, including, without limitation, Playlogic’s decisions to discontinue or materially enhance any Title or Version.Playlogic shall promptly provide U & I with master disks embodying all updates and enhancements. 4.5Marketing. a) Notwithstanding U & I ’s rights set forth in Section2.1, throughout the Term, Playlogic will use its commercially reasonable efforts to advertise, market and promote the Titles throughout the Territory. b) Playlogic shall provide to U & I thirty (30) days prior to the street date of each Version and upon reasonable request thereafter, at no cost to U & I, copies of each of the following materials for purposes of facilitating the promotion of that Version by U & I: demonstration copies, specification sheets, sell sheets and any other available promotional material. 4.6Insurance. a) During the Term of this Agreement, Playlogic will at all times maintain at its own cost comprehensive general liability insurance, Playlogic’s liability and errors and omissions insurance.Each policy shall have coverage of at least one million dollars ($1,000,000) per occurrence/three million dollars ($3,000,000) in the aggregate.Each policy shall be in a form reasonably acceptable to U & I and shall be issued by an insurance company with a rating of A or better as set forth in the most current 4.7Best Insurance Guide. a) At the request of U & I, Playlogic shall add U & I as an additional insured to each policy and furnish certificates evidencing that insurance. 4.8Distribution. a) Playlogic will be responsible for all fees associated with shipping Units including handling, storage and freight. The amounts will be deducted from payment as described under the definition of Net Proceeds. Page 6 of 15 5. Compensation. 5.1.1 Net Proceeds. On the tenth day of each calendar month, U & I shall pay 100% of Net Proceeds minus the Distribution Fee for the prior calendar month to Playlogic. See Addendum B for sample statement. 5.2 Accounting. 5.2.1 Along with any Net Proceeds due, U & I shall submit a report to Playlogic showing Wholesale Proceeds, Price Protection, MDF, Returns, the Logistic Fees and any other costs permitted to be deducted under the terms of this Agreement. 5.2.2 Playlogic will have the right, exercisable not more than once every six (6) months, at Playlogic’s expense, to examine or have its agents examine, such books, records and accounts during U & I ’s normal business hours to verify the payments due by U & I to Playlogic hereunder. If the examination shows the amount paid was insufficient and the difference between the actual amount paid due more than 5% than U & I will be responsible for the costs of the examination. 5.2.3 On a quarterly basis, U & I and Playlogic will discuss the Imminent Deduction Hold Back amount from the previous quarter and will decide on a mutually agreeable reconciliation if appropriate. 6. Term. Subject to Section 7 below, the term of this Agreement shall commence as of the date hereof and shall continue for six (6) months, and shall automatically renew for additional renewal terms of six (6) months unless notice of termination is received by any party at least thirty (30) days prior to the expiration of the initial term or any renewal term. 7. Termination. 7.1 Termination for Breach.In the event of a material breach by either party, which breach is not cured within thirty (30) days after written notice by the non breaching party, the non breaching party may, upon written notice to the breaching party, terminate this Agreement in its entirety or only in respect to the Version to which the breach applies. 7.2 Upon termination, the non breaching party will have the right to pursue any remedies it may have at law or in equity. 7.3 Immediate Termination.Either party may immediately terminate this agreement if (i) a receiver is appointed for the other party or its property; (ii) the other party becomes insolvent or is unable to pay its debts as they mature, or makes an assignment for the benefit of its creditors; (iii) the other party seeks relief or if proceedings are commenced against the other party or on its behalf under any bankruptcy, insolvency or debtor's relief law, and those proceedings have not been vacated or set aside within sixty (60) days from the date of their commencement; or (iv) if the other party is liquidated or dissolved Page 7 of 15 7.4 Vendor of Record Status Termination.In the event that Playlogic secures vendor of record status at Customer(s), Playlogic may terminate the agreement in respect to the customer with which vendor of record status has been secured. 7.5.
|
Exhibit 10.1
AMENDED AND RESTATED TERMINATION AGREEMENT
This Amended and Restated Termination Agreement (this “Agreement”) is entered
into as of November 5, 2012 (the “Agreement Date”) by and between Sally Beauty
Holdings, Inc., a Delaware corporation (“SBH”) and Gary G. Winterhalter (the
“Executive”). This Agreement amends and restates the original Termination
Agreement by and among Alberto-Culver Company, a Delaware corporation, Sally
Holdings, Inc., a Delaware corporation (“Sally Holdings”), and the Executive,
dated as of June 19, 2006, as amended on January 24, 2007 (the “Original
Agreement”). As required by the Original Agreement, this amended and restated
version of the Agreement has been consented to by Sally Holdings LLC, the
successor to Sally Holdings, Inc. and CDRS Acquisition LLC.
WHEREAS, the Executive currently serves as the Chief Executive Officer of SBH,
and SBH desires to assume the rights and obligations of Sally Holdings under the
Agreement, and
WHEREAS, the parties desire to further amend the Agreement (i) to reflect the
passage of more than two years since the spinoff of Sally Holdings from
Alberto-Culver Company (defined as the “Effective Time” in the Original
Agreement), (ii) to reflect the assignment to and assumption by SBH of the
rights and obligations of Sally Holdings under the Agreement as they relate to
the Executive, (iii) to update the provisions of the Agreement relating to
Section 409A of the Internal Revenue Code, including protective language
relating to the timing of a release of claims as discussed in Internal Revenue
Service Notices 2010-6 and 2010-80, (iv) to remove the requirement that CDRS
Acquisition LLC consent to further amendments to the Agreement, if any; (v) to
update Schedule I to the Agreement as appropriate to accommodate the release
timing language and to extend the post-termination medical and dental insurance
coverage, and (vi) to delete Exhibit A, as the parties have already entered into
the Severance Agreement referred to therein; and
WHEREAS, the Agreement currently provides that the Agreement cannot be amended
except by a writing executed by the Executive, Sally Holdings and CDRS
Acquisition LLC;
agreements contained herein, the parties hereby amend and restate the Agreement
as follows:
(a) SBH and the Executive agree that in the event of the termination of the
Executive’s employment without Cause by SBH or by the Executive for Good Reason
on or after the Agreement Date, the Executive shall be entitled to the payments
and benefits set forth in Schedule I hereto. In the event that the Executive
retires from employment at any time with the prior approval of the Board of
Directors of SBH, the Executive shall be entitled to the medical and dental
benefits and payments set forth in the second paragraph of Schedule I hereto,
but not to the other benefits described in Schedule I.
(b) SBH and the Executive are parties to that certain Amended and Restated
Severance Agreement, dated as of November 5, 2012, which provides certain
severance payments and benefits in the event of the termination of the
within two years following a change in control of SBH (the “Severance
Agreement”). If the Executive shall be entitled to any payments or benefits
pursuant to the Severance Agreement, then the Executive shall not be entitled to
any payments or benefits under this Agreement.
(c) For purposes of Section 1(a), the term “Cause” means (1) a material breach
by the Executive of those duties and responsibilities of the Executive which do
not differ in any material respect from the duties and responsibilities of the
Executive during the six-month period immediately prior to the Agreement Date
is demonstrably willful and deliberate on the Executive’s part, which is
best interests of SBH and which is not remedied in a reasonable period of time
after receipt of written notice from SBH specifying such breach, or (2) the
commission by the Executive of a felony involving moral turpitude.
(d) For purposes of Section 1(a), “Good Reason” means, without the Executive’s
consent, the occurrence of any of the following circumstances after the
Agreement Date unless such circumstances are fully corrected prior to the
expiration of the fifteen (15) calendar day period following delivery to SBH of
the Executive’s notice of intention to terminate his employment for Good Reason
describing such circumstances in reasonable detail (which notice must be given
no later than 90 days after the occurrence of such event):
(A) any of (1) the assignment to the Executive of any duties inconsistent in any
status immediately prior to the Agreement Date, (2) a change in the Executive’s
reporting responsibilities as in effect immediately prior to the Agreement Date
or (3) any removal or involuntary termination of the Executive otherwise than as
(B) a reduction in the Executive’s rate of annual base salary as in effect
immediately prior to the Agreement Date or as the same may be increased from
time to time thereafter:
(C) any requirement that the Executive be based anywhere other than within a 20
mile radius of the facility where the Executive is located as of the Agreement
Date; or
(D) the failure of SBH or any of its affiliated companies to (1) continue in
effect any employee benefit plan or compensation plan in which the Executive is
participating immediately prior to the Agreement Date, unless the Executive is
permitted to participate in other plans providing the Executive with
substantially comparable benefits, or the taking of any action by SBH or any of
its affiliated companies which would adversely affect the Executive’s
plan, (2) provide the Executive and the Executive’s dependents welfare benefits
in accordance with the plans, practices, programs and policies as in effect
generally at any time with respect
2
to the other peer executives of SBH, (3) provide fringe benefits in accordance
with the plans, practices, programs and policies as in effect generally at any
time with respect to other peer executives of SBH, (4) provide the Executive
with paid vacation in accordance with the plans, policies, programs and
practices as in effect generally at any time with respect to other peer
executives of SBH, or (5) reimburse the Executive promptly for all reasonable
practices and procedures as in effect generally at any time with respect to
other peer executives of SBH.
2. Limitations on Payments to the Executive. Solely for the purposes of the
payments in excess of the limitation of this Section 2 or otherwise determined
Executive to SBH with interest from the date of receipt by the Executive to the
and delivered to the Executive and SBH such repayment does not allow such
overpayment to be excluded for federal income and excise tax purposes from the
Executive’s income for the year of receipt or afford the Executive a
3. Withholding Taxes. SBH may withhold from all payments due to the Executive
(or the Executive’s estate or beneficiaries) hereunder all taxes which, by
therefrom.
4. Agreement Date; Termination of Agreement. This Agreement shall be effective
on the Agreement Date.
5. Scope of Agreement. Nothing in this Agreement shall be deemed to entitle the
Executive to continued employment with SBH.
(a) This Agreement shall inure to the benefit of and be enforceable by SBH and
its successors and assigns, and by the Executive and the Executive’s personal or
distributees, devisees and
3
legatees. If the Executive shall die after terminating employment pursuant to
Section 1(a) while any amounts would be payable to the Executive hereunder had
(b) This Agreement shall not be terminated by any merger or consolidation of SBH
whereby SBH is or is not the surviving or resulting corporation or as a result
of any transfer of all or substantially all of the assets of SBH. In the event
of any such merger, consolidation or transfer of assets, the provisions of this
7. Notices. (a) For purposes of this Agreement, all notices and other
duly given upon receipt when delivered by United States mail, certified and
return receipt requested, postage prepaid, addressed (i) if to the Executive, to
the Executive’s most recent address as it appears in the records of SBH, if to
SBH, to Sally Beauty Holdings, Inc., 3001 Colorado Boulevard, Denton, TX 76210,
attention of the General Counsel, or (ii) to such other address as any party may
have furnished to the other parties in writing in accordance herewith.
(b) A written notice of the Executive’s termination of employment by SBH or by
the Executive, as the case may be, shall (i) set forth in reasonable detail the
Executive’s employment and (ii) specify the termination date (which date shall
Executive or SBH to set forth in such notice any fact or circumstance which
the Executive or SBH hereunder or preclude the Executive or SBH from asserting
such fact or circumstance in enforcing the rights of the Executive or SBH
hereunder.
8. Employment with Subsidiaries. Employment with SBH for purposes of this
Agreement shall include employment with SBH or any corporation or other entity
in which SBH has a direct or indirect ownership interest of 50% or more of the
directors.
9. Governing Law; Validity. The interpretation, construction and performance of
and effect.
all of which shall be deemed to be an original and all of which together shall
4
11. Miscellaneous. No provision of this Agreement may be modified or waived
Executive and by a duly authorized officer of SBH. No waiver by any party hereto
the same or at any prior or subsequent time. Failure by the Executive or SBH to
any right the Executive or SBH may have hereunder, including, without
provision or right under this Agreement. The rights of, and benefits payable to,
the Executive (or the Executive’s estate or beneficiaries) pursuant to this
Executive (or the Executive’s estate or beneficiaries) under any other employee
benefit plan or compensation program of SBH.
(a) General. This Agreement shall be interpreted and
requirements Section 409A of the Code and applicable advice and regulations
issued thereunder. Nevertheless, the tax treatment of the benefits provided
under the Agreement is not warranted or guaranteed. Neither SBH nor its
directors, officers, employees or advisers (other than the Executive) shall be
the Executive as a result of the application of Section 409A of the Code.
the Code would otherwise be payable or distributable hereunder by reason of the
Executive’s termination of employment, such amount or benefit will not be
payable or distributable to the Executive by reason of such circumstance unless
the circumstances giving rise to such termination of employment meet any
(c) Six-Month Delay in Certain Circumstances. Notwithstanding
acceleration of payment by SBH under Treas.
5
taxes):
(1) if the payment or distribution is payable in a lump sum, the
service; and
(2) if the payment or distribution is payable over time, the
during the six-month period immediately following the Executive’s separation
Executive’s separation from service, whereupon the accumulated amount will be
paid or distributed to the Executive on such date and the normal payment or
409A Regulations, SBH’s Specified Employees and its application of the six-month
with rules adopted by the Board or a committee thereof, which shall be applied
of SBH, including this Agreement.
payment or benefit is conditioned on the Executive’s execution and
revocation periods shall have expired within 60 days after the Executive’s
termination of employment; failing which such payment or benefit shall be
forfeited. If such payment or benefit constitutes non-exempt deferred
compensation, and if such 60-day period begins in one calendar year and ends in
before the second such calendar year, even if the release becomes irrevocable in
the first such calendar year. In other words, the Executive is not permitted to
influence the calendar year of payment based on the timing of his signing of the
release.
(e) Permitted Acceleration. SBH shall have the sole authority
to make any accelerated distribution permissible under Treas. Reg.
(f) 409A Amendments. SBH shall have the right to make such
to the Executive. If SBH defers payments to the Executive pursuant to this
Section 12, then SBH shall provide the Executive with prompt written notice
thereof, including reasonable explanation and the estimated date on
6
which it has determined it is permitted to make the payments deferred under this
Section 12.
13. Amendment. Except as provided in Section 12, this Agreement cannot be
amended except pursuant to a writing signed by SBH, or its successor, and the
Executive.
IN WITNESS WHEREOF, SBH has caused this Agreement to be executed by its duly
authorized officer and the Executive has executed this Agreement as of the dates
set forth below.
By:
/s/ Mathew O. Haltom
Name:
Matthew O. Haltom
Title:
Senior Vice President,
General Counsel and Secretary
EXECUTIVE
/s/ Gary G. Winterhalter
Gary G. Winterhalter
Sally Holdings and CDRS Acquisition LLC hereby consent to this Agreement by
signing below.
SALLY HOLDINGS LLC
By:
Name:
Matthew O. Haltom
Title:
CDRS ACQUISITION LLC
By:
/s/ Kenneth A. Giuriceo
Name:
Kenneth A Giuriceo
Title:
Partner
7
SCHEDULE I
TO
TERMINATION AGREEMENT
Lump Sum Payment
Within 30 days following the date of termination the Executive’s employment in
accordance with Section 1(a) of the Agreement (the “Date of Termination”) (or
such later date as may be required by Section 12 of the Agreement), provided
that SBH has received a customary release (which release shall extend to all
claims against SBH and its affiliates and agents) signed by the Executive and
not revoked within the permitted revocation period, SBH shall pay to the
Executive a lump sum payment equal to two (2) times the Executive’s annual base
salary at the Date of Termination, plus two (2) times the average of the dollar
amount of the Executive’s actual or annualized (for any fiscal year consisting
of less than 12 full months) annual bonus, paid or payable, including by reason
of any deferral, to the Executive by SBH and its affiliated companies in respect
of the five fiscal years of SBH immediately preceding the fiscal year in which
Benefits
Medical and Dental Insurance Continuation. For a period of 18 months commencing
on the Date of Termination (the “Initial Coverage Period”), SBH shall continue
to keep in full force and effect all policies of medical and dental insurance
coverage, upon the same terms and otherwise to the same extent as the Executive
and his dependents were participating in such policies as in effect immediately
prior to the Date of Termination (such coverage, the “Date of Termination
Coverage”) or, if more favorable to the Executive, as provided generally with
respect to other peer executives of SBH and its affiliated companies, and SBH
and the Executive shall share the costs of the continuation of such insurance
the Date of Termination. On the first day of the month following the expiration
of the Initial Coverage Period, SBH shall pay to Executive a lump sum cash
payment equal to (i) SBH’s full monthly cost for Date of Termination Coverage
(i.e., excluding the Executive’s cost of such coverage) on the last day of the
Initial Coverage Period times (ii) the greater of six or the number of months
then remaining until the Executive becomes eligible for Medicare coverage (the
“Extended Coverage Period”). SBH shall continue the Executive’s eligibility for
COBRA-type medical and dental benefits for the Extended Coverage Period. SBH’s
obligation to continue to provide benefits during the Initial Coverage Period or
any cash payment thereafter shall terminate at such time that the Executive
comparable to the Date of Termination Coverage, in which case the Executive
shall rebate to SBH any unearned portion of the lump sum payment for the
Extended Coverage Period. The coverage provided hereunder shall be applied
toward the satisfaction of, and shall not supplement, the Executive’s right to
1985, as amended, or any similar state law. Notwithstanding the foregoing:
(i) during the period of coverage, the benefits provided in
8
other calendar year (other than any life-time coverage limits under the
applicable medical plans); (ii) the reimbursement of an eligible expense shall
expense was incurred; and (iii) the Executive’s rights pursuant to this
paragraph shall not be subject to liquidation or exchange for another benefit.
Executive Outplacement. SBH will pay for and provide to the Executive
provided that SBH shall not be responsible to pay for such services to the
9
|
Exhibit 10.8
EMPLOYMENT AGREEMENT
Mattoon, Illinois, and Stanley E. Gilliland (“Manager”).
ARTICLE ONE
ARTICLE TWO
COMPENSATION AND BENEFITS
$118,400.00 per fiscal year, payable in accordance with the Company’s customary
ARTICLE THREE
DEATH OF MANAGER
ARTICLE FOUR
TERMINATION OF EMPLOYMENT
follows:
Manager the following:
employees.
ARTICLE FIVE
CONFIDENTIAL INFORMATION
with legal proceedings.
other Confidential Information.
ARTICLE SIX
conducts business:
affiliates.
efforts.
ARTICLE SEVEN
REMEDIES
ARTICLE EIGHT
MISCELLANEOUS
had taken place.
the date hereof.
If to Manager: Stanley E. Gilliland
27 S. Country Club Rd.
Mattoon, IL 61938
1515 Charleston Avenue
Mattoon, Illinois 61938
MANAGER:
/s/ Stanley E. Gilliland
|
Exhibit 10.1
by and among
and
THE GUARANTORS PARTY HERETO
and
THE LENDERS PARTY HERETO
and
and
and
PNC CAPITAL MARKETS LLC and FIFTH THIRD BANK, as Co-Lead Arrangers
and
Dated as of May 23, 2012
CUSIP # 74973VAA7
TABLE OF CONTENTS
Page
1. CERTAIN DEFINITIONS
1
1.1 Certain Definitions
1
1.2 Construction
22
23
23
2.1 Revolving Credit Commitments
23
2.1.1 Revolving Credit Loans
23
2.1.2 Swing Loan Commitment
24
24
2.3 Commitment Fees
24
25
25
2.4.2 Swing Loan Requests
25
Swing Loans
26
26
26
2.5.3 Making Swing Loans
26
27
27
2.5.6 Swing Loans Under Cash Management Agreements
27
2.6 Notes
28
2.7 Use of Proceeds
28
28
28
29
2.8.3 Disbursements, Reimbursement
29
30
2.8.5 Documentation
31
31
31
2.8.8 Indemnity
33
33
35
2.8.11 Cash Collateral
35
2.9 Defaulting Lenders
35
37
37
i
3. INTEREST RATES
39
3.1 Interest Rate Options
39
3.1.1 Revolving Credit Interest Rate Options; Swing Line Interest Rate
39
3.1.2 Rate Quotations
39
3.2 Interest Periods
40
40
3.2.2 Renewals
40
3.3 Interest After Default
40
3.3.1 Letter of Credit Fees, Interest Rate
40
3.3.2 Other Obligations
40
3.3.3 Acknowledgment
40
Available
41
3.4.1 Unascertainable
41
41
3.4.3 Administrative Agent's and Lender's Rights
41
42
4. PAYMENTS
42
4.1 Payments
42
43
43
44
4.5 Interest Payment Dates
44
4.6 Voluntary Prepayments
44
4.6.1 Right to Prepay
44
45
4.7 Increased Costs
46
4.7.1 Increased Costs Generally
46
4.7.2 Capital Requirements
46
4.7.3 Certificates for Reimbursement; Repayment of Outstanding Loans; Borrowing
of New Loans
47
4.7.4 Delay in Requests
47
4.8 Taxes
47
47
4.8.2 Payment of Other Taxes by the Borrower
48
4.8.3 Indemnification by the Borrower
48
4.8.4 Evidence of Payments
48
4.8.5 Status of Lenders
48
4.9 Indemnity
49
4.10 Settlement Date Procedures
50
51
5.1 Representations and Warranties
51
ii
51
51
52
52
5.1.5 Litigation
52
5.1.6 Financial Statements
53
5.1.7 Margin Stock
53
5.1.8 Full Disclosure
54
5.1.9 Taxes
54
54
5.1.11 Insurance
54
5.1.12 ERISA Compliance
54
5.1.13 Environmental Matters
55
5.1.14 Solvency
55
5.1.15 Pledged Equity
55
5.1.16 Pari Passu
55
56
56
6.1.1 Deliveries
56
6.1.2 Payment of Fees
57
57
7. COVENANTS
57
7.1 Affirmative Covenants
57
57
58
7.1.3 Maintenance of Insurance
58
58
7.1.5 Visitation Rights
58
59
59
7.1.8 New Material Subsidiaries
59
7.1.9 Transactions with Affiliates
60
7.1.10 Anti-Terrorism Laws
60
7.1.11 Further Assurances
60
7.2 Negative Covenants
60
7.2.1 Indebtedness
60
7.2.2 Liens; Lien Covenants
62
7.2.3 Dividends and Related Distributions
62
7.2.4 Liquidations, Mergers, Consolidations, Acquisitions
62
7.2.5 Dispositions of Assets or Subsidiaries
63
64
7.2.7 Fiscal Year
64
iii
64
7.2.9 Negative Pledge
64
7.2.10 Maximum Leverage Ratio
65
7.2.11 Minimum Interest Coverage Ratio
65
7.2.12 Minimum Liquidity
65
7.3 Reporting Requirements
65
7.3.1 Quarterly Financial Statements
65
7.3.2 Annual Financial Statements
65
7.3.3 Certificate of the Borrower
66
7.3.4 Notices
66
8. DEFAULT
67
8.1 Events of Default
67
67
8.1.2 Breach of Warranty
67
67
68
68
68
8.1.7 Loan Document Unenforceable
68
8.1.8 Proceedings Against Assets
68
69
8.1.10 Change of Control
69
8.1.11 Relief Proceedings
69
69
Proceedings
69
70
8.2.3 Set-off
70
8.2.4 Application of Proceeds
70
8.2.5 Actions in Respect of the Letters of Credit Upon Event of Default; L/C
Cash Collateral Account
71
74
9.1 Appointment and Authority
74
74
9.3 Exculpatory Provisions
74
75
9.5 Delegation of Duties
76
76
77
77
9.9 Administrative Agent’s Fee
77
77
9.11 No Reliance on Administrative Agent's Customer Identification Program
77
iv
10. MISCELLANEOUS
78
78
10.1.1 Increase of Commitment
78
78
10.1.3 Release of Pledged Equity or Guarantor
78
10.1.4 Miscellaneous
79
79
79
10.3.1 Costs and Expenses
79
10.3.2 Indemnification by the Borrower
80
10.3.3 Reimbursement by Lenders
80
81
10.3.5 Payments
81
10.4 Holidays
81
81
10.5.1 Notices Generally
81
10.5.2 Electronic Communications
82
82
10.6 Severability
82
10.7 Duration; Survival
82
10.8 Successors and Assigns
83
83
10.8.2 Assignments by Lenders
83
10.8.3 Register
85
10.8.4 Participations
85
10.8.5 Limitations upon Participant Rights Successors and Assigns Generally
86
86
10.9 Confidentiality
86
87
87
87
10.11.1 Governing Law
87
10.11.2 SUBMISSION TO JURISDICTION
87
10.11.3 WAIVER OF VENUE
88
10.11.4 SERVICE OF PROCESS
88
88
89
10.13 Joinder
89
10.14 Amendment and Restatement
89
v
SCHEDULES
— PRICING GRID
— PERMITTED LIENS
SCHEDULE 2.8.1
SCHEDULE 5.1.2
— SUBSIDIARIES
SCHEDULE 5.1.13
— ENVIRONMENTAL DISCLOSURES
SCHEDULE 7.2.1.1
— PERMITTED INDEBTEDNESS
SCHEDULE 7.2.1.2
— PERMITTED INDEBTEDNESS (SUBSIDIARIES)
SCHEDULE 7.2.3
— RESTRICTIONS ON DIVIDENDS
EXHIBITS
— GUARANTY AGREEMENT
— REVOLVING CREDIT NOTE
— SWING LOAN NOTE
EXHIBIT 2.4.1
— LOAN REQUEST
EXHIBIT 2.4.2
— SWING LOAN REQUEST
EXHIBIT 7.3.3
— QUARTERLY COMPLIANCE CERTIFICATE
vi
THIS SECOND AMENDED AND RESTATED CREDIT AGREEMENT (as hereafter amended, the
“Agreement”) is dated as of May 23, 2012 and is made by and among RTI
INTERNATIONAL METALS, INC., an Ohio corporation (the “Borrower”), each of the
WHEREAS, the Borrower, various financial institutions and PNC Bank, National
Association (as successor to National City Bank), as administrative agent for
such various financial institutions, entered into that certain First Amended and
Restated Credit Agreement, dated as of September 8, 2008 (as amended prior to
WHEREAS, the Borrower has requested the Lenders amend and restate the Existing
Credit Agreement in order to provide a revolving credit facility to the Borrower
00/100 Dollars ($150,000,000.00); and
WHEREAS, the Administrative Agent and the Lenders are willing to amend and
restate the Existing Credit Agreement in order to provide such credit upon the
as follows:
1. CERTAIN DEFINITIONS
1.1 Certain Definitions.
Administrative Agent shall have the meaning specified in the Preamble hereof.
Affiliate shall mean with respect to any Person, another Person that directly,
Agreement shall have the meaning specified in the Preamble hereof.
replaced).
the Leverage Ratio then in effect according to the pricing grid on
Audited Financial Statements means the audited consolidated balance sheet of the
Authorized Officer shall mean, the chief executive officer, president, chief
financial officer, senior vice president of finance and administration,
assistant treasurer or treasurer of a Loan Party, acting singly or any officer
designated by any such Loan Party. Any document delivered hereunder that is
signed by an Authorized Officer of a Loan Party shall be conclusively presumed
action on the part of such Loan Party and such Authorized Officer shall be
conclusively presumed to have acted on behalf of such Loan Party. The Borrower
- 2 -
Available Amount of any Letter of Credit means, at any time, the maximum amount
available to be drawn under such Letter of Credit at such time (assuming the
interest at the rate and under the terms set forth in either Section 3.1.1(i)
Borrower shall have the meaning specified in the Preamble hereof.
Borrowing Tranche.
the Letter of Credit Obligations, cash or deposit account balances pursuant to
documentation satisfactory to Administrative Agent and each Issuing Lender
Administrative Agent.
Cash Collateralized Letter of Credit or Cash Collateralized Letters of Credit
shall mean, singularly or collectively, as the context may require, any Letter
of Credit, with respect to which the Borrower, at its sole discretion, has
deposited with the Issuing Lender on behalf of the Lenders in same day funds at
the Issuing Lender’s office designated by the Issuing Lender, for deposit in the
Pre-Default L/C Cash Collateral Account, an amount equal to the applicable
outstanding Letter of Credit issued by the Issuing Lender which are to be Cash
Collateralized Letters of Credit.
- 3 -
Cash Equivalents means any of the following types of investments, to the extent
owned by the Borrower or its Domestic Subsidiaries free and clear of all Liens,
States Government or any agency instrumentality thereof having maturities of not
more than six months from the date of acquisition, (ii) time deposits,
certificates of deposit and eurodollar time deposits with maturities of not more
than six months from the date of acquisition, bankers’ acceptances with
maturities not exceeding six months from the date of acquisition and overnight
bank deposits, in each case with any Lender or with any domestic commercial bank
having capital and surplus in excess of Five Hundred Million and 00/100 Dollars
($500,000,000.00), (iii) repurchase obligations with a term of not more than
thirty (30) days for underlying securities of any of the types described in
clauses (i) or (ii) and entered into with any bank meeting the qualifications
specified in clause (ii) above, (iv) commercial paper maturing in one hundred
eighty (180) days or less rated not lower than “A-1” by S&P or “P-1” by Moody’s
on the date of acquisition, (v) variable rate demand notes whether recorded as
cash equivalents or short-term investments under GAAP and rated not lower than
A-1 by S&P or P-1 by Moody’s on the date of acquisition and credit enhanced
either by a letter of credit from a bank meeting the qualifications specified in
clause (ii) above or by bond insurance and (vi) shares of any money market fund
that (i) has at least eighty percent (80%) of its assets invested continuously
in the types of investments referred to in clauses (i), (ii), (iii) and
(iv) above, (ii) has net assets of not less than Five Hundred Million and 00/100
Dollars ($500,000,000.00.) and (iii) is rated at least “AAA” by S&P and, if
rated by Moody’s, “Aaa” by Moody’s.
by any Official Body; provided, that notwithstanding anything herein to the
implemented.
which shall be May 23, 2012.
- 4 -
business.
Fees].
Compensation and Benefit Plan shall mean, with respect to any Person, any bonus,
employee stock ownership, stock bonus, stock purchase, change in control,
retention, restricted stock, stock option, employment, termination, severance,
compensation, medical, health or other compensation or benefit plan, including,
without limitation, each “employee benefit plan” within the meaning of
Section 3(3) of ERISA, that covers employees or former employees, or directors
or former directors of such Person or any of its Subsidiaries, or to which
contributions are made or otherwise required to be made, by such Person or any
of its Subsidiaries, together with any trust agreement or insurance contract
forming a part of such Compensation and Benefit Plan.
Consolidated Cash Interest Expense for any period of determination shall mean
the total cash interest paid of the Borrower and its Subsidiaries determined on
Consolidated EBITDA for any period of determination shall mean the sum (without
duplication) of (a) Consolidated Net Income (or loss) (excluding extraordinary
gains or losses including, without limitation, those items created by mandated
changes in accounting treatment), for such period, plus, (b) without duplication
and to the extent deducted in determining such Consolidated Net Income, the sum
for such period determined, and (iii) depreciation and amortization expense for
such period, all determined on a consolidated basis for each such item in
accordance with GAAP; (iv) all other non-cash charges (including impairment
charges with respect to good will and other intangibles but excluding any impact
(whether positive or negative and whether cash or non-cash) of LIFO valuation
methodology) and expenses (including stock based compensation) of the Borrower
(v) charges, expenses and fees incurred in connection with this Agreement and
the Loans, (vi) non-recurring charges, fees and expenses incurred in connection
with acquisitions, in an aggregate amount not to exceed $10,000,000 in any
calendar year and minus, to the extent included in determining such consolidated
net income, any non-cash income or non-cash gains, all as determined on a
consolidated basis in accordance with GAAP, provided, however, that for the
purposes of this definition, with respect to a business acquired, Consolidated
- 5 -
accordance with GAAP as if the Acquisition had been consummated at the beginning
of such period and provided, further, that for the purposes of this definition,
with respect to a business or assets disposed of, Consolidated EBITDA shall be
period.
Consolidated Net Income for any period of determination shall mean net income
for the Borrower and the Subsidiaries for such period determined on a
Consolidated Net Indebtedness as of any date of determination shall mean
Consolidated Total Indebtedness minus cash and Cash Equivalents of the Borrower
and its Domestic Subsidiaries in excess of Fifty Million and 00/100 Dollars
Consolidated Net Tangible Assets as of any date of determination shall mean the
total assets less all Intangible Assets appearing on the consolidated balance
sheet of the Borrower as of the end of the most recently concluded fiscal
Consolidated Total Indebtedness as of any date of determination shall mean any
and all Indebtedness of the Borrower and its Subsidiaries, excluding
Indebtedness described in item (iv) of the definition of Indebtedness, in each
case determined and consolidated in accordance with GAAP.
Convertible Notes shall mean the Borrower’s 3.000% Convertible Senior Notes due
made a public statement to the effect, that it does
- 6 -
two Business Days after request by the Administrative Agent, acting in good
of a Bankruptcy Event or (e) has failed at any time to comply with the
provisions of Section 4.3 with respect to purchasing participations from the
Domestic Subsidiary shall mean any Subsidiary of the Borrower organized under
the laws of (i) any State of the United States or the District of Columbia or
(ii) any commonwealth, territory or possession of the United States.
Reimbursement].
Environmental Laws shall mean any applicable Law (including common law) relating
to: (a) pollution; (b) the protection of the environment (including air, water,
soil, subsurface strata and natural resources) or public health and safety; and
(c) the regulation of the generation, use, storage, handling, transportation,
treatment, release, remediation or disposal of Hazardous Substances.
- 7 -
time in effect.
regulations thereunder) with respect to a Pension Plan, other than an event for
which PBGC regulations waive reporting; (b) a withdrawal by Borrower or any
Revenue Code.
Taxes].
- 8 -
Existing Credit Agreement shall have the meaning specified in the Recitals
hereof.
Existing Letters of Credit shall have the meaning specified in Section 2.8.1.
May 23, 2017.
Financial Officer of a Person shall mean the chief financial officer, principal
accounting officer, treasurer or controller of such Person or any officer having
substantially the same position for such Person.
jurisdiction.
- 9 -
Foreign Subsidiary shall mean each Subsidiary which is not a Domestic
Subsidiary.
amounts.
Guarantor shall mean separately, and Guarantors shall mean collectively, each of
the parties to this Agreement which is designated as a “Guarantor” on the
signature page hereof and each other Person which joins this Agreement as a
Guarantor after the date hereof pursuant to Section 10.13 [Joinder].
Guarantor Supplement shall mean a joinder by a Person as a Guarantor under the
Loan Documents in the form of Exhibit B to the Guaranty Agreement.
in effect guaranteeing any liability or obligation of any other Person in
connection with Indebtedness for borrowed money.
Guaranty Agreement shall mean, singularly or collectively, as the context may
require, the Second Amended and Restated Guaranty and Suretyship Agreement in
substantially the form of Exhibit 1.1(G) executed and delivered to the Agent for
Hazardous Substance shall mean any chemical, material or substance that is
defined as harmful to human health, the environment, or natural resources by any
Environmental Law, including without limitation, petroleum, petroleum products,
asbestos, and asbestos-containing materials.
Hedging Agreement shall mean any interest rate protection agreement, foreign
puts and calls on any of the foregoing and with respect to equity securities.
Increasing Lender shall have the meaning specified in Section 2.11 [Increasing
letter of credit agreement (excluding Cash Collateralized Letters of Credit but
only to the extent of the amount of the same day funds held in the Pre-Default
L/C Cash Collateral Account at the applicable time of determination) (iv) net
obligations under any currency swap
- 10 -
rate management device, (v) any other transaction (including forward sale or
finance its operations or capital requirements (but not including a)
performance/surety bonds and custom bonds or b) trade payables and accrued
by a promissory note, or other evidence of indebtedness and which are not more
borrowed money.
provided further that the annual budget delivered pursuant to Section 7.3.4.6(i)
and all forecasts delivered by any Loan Party to the Administrative Agent, any
Lender or any Issuing Lender shall be deemed to be confidential whether or not
Intangible Assets as of any date of determination shall mean the amount (if any)
stated under the heading “Goodwill and Other Intangible assets, net” or under
any other heading relating to intangible assets separately listed, in each case,
on the face of a balance sheet of the Borrower prepared on a consolidated basis
Interest Coverage Ratio shall mean, as of the end of any fiscal quarter of the
Borrower, the ratio of (A) Consolidated EBITDA for the four (4) consecutive
fiscal quarters ending on such date, to (B) Consolidated Cash Interest Expense
for the four (4) consecutive fiscal quarters ending on such date.
- 11 -
hereunder.
L/C Cash Collateral Account means, as applicable, either (i) a Pre-Default L/C
Cash Collateral Account; or (ii) a Post-Default Cash Collateral L/C Account.
L/C Cash Collateral Account Collateral has the meaning specified in
Section 8.2.5(ii).
L/C Cash Collateral Account Investments has the meaning specified in
Section 8.2.5(iii).
L/C Cash Collateral Account Obligations has the meaning specified in
Section 8.2.5(v).
Lender Provided Hedging Agreement shall mean a Hedging Agreement which is
- 12 -
Obligation is owed.
Leverage Ratio shall mean, as of the end of any fiscal quarter of the Borrower,
the ratio of (A) Consolidated Net Indebtedness as of such date, to
(B) Consolidated EBITDA for the four (4) consecutive fiscal quarters ending on
such date.
- 13 -
LIBOR Rate =
manifest error.
Liabilities”).
Lien shall mean any security interest, lien (statutory or other), mortgage,
retention agreement).
Liquidity shall mean the sum of (i) Unrestricted Cash and (ii) Undrawn
Availability.
Guaranty Agreement, each Pledge Agreement, the Notes and any other instruments,
Material Adverse Change shall mean a material adverse change in the
(a) business, financial condition or operations of the Borrower and its
Subsidiaries taken as a whole, (b) ability of each Loan Party to perform any of
its obligations under any Loan Document to which it is a party, or (c) rights or
- 14 -
Material Subsidiary shall mean RMI Titanium Company, Extrusion Technology
Corporation of America, RTI Finance Corp., RTI Martinsville, Inc., RTI-Claro,
Inc., Remmele Engineering, Inc., REI Medical, Inc. and each other Subsidiary of
the Borrower which at any time has five percent (5%) or more of the consolidated
Moody’s shall mean Moody’s Investors Service, Inc. and any successor thereto.
New Lender shall have the meaning specified in Section 2.11 [Increasing Lenders
provided for under such Loan Documents, (ii) any Lender Provided Hedging
- 15 -
other Loan Document.
Obligations hereunder (other than contingent indemnification obligations),
termination of the Commitments and expiration or termination of all Letters of
Credit.
course of business and which are not yet due and payable, or if due and payable
(a) are being contested in good faith and by appropriate and lawful proceedings
diligently conducted, (b) for which such reserves or other appropriate
provisions, if any, as shall be required by GAAP shall have been made and
(c) which shall be paid in accordance with the terms of any final judgments or
orders relating thereto within thirty (30) days after the entry of such
judgments or orders;
- 16 -
social security programs or similar programs or to secure liability to insurance
carriers under insurance or self insurance agreements or arrangement;
(iii) Liens of mechanics, materialmen, warehousemen, carrier or other like
payments that are not yet due and payable or in default, or if such Liens are
due and payable, (a) are being contested in good faith and by appropriate and
lawful proceedings diligently conducted, (b) for which such reserves or other
appropriate provisions, if any, as required by GAAP shall have been made and
judgments or orders;
(iv) Pledges, bonds or deposits made in the ordinary course of business to
borrowed money) or leases, not in excess of the aggregate amounts due thereunder
(or a margin in excess thereof as required under any tri-party repurchase
agreement), or to secure statutory obligations, or surety, appeal, indemnity,
performance or other similar bonds required in the ordinary course business;
(v) (a) Encumbrances consisting of zoning restrictions, easements,
rights-of-way, or other restrictions on the use of real property, (b) defects in
title to real property, and (c) Liens, encumbrances and title defects affecting
real property not known by the Borrower or a Subsidiary, as applicable, and not
discoverable by a search of the public records, none of which materially impairs
the use of such property;
(vi) (a) Liens on assets of a Person which is merged into or acquired by the
Borrower or a Subsidiary of the Borrower on or after the date this Agreement,
and (b) Liens on assets acquired after the date of this Agreement, provided that
(A) such Liens existed at the time of such merger or acquisition and were not
created in anticipation thereof, (B) no such Lien is spread to cover any other
property or assets of the Borrower or any Subsidiary of the Borrower; and
(C) the principal amount of Indebtedness secured thereby is not increased from
the amount outstanding immediately prior to such merger or acquisition;
(vii) Liens created by or resulting from any litigation or legal proceedings
which are currently being contested in good faith by appropriate and lawful
made and Liens arising out of judgments or orders for the payment of money which
(viii) Liens and security interests in favor of the Administrative Agent for the
Lender Provided Hedging Agreements and Other Lender Provided Financial Services
Obligations);
- 17 -
(x) Liens placed upon fixed assets or equipment hereafter acquired, in each case
to secure all or a portion of the purchase price thereof, provided that any such
Lien shall not encumber any other property of the Borrower or any Subsidiary;
(xi) Other Liens incidental to the conduct of the Borrower’s or any Subsidiary’s
Borrower’s or any Subsidiary’s property or assets or which do not materially
impair the use thereof in the operation of the Borrower’s business; and
(xii) Other Liens securing Indebtedness not exceeding ten percent (10%) of the
Consolidated Net Tangible Assets and not encumbering the Pledged Equity.
other entity.
Pledge Agreement or Pledge Agreements shall mean, singularly or collectively as
the context may require, (i) the Second Amended and Restated Negative Pledge and
Pledge Agreement, dated as of the Closing Date, by the Borrower in favor of the
Administrative Agent with respect to the capital stock of RTI-Claro, Inc.,
(ii) the Third Amended and Restated Equity Pledge Agreement, dated as of the
Closing Date, by the Borrower in favor of the Administrative Agent with respect
to the capital stock of RTI-Claro, Inc., and (iii) any other pledge agreement
executed from time to time by a in favor of the Administrative Agent with
respect to the capital stock of any Foreign Subsidiary, in form and substance
Pledged Equity shall mean, collectively, all capital stock of any Foreign
Subsidiary which may from time to time be pledged to the Administrative Agent
- 18 -
Post-Default L/C Cash Collateral Account means, at any time upon the occurrence
and during the continuance of an Event of Default an interest bearing account,
either automatically converted from a Pre-Default L/C Cash Collateral Account or
otherwise established in accordance with the terms and provisions of
Section 8.2.5, with the Issuing Lender at its address designated in Section 10.5
in the name of the Borrower but in connection with which the Issuing Lender
shall be the sole entitlement holder or customer.
Pre-Default L/C Cash Collateral Account means, so long as no Event of Default
has occurred and is continuing, an interest bearing account, established at the
request of the Borrower in connection with any Cash Collateralized Letter of
Credit, with the Issuing Lender at its address designated in Section 10.5 in the
name of the Borrower, and with respect to which the Borrower hereby pledges and
assigns and grants to the Issuing Lender on behalf of itself and of the Lenders
a security interest in such Pre-Default L/C Cash Collateral Account and all cash
held therein, all interest and proceeds of any and all of the foregoing which
account may be closed or from which account assets may be withdrawn by the
Borrower; provided, however, upon the occurrence and during the continuation of
an Event of Default, any Pre-Default L/C Cash Collateral Account shall
automatically be deemed to be a Post-Default L/C Cash Collateral Account and
such account and all assets held therein shall become subject to the terms and
provisions of Section 8.2.5 without further act of the Administrative Agent, the
Issuing Lender or any Lender
announced.
Projections].
mean the percentage of the aggregate
- 19 -
Commitments (disregarding any Defaulting Lender’s Commitment) represented by
Ratable Share shall be determined based upon the Commitments (excluding the
assignments.
Register shall have the meaning specified in Section 10.8.3 [Register].
Required Lenders shall mean
Lender) having more than fifty percent (50%) of the aggregate amount of the
- 20 -
Obligations.
elects to effect settlement pursuant Section 4.10 [Settlement Date Procedures].
liability.
aggregate principal amount up to Fifteen Million and 00/100 Dollars
- 21 -
or in part.
thereto.
Unrestricted Cash shall mean cash of the Borrower and its Domestic Subsidiaries
which is unrestricted, accessible and on deposit in an account of the Borrower
1.2 Construction.
- 22 -
definition of any accounting term used in Section 7.2 shall have the meaning
hereof applied on a basis consistent with those used in preparing the Audited
Financial Statements referred to in Section 5.1.6(i) [Historical Statements].
Parties shall provide to the Administrative Agent, when they delivers their
financial statements pursuant to Section 7.3.1 [Quarterly Financial Statements]
and 7.3.2 [Annual Financial Statements] of this Agreement, such reconciliation
such Loan (i) the aggregate amount of
- 23 -
Swing Loan Commitment, provided that after giving effect to such Loan, the
Section 2.1.2.
2.3 Commitment Fees.
- 24 -
Exhibit 2.4.1 or a request by telephone immediately confirmed in writing by
(x) integral multiples of One Million and 00/100 Dollars ($1,000,000.00) and not
less than Two Million and 00/100 Dollars ($2,000,000.00) for each Borrowing
Tranche under the LIBOR Rate Option, and (y) integral multiples of One Hundred
Thousand and 00/100 Dollars ($100,000.00) and not less than Five Hundred
Thousand and 00/100 Dollars ($500,000.00) for each Borrowing Tranche under the
Base Rate Option.
therefor substantially in the form of Exhibit 2.4.2 hereto or a request by
principal amount of such Swing Loan, which shall be not less than One Hundred
Thousand and 00/100 Dollars ($100,000.00).
- 25 -
Swing Loans.
Lender shall be subject to the repayment obligation in Section 2.5.2
2.5.3 Making Swing Loans.
Swing Loan Request pursuant to Section 2.4.2, [Swing Loan Requests] fund such
the Principal Office prior to 4:00 o’clock p.m. on the Borrowing Date.
- 26 -
notice from PNC.
2.5.6 Swing Loans Under Cash Management Agreements.
Section 2.5.3 [Making Swing Loans], without the requirement for a specific
request from the Borrower pursuant to Section 2.4.2 [Swing Loan Requests], PNC
relating to the Borrower’s deposit, sweep and other accounts at such Swing Loan
investment of the Borrower’s cash assets as in effect from time to time (the
“Cash Management Agreements”) to the extent of the daily aggregate net negative
balance in the Borrower’s accounts which are subject to the provisions of the
Cash Management Agreements. Swing Loans made pursuant to this Section 2.5.6 in
amount set forth in Section 2.4.2 [Swing Loan Requests], (iii) be payable by the
- 27 -
subject to each Lender’s obligation pursuant to Section 2.5.5 [Borrowings to
Section 2.
2.6 Notes.
with interest thereon, shall be evidenced by a revolving credit Note, a swing
Note and a term Note, dated the Closing Date payable to the order of such Lender
The Letters of Credit and the proceeds of the Loans shall be used (a) to provide
working capital to the Borrower, (b) for general corporate purposes of the
Borrower, including without limitation, Permitted Acquisitions and costs and
expenses incurred in connection therewith, (c) costs and expenses associated
with the Closing and (d) to refinance the Convertible Notes.
2.8.1 Issuance of Letters of Credit.
letter of credit (each, together with each Existing Letter of Credit, a “Letter
of Credit”) on behalf of itself or a Subsidiary of the Borrower, or the
such other Subsidiary deliver to the Issuing Lender (with a copy to the
Credit shall be a Standby Letter of Credit (and may not be a Commercial Letter
of Credit). Promptly after receipt of any letter of credit application, the
any Lender, Administrative Agent or the Borrower or any Subsidiary of the
Borrower, at least one day prior to the requested date of issuance, amendment or
each Letter of Credit shall in no event expire later than the Expiration Date
unless Borrower has Cash Collateralized such Letter of Credit in accordance with
Section 2.8.11, and provided further that in no event shall (i) the Letter of
Credit Obligations exceed, at any one time, Forty Million and
- 28 -
00/100 Dollars ($40,000,000.00) (the “Letter of Credit Sublimit”) or (ii) the
Section 6 [Conditions of Lending and Issuance of Letters of Credit] after giving
of such Letter of Credit or amendment. As of the date hereof, those letters of
credit set forth on Schedule 2.8.1 attached hereto and made a part hereof, which
are outstanding on the date hereof (the “Existing Letters of Credit”), are
hereby deemed to be Letters of Credit issued and outstanding hereunder.
2.8.2 Letter of Credit Fees.
Issuing Lender’s sole account the Issuing Lender’s then in effect customary fees
2.8.3 Disbursements, Reimbursement.
drawing, respectively.
be
- 29 -
Lender pursuant to this Section 2.8.3.1 may be oral if immediately confirmed in
Section 2.8.3 [Disbursement; Reimbursement]) each be deemed to have made a
for the account of the Issuing Lender pursuant to Section 2.8.3 [Disbursements,
Lender in satisfaction of its participation obligation under this Section 2.8.3.
- 30 -
time to time.
2.8.5 Documentation.
2.8.7 Nature of Participation and Reimbursement Obligations.
- 31 -
notice;
- 32 -
thereto;
any Loan Party;
2.8.8 Indemnity.
2.8.9 Liability for Acts and Omissions.
of any such Letter of Credit, or any other party
- 33 -
Lender’s or its Affiliates rights or powers hereunder. Nothing in the preceding
Credit.
faith and in the absence of gross negligence, shall not put the Issuing Lender
- 34 -
2.8.10 Issuing Lender Reporting Requirements.
2.8.11 Cash Collateral.
A Letter of Credit may expire after the Expiration Date only so long as, no
later than thirty (30) days prior to the Expiration Date, the Borrower shall
have Cash Collateralized the then outstanding amount of all Letter of Credit
Obligations in respect of such Letter of Credit. Borrower hereby grants to
Administrative Agent, for the benefit of each Issuing Lender and the Lenders, a
security interest in all cash collateral pledged pursuant to this Section or
2.9 Defaulting Lenders.
time;
- 35 -
under Section 2.8.2 with respect to such Defaulting Lender’s Letter of Credit
Borrower in accordance with Section 2.9(iii), and participating interests in any
Ratable Share.
- 36 -
Revolving Credit Commitments or from time to time permanently reduce the
partial reduction shall be in an aggregate amount of Two Million and 00/100
Dollars ($2,000,000.00) or any whole multiple of One Million and 00/100 Dollars
($1,000,000.00) in excess thereof, and (iii) the Borrower shall not terminate or
reduce the Revolving Credit Commitments if, after giving effect thereto and to
any concurrent prepayments hereunder, the Revolving Facility Usage would exceed
the Revolving Credit Commitments. The Administrative Agent will promptly notify
the Lenders of any such notice of termination or reduction of the Revolving
Credit Commitments. Any reduction of the Revolving Credit Commitments shall be
applied to the Commitment of each Lender according to its Ratable Share. All
(i) Increasing Lenders and New Lenders. The Borrower may, at any time but in any
event not more than once in any calendar year prior to the Expiration Date,
(A) No Obligation to Increase. No current Lender shall be obligated to increase
Lender.
(C) Aggregate Revolving Credit Commitments. After giving effect to such
increase, the total Revolving Credit Commitments shall not exceed Two Hundred
Fifty Million and 00/100 Dollars ($250,000,000.00).
(D) Minimum Increase. The amount of any increase to the aggregate Revolving
Credit Commitments requested pursuant to this Section 2.11 shall be at least Ten
Million and 00/100 Dollars ($10,000,000.00) or an integral multiple of Five
Million and 00/100 Dollars ($5,000,000.00) in excess thereof.
- 37 -
(E) Resolutions; Opinion. The Loan Parties shall deliver to the Administrative
of their corporate secretaries (or sole member or manager, if applicable) with
(which may be in-house counsel) addressed to the Administrative Agent and the
(F) Notes. The Borrower shall execute and deliver (1) to each Increasing Lender
(G) Approval of New Lenders. Any New Lender shall be subject to the approval of
the Administrative Agent and the Borrower, in each instance not to be
unreasonably withheld.
(H) Increasing Lenders. Each Increasing Lender shall confirm its agreement to
delivered to the Administrative Agent on or before the effective date of such
increase.
(I) New Lenders—Joinder. Each New Lender shall execute a lender joinder in form
and substance satisfactory to the Administrative Agent pursuant to which such
lender joinder.
subject to the Borrower’s indemnity obligations under Section 4.9 [Indemnity];
Advances.
- 38 -
3. INTEREST RATES
among all of the Loans and provided further that if an Event of Default exists
Rate Option for any Loans and the Required Lenders may demand that all existing
Borrower to pay any indemnity under Section 4.9 [Indemnity] in connection with
3.1.1 Revolving Credit Interest Rate Options; Swing Line Interest Rate.
Applicable Margin.
Subject to Section 3.3 [Interest After Default], only the Base Rate Option
applicable to Revolving Credit Loans shall apply to the Swing Loans (or such
other rate as mutually agreed to between the Borrower and PNC.
3.1.2 Rate Quotations.
- 39 -
3.2 Interest Periods.
Two Million and 00/100 Dollars ($2,000,000.00); and
3.2.2 Renewals.
day.
applicable pursuant to Section 2.8.2 [Letter of Credit Fees] or Section 3.1
(2.00%) per annum;
3.3.2 Other Obligations.
Revolving Credit Base Rate Option plus an additional two percent (2.00%) per
in full; and
3.3.3 Acknowledgment.
- 40 -
Available.
3.4.1 Unascertainable.
or
eurodollar market,
Agent’s or such
- 41 -
Borrower’s indemnification Obligations under Section 4.9 [Indemnity], as to any
date.
have converted such Borrowing Tranche to the LIBOR Rate Option for a one
(1) Month Interest Period, commencing upon the last day of the existing Interest
Period.
4. PAYMENTS
4.1 Payments.
- 42 -
excluding the Administrative Agent’s Fee and the Issuing Lender’s fronting fee)
and except as provided in Section 3.4.3 [Administrative Agent’s and Lender’s
Unascertainable; Etc.], 4.6.2 [Replacement of a Lender] or 4.7 [Increased
accordance with the amount of principal, interest, Commitment Fees and Letter of
Loans].
provided that:
- 43 -
interbank compensation.
also on the 90th day of such Interest Period. Interest on the principal amount
4.6 Voluntary Prepayments.
Section 4.6.2 [Replacement of a Lender] below, in Section 4.7 [Increased Costs]
and Section 4.9 [Indemnity]). Whenever the Borrower desires to prepay any part
to be made;
- 44 -
applies; and
the lesser of (i) the Revolving Facility Usage or (ii) One Hundred Thousand and
00/100 Dollars ($100,000.00) for any Swing Loan or Two Million and 00/100
Dollars ($2,000,000.00) for any Revolving Credit Loan.
allocations in clause (i) above and in the preceding sentence, first to Loans to
Unascertainable, Etc.], (ii) requests compensation under Section 4.7 [Increased
any Official Body for the account of any Lender pursuant to Section 4.8 [Taxes],
Lender referred to in Section 10.1 [Modifications, Amendments or Waivers], then
in, and consents required by, Section 10.8 [Successors and Assigns]), all of its
the other Loan Documents (including any amounts under Section 4.9 [Indemnity])
under Section 4.7.1 [Increased Costs Generally] or payments required to be made
pursuant to Section 4.8 [Taxes], such assignment will result in a reduction in
- 45 -
cease to apply.
4.7 Increased Costs.
Lender;
participation therein;
Lender of making, converting to, continuing or maintaining any Loan under the
LIBOR Rate Option (or of maintaining its obligation to make any such Loan), or
Lender or the Issuing Lender, the Borrower will pay to such Lender or the
4.7.2 Capital Requirements.
the Issuing Lender’s holding company, if any, as a
- 46 -
of New Loans.
company, as the case may be, as specified in Sections 4.7.1 [Increased Costs
Generally] or 4.7.2 [Capital Requirements] and delivered to the Borrower shall
4.8 Taxes.
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4.8.2 Payment of Other Taxes by the Borrower.
Without limiting the provisions of Section 4.8.1 [Payments Free of Taxes] above,
4.8.3 Indemnification by the Borrower.
Issuing Lender, within thirty (30) days after demand therefor, for the full
error.
Administrative Agent.
or the Administrative Agent, shall deliver such other
- 48 -
following is applicable:
Foreign Lender.
4.9 Indemnity.
In addition to the compensation or payments required by Section 4.7 [Increased
Costs]or Section 4.8 [Taxes], the Borrower shall indemnify each Lender against
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Credit Loan Requests; Swing Loan Requests] or Section 3.2 [Interest Periods] or
Borrowing Dates for Revolving Credit Loans and on [Mandatory Prepayment Dates]
convenience, and nothing contained in this Section 4.10 shall relieve the
- 50 -
lawful power to own or lease its material properties and to engage in the
business it presently conducts or proposes to conduct in all material respects,
than Environmental Laws which are specifically addressed in Section 5.1.13
material properties, assets and other rights which it purports to own or lease
clear of all Liens and encumbrances except Permitted Liens and such Liens that,
individually or in the aggregate would not be reasonably expected to result in a
Material Adverse Change. No Event of Default exists or is continuing.
Schedule 5.1.2, as updated from time to time by the Borrower pursuant to
Section 7.1.8, states the name of each of the Borrower’s Subsidiaries, its
jurisdiction of organization and the percentage of equity interests in such
of the Borrower has good and marketable title to all of the Subsidiary Equity
than Permitted Liens) and all such Subsidiary Equity Interests have been validly
issued, fully paid and nonassessable. None of the Loan Parties or Subsidiaries
of any Loan Party is an “investment company” registered or required to be
The Subsidiaries executing this Agreement as Guarantors as of the Closing Date
constitute all the Material Subsidiaries of the Borrower which are Domestic
Subsidiaries. As of
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the Closing Date, (i) sixty-five percent (65%) of the capital stock of each
Material Subsidiary which is a Foreign Subsidiary of the Borrower has been
pledged to the Administrative Agent pursuant to a Pledge Agreement, or (ii) in
the case of any Material Subsidiary which is a Foreign Subsidiary but is owned
by a Foreign Subsidiary, sixty-five percent (65%) of the capital stock of the
first-tier Foreign Subsidiary which owns such Material Subsidiary which is a
Foreign Subsidiary has been pledged to the Administrative Agent pursuant to a
Pledge Agreement.
Liens granted under the Loan Documents and the Liens described in clause
(viii) or (xiii) of the definition of Permitted Liens). There is no default
or their Subsidiaries is bound by any contractual obligation, or subject to any
Documents, except for those consents, approvals, exemptions, orders,
authorizations, registrations or filings that have been obtained or made or
which the failure to obtain or make would not be reasonably expected to result,
individually or in the aggregate, in a Material Adverse Change or prevent,
materially delay or materially impair the ability of any Loan Party to perform
5.1.5 Litigation.
individually or in the aggregate
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may result in any Material Adverse Change. None of the Loan Parties or any
any decree of any Official Body which may result in any Material Adverse Change.
5.1.6 Financial Statements.
Agent copies of the Audited Financial Statements. The Audited Financial
and the results of operations for the fiscal period then ended and have been
prepared in accordance with GAAP consistently applied, subject (in the case of
footnotes.
Agent projected financial statements (including, without limitation, statements
of operations and cash flow together with a detailed explanation of the
assumptions used in preparing such projected financial statements) of the
Borrower and its Subsidiaries for the period from the Closing Date through
December 31, 2016 (including, without limitation, quarterly projected financial
statements through December 31, 2013) derived from various assumptions of the
Borrower’s management (the “Projections”). The Projections represent a
management. The Projections accurately reflect the approximate liabilities of
the Borrower and its Subsidiaries upon consummation of the transactions
contemplated hereby as of the Closing Date.
(iii) Accuracy of Financial Statements. As of the Closing Date, neither the
Audited Financial Statements or in the notes thereto, and except as disclosed
the Borrower or any Subsidiary of the Borrower which may cause a Material
Adverse Change. Since December 31, 2011, no Material Adverse Change has
occurred.
5.1.7 Margin Stock.
such amounts that more than twenty-five percent (25%) of the reasonable value of
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5.1.8 Full Disclosure.
5.1.9 Taxes.
All federal and other material tax returns required to have been filed with
actual conflict with the rights of others, except for any such failures to own
or possess and such conflicts, that individually or in the aggregate, would not
be reasonably expected to result in a Material Adverse Change.
5.1.11 Insurance.
5.1.12 ERISA Compliance.
currently being processed by the IRS with respect
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thereto and, to the best knowledge of Borrower, nothing has occurred which would
applicable plan year); (c) neither Borrower nor any ERISA Affiliate has
under Section 4007 of ERISA); (d) neither Borrower nor any ERISA Affiliate has
Multiemployer Plan; and (e) neither Borrower nor any ERISA Affiliate has engaged
5.1.13 Environmental Matters.
of its Subsidiaries is and has been in compliance with applicable Environmental
Laws except as disclosed on Schedule 5.1.13; provided that such matters so
disclosed could not in the aggregate result in a Material Adverse Change.
5.1.14 Solvency.
Before and after giving effect to the initial Loans hereunder, each of the Loan
Parties is Solvent.
5.1.15 Pledged Equity.
The Pledge Agreements create legal and valid, perfected first priority Liens on
the Pledged Equity.
5.1.16 Pari Passu.
The obligations of the Borrower under this Agreement and the Notes rank at least
except Indebtedness of the Borrower secured by Permitted Liens. The obligations
of each Guarantor under the Guaranty Agreement executed by such Guarantor rank
at least pari passu in priority of payment with all other Indebtedness of such
Guarantor, except Indebtedness of such Guarantor secured by Permitted Liens.
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6.1.1 Deliveries.
Administrative Agent;
Authorized Officer, together with, to the extent not previously delivered, the
original certificates evidencing the applicable ownership interests (if
applicable) of the Pledged Equity along with appropriate transfer powers
executed in blank;
(iv) Written opinions of (i) Buchanan Ingersoll & Rooney PC, special counsel to
the Loan Parties and (ii) Lavery, de Billy, S.E.N.C.R.L./L.L.P, special Quebec
counsel to the Loan Parties, each dated the Closing Date and as to such matters
(v) Evidence that adequate insurance, including flood insurance, if applicable,
required to be maintained under this Agreement is in full force and effect;
(vii) Satisfactory Lien search results with respect to each Loan Party;
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(viii) The Audited Financial Statements and the Projections;
(ix) Remmele Engineering, Inc.’s (i) audited financial statements, prepared in
accordance with GAAP, for the fiscal year ended December 31, 2010, and
(ii) unaudited internally prepared financial statements for the fiscal year
ended December 31, 2011;
(x) Evidence that the Loan Parties have received all regulatory approvals and
licenses necessary for the Loan Parties to effectuate the transactions hereunder
and under each other Loan Document; and
Document.
representations, warranties of the Loan Parties shall then be true and correct,
earlier date, (ii) no Event of Default or Potential Default shall have occurred
7. COVENANTS
covenants:
7.1 Affirmative Covenants.
Each Loan Party shall, and shall cause each of its Material Subsidiaries to,
liability company and its license or qualification and good standing in each
business makes such license or qualification necessary (except for such
jurisdictions in which such failure to be so licensed or qualified and in good
standing individually or in the aggregate would not result in a Material Adverse
Change), except as otherwise expressly permitted in Section 7.2.4 [Liquidations,
Mergers, Etc.].
- 57 -
assessments or charges, (i) are being contested in good faith and by appropriate
and lawful proceedings diligently conducted and for which such reserve or other
made and (ii) if not paid, could not reasonably be expected to result in a
Material Adverse Change.
customary, all as reasonably determined by the Administrative Agent.
7.1.5 Visitation Rights.
Each Loan Party shall, and shall cause each of its Subsidiaries to, except as
may otherwise be required or restricted by applicable Law, permit any of the
officers or authorized employees or representatives of the Administrative Agent
or any of the Lenders to visit and inspect any of its properties during normal
business hours and to examine and make excerpts from its books and records and
request, provided that (i) so long as an Event of Default has not occurred and
is continuing, the Administrative Agent shall provide the Borrower with
reasonable notice prior to any visit or inspection, (ii) each Lender shall
provide the Borrower and the Administrative Agent with reasonable notice prior
to any visit or inspection and (iii) neither a Loan Party nor any of its
Subsidiaries shall be required to provide information (a) in breach of
applicable Law, (b) that is subject to confidentiality obligations or (c) where
disclosure would affect attorney-client privilege. In the event any Lender
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that it shall not be deemed to be a violation of this Section 7.1.7 if any
7.1.8 New Material Subsidiaries.
Cause each Domestic Subsidiary that shall at any time after the Closing Date
become a Material Subsidiary to enter into a Guaranty Supplement no later than
thirty (30) days after such Domestic Subsidiary shall become a Material
Subsidiary, as determined at the end of each fiscal quarter of the Borrower;
provided, however, the Administrative Agent may release any Domestic Subsidiary
of its obligations as a Guarantor in the event the Administrative Agent makes
the reasonable determination that any such Domestic Subsidiary no longer
constitutes a Material Subsidiary. No later than forty-five (45) days after the
Borrower or such Domestic Subsidiary shall acquire or otherwise own, directly or
indirectly, after the Closing Date, any (i) Foreign Subsidiary which is a
Material Subsidiary or (ii) first-tier Foreign Subsidiary which owns a Foreign
Subsidiary which is a Material Subsidiary, in each case as determined at the end
of each fiscal quarter of the Borrower, enter into, or cause such Domestic
Subsidiary to enter into, a Pledge Agreement and deliver an opinion of counsel
reasonably satisfactory to the Administrative Agent in the jurisdiction of such
Foreign Subsidiary whose ownership interests are subject to such Pledge
Agreement with respect to the due authorization, enforceability and perfection
of such pledge. The Borrower shall provide by the end of each fiscal quarter, an
updated Schedule 5.1.2 to the extent necessary to maintain the accuracy of such
Schedule.
In connection and in accordance with the requirements set forth in the preceding
paragraph, the Borrower shall pledge or cause to be pledged, as applicable,
pursuant to a Pledge Agreement to the Administrative Agent (x) sixty-five
percent (65%) of the ownership interests of any Foreign Subsidiary which is a
Material Subsidiary which is owned directly by the Borrower or any Domestic
Subsidiary, and (y) sixty-five percent (65%) of the ownership
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interests of any first-tier Foreign Subsidiary which owns a Foreign Subsidiary
which is a Material Subsidiary. In the event that the Borrower and the Domestic
Subsidiaries contribute additional capital to any such Foreign Subsidiary after
the date of execution of the applicable Pledge Agreement which results in the
issuance of additional shares of such Foreign Subsidiary, then, at the election
of the Borrower: (i) the Borrower shall, within thirty (30) days after the end
of the fiscal quarter in which such contribution occurred, cause additional
ownership interests to be pledged to the Administrative Agent in order to
maintain a pledge in the amount of sixty-five percent (65%) of such Foreign
Subsidiary’s ownership interests, or (ii) in lieu thereof, the Borrower shall at
all times limit the amount of all loans, advances and investments made by the
Borrower and the Domestic Subsidiaries in Foreign Subsidiaries after the Closing
Date to an amount not in excess of Fifty Million and 00/100 Dollars
($50,000,000.00) in the aggregate at any one time. Notwithstanding the
foregoing, in no event shall additional shares of a pledged Foreign Subsidiary
be issued if such issuance would cause the amount of such Foreign Subsidiary’s
ownership interests pledged to the Administrative Agent to be less than or equal
to fifty percent (50%).
7.1.9 Transactions with Affiliates.
Conduct, and cause each of its Subsidiaries to conduct, all transactions with
any of its respective Affiliates upon fair and reasonable terms no less
favorable than such Loan Party or Subsidiary could obtain or could be entitled
to in a comparable arm’s-length transaction with a Person which is not an
Affiliate.
7.1.10 Anti-Terrorism Laws.
7.1.11 Further Assurances.
Upon the request of the Administrative Agent, each Loan Party shall, from time
to time, at its expense, do such other acts and things as the Administrative
time in order to exercise and enforce its rights and remedies hereunder.
7.2 Negative Covenants.
7.2.1 Indebtedness.
7.2.1.1 No Loan Party shall, at any time create, incur, assume or suffer to
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(ii) Existing Indebtedness as set forth on Schedule 7.2.1.1 (including any
thereof);
(iii) Indebtedness (including, without limitation, capitalized lease
obligations) secured by Liens described in clause (x) of the definition of
Permitted Liens in an aggregate principal amount not to exceed Twenty Million
and 00/100 Dollars ($20,000,000.00) at any one time outstanding;
(iv) Indebtedness of the Borrower to any Subsidiary or Indebtedness of any
(v) Indebtedness in respect of any Hedging Agreement with a Lender or any
Affiliate of a Lender entered into in the ordinary course of business to manage
foreign currency or interest rate risk for the Borrower or any Loan Party which
is entered into for hedging (rather than speculative) purposes;
(vi) Indebtedness scheduled to mature after the Expiration Date; and
(vii) Indebtedness that is convertible into equity interests of the Borrower,
issued either pursuant to public issuances or private placements, and whether or
not maturing prior to or after the Expiration Date; provided that the holders of
such Indebtedness have no right to cause such Indebtedness to be purchased,
redeemed or otherwise repaid (in whole or in part) in cash prior to the
Expiration Date,
time of the incurrence of such Indebtedness or would result from the incurrence
of such Indebtedness and (y) after giving effect to the incurrence of such
Indebtedness, on a pro forma basis as if such incurrence of such Indebtedness
had occurred on the first (1st) day of the twelve-month period ending on the
last day of the Borrower’s most recently completed fiscal quarter, the Borrower
shall be in compliance with the financial covenants set forth in Sections 7.2.10
and 7.2.11.
7.2.1.2 The Borrower shall not permit any of its Subsidiaries that is not a Loan
Party, at any time, to create, incur, assume or suffer to exist any
Indebtedness, except:
(i) Indebtedness of such Subsidiary to the Borrower or any other Subsidiary;
(ii) Existing Indebtedness as set forth on Schedule 7.2.1.2 (including any
thereof; and
(iii) Additional Indebtedness in an aggregate principal amount not to exceed
five percent (5%) of Consolidated Net Tangible Assets at any time outstanding,
and 7.2.11.
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7.2.2 Liens; Lien Covenants.
7.2.3 Dividends and Related Distributions.
stock, partnership interests or limited liability company interests on account
limited liability company interests, other than: (i) dividends and distributions
payable directly or indirectly to the Borrower, (ii) dividends and distributions
in connection with (x) share purchase programs of the Borrower, (y) employee
stock purchase programs of the Borrower and its Subsidiaries and (z) any
Compensation and Benefit Plan, and (iii) so long as no Event of Default or
Potential Default shall exist immediately prior to or after giving effect
thereto, dividends and distributions payable to any Subsidiary of the Borrower
and shareholders of the Borrower. Except as set forth in this Section 7.2.3 and
as set forth on Schedule 7.2.3, the Borrower shall not permit its Subsidiaries
to enter into or otherwise be bound by any agreement prohibiting or restricting
the payment of dividends or distributions to the Borrower.
7.2.4 Liquidations, Mergers, Consolidations, Acquisitions.
that:
(i) any Subsidiary of the Borrower may consolidate with or merge into the
Borrower or another Subsidiary of the Borrower, provided that if any such
consolidation or merger involves the Borrower, the Borrower shall survive such
consolidation or merger;
(ii) subject to Section 7.1.8, any Subsidiary of the Borrower may sell, lease
voluntary liquidation or otherwise) to the Borrower, a Guarantor or another
(iii) any Loan Party and any Subsidiary of a Loan Party may acquire, whether by
(a) if the Borrower is a party to any such Permitted Acquisition, the Borrower
is the surviving Person, (b) at the time of the Permitted
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Acquisition, no Event of Default shall have occurred and be continuing or be
caused by such consolidation or merger or acquisition, (c) after giving effect
to such Permitted Acquisition, (A) any Domestic Subsidiary which becomes a
Material Subsidiary shall become a Guarantor in accordance with Section 10.13
[Joinder] and the Administrative Agent shall have received all documents and
other items required by Section 10.13 [Joinder], and (d) unless the Required
Lenders otherwise consent (such consent not to be unreasonably withheld or
delayed), the Permitted Acquisition shall not be contested by such Person or the
holders of its equity securities and shall be approved by such Person’s board of
7.2.5 Dispositions of Assets or Subsidiaries.
Excluding the payment of cash as consideration for assets purchased by, or
services rendered to, the Borrower or any Subsidiary, each of the Loan Parties
business;
such Subsidiary’s business;
(iii) subject to Section 7.1.8, any sale, transfer or lease of assets by any
Borrower or by the Borrower to any Subsidiary of the Borrower;
(iv) the sale or transfer of non-core distribution assets on or after the
Closing Date through and including May 31, 2013 having a book value of not more
than Fifty Million and 00/100 Dollars ($50,000,000.00); or
excepted pursuant to clauses (i) through (iv) above, which in any one sale,
transfer or lease of assets, or in any number of sales, transfers or leases of
assets occurring (a) in any consecutive twelve (12) month period involves the
sale, transfer or lease of assets having a book value (excluding the book value
of any Intangible Assets that are sold, transferred or leased) of not more than
ten percent (10%) of the Consolidated Net Tangible Assets and (b) during the
term of this Agreement involves the sale, transfer, or lease of assets having a
book value (excluding the book value of any Intangible Assets that are sold,
transferred or leased) of not more than twenty percent (20%) of the Consolidated
Net Tangible Assets (in each case, measured with respect to a series of sales,
transfers or leases of assets on the day of the first sale).
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to, engage in any business other than the manufacturing, engineering, machining,
forming, distributing and supplying of titanium, aluminum, exotic metals and
composites and any other business conducted by such Person on the Closing Date,
and activities related or incidental thereto, substantially as conducted and
business.
7.2.7 Fiscal Year.
change its fiscal year from the twelve-month period beginning January 1st and
ending December 31st.
The Borrower shall not, and shall not permit any Loan Party to, amend in any
respect its certificate or articles of incorporation or comparable governing
instruments without providing at least fifteen (15) days prior written notice to
the Administrative Agent and the Lenders and, in the event such change would be
materially adverse to the Lenders as determined by the Administrative Agent in
its sole but reasonable discretion, obtaining the prior written consent of the
Required Lenders.
7.2.9 Negative Pledge.
The Borrower shall not, and shall not permit any Subsidiary, to enter into or
or hereafter acquired, to secure the Obligations, other than (a) this Agreement
and the other Loan Documents, (b) with respect to a Subsidiary imposed pursuant
to an agreement that has been entered into in connection with a disposition
permitted under this Agreement of all or substantially all of the equity
interests or assets of such Subsidiary, (c) any agreements governing any
assets financed thereby and proceeds thereof), (d) customary provisions
restricting assignment of any licensing agreement (in which the Borrower or its
Subsidiaries are the licensee) or other contract entered into by the Borrower or
its Subsidiaries in the ordinary course of business, (e) with respect to any
Person becoming a Subsidiary pursuant to the terms of this Agreement after the
Closing Date, any agreement in effect at the time such Person becomes a
Subsidiary so long as such agreement was not entered into solely in
contemplation of such Person becoming a Subsidiary and any such prohibition only
applies to such Subsidiary, and (f) customary provisions restricting subletting,
governing any leasehold interests of the Borrower and its Subsidiaries.
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7.2.10 Maximum Leverage Ratio.
of each fiscal quarter of the Borrower, to be greater than 3.50 to 1.00.
7.2.11 Minimum Interest Coverage Ratio.
the end of each fiscal quarter of the Borrower, to be less than 2.00 to 1.00.
7.2.12 Minimum Liquidity.
In the event that any Convertible Notes are outstanding on the ninety-first
(91st) day prior to the maturity date of such Convertible Notes, then beginning
on such date and at all times thereafter until the Convertible Notes are paid in
full (including by means of conversion), the Borrower shall not permit Liquidity
to be less than Two Hundred Thirty Million and 00/100 Dollars ($230,000,000.00).
7.3 Reporting Requirements.
As soon as available and in any event within sixty (60) calendar days after the
end of each of the first three fiscal quarters in each fiscal year, financial
statements of the Borrower, consisting of a consolidated balance sheet as of the
or Financial Officer of the Borrower as having been prepared in accordance with
fiscal year.
Documents.
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7.3.3 Certificate of the Borrower.
Financial Statements] and 7.3.2 [Annual Financial Statements], a certificate
Officer, President or Financial Officer of the Borrower, in the form of
Exhibit 7.3.3.
7.3.4 Notices.
respect thereto.
any other Person against any Loan Party or Subsidiary of any Loan Party which if
7.3.4.3 Organizational Documents. Within the time limits set forth in
Section 7.2.8 [Changes in Organizational Documents], any amendment to the
future reliance.
7.3.4.6 Other Reports. Promptly (and, with respect to clause (i) below, within
the specific timeframe set forth therein) upon their becoming available to the
Borrower:
Borrower, to be supplied not later than forty-five (45) days after the
or special audit,
Commission,
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Information required to be delivered pursuant to Sections 7.3.1, 7.3.2 and
7.3.4.6(iii) shall be deemed to have been delivered on the date on which the
Borrower provides written notice to the Lenders that such information has been
posted on the Borrower’s website on the Internet at http://www.rtiintl.com/ or
at http://www.sec.gov; provided that such notice may be included in the
certificates delivered pursuant to Section 7.3.3; provided further that the
Borrower shall deliver paper copies of the information referred to in
Section 7.3.4.5 and that, if any Lender requests delivery thereof, the Borrower
shall deliver to such Lender paper copies of the information referred to in
Sections 7.3.1, 7.3.2 and 7.3.4.6(iii) within five (5) Business Days after
delivery is otherwise required hereunder.
8. DEFAULT
such payment becomes due in accordance with the terms hereof or (ii) any
any other amount owing hereunder (other than an amount referred to in clause
(i)) or under the other Loan Documents on the date on which such interest or
other amount becomes due in accordance with the terms hereof or thereof, and
covenant contained in Section 7.1.5 [Visitation Rights] or Section 7.2 [Negative
Covenants], and such default shall continue for a period of five (5) Business
Days;
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the earlier of (i) the date by which notice of such default would be required to
be given by the applicable Loan Party under this Agreement or such other Loan
Document and (ii) written notice from the Administrative Agent or any Lender to
the applicable Loan Party;
obligated as a borrower or guarantor in excess of Fifty Million and 00/100
Dollars ($50,000,000.00) in the aggregate, and such breach, default or event of
Any final judgments or orders for the payment of money in excess of Ten Million
and 00/100 Dollars ($10,000,000.00) in the aggregate shall be entered against
any Loan Party or any of its Subsidiaries by a court having jurisdiction in the
8.1.8 Proceedings Against Assets.
Any of the Loan Parties’ or any of their Subsidiaries’ assets (i) are attached,
seized, levied upon or subjected to a writ or distress warrant for an amount in
excess of Ten Million and 00/100 Dollars ($10,000,000.00) in the aggregate which
is not stayed, lifted or otherwise bonded within thirty (30) days thereafter; or
(ii) with a book value in excess of Ten Million and 00/100 Dollars
($10,000,000.00) in the aggregate come within the possession of any receiver,
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PBGC which could result in a Material Adverse Change, or (ii) the Borrower or
liability under Section 4201 of ERISA under a Multiemployer Plan which could
Securities and Exchange Commission under said Act) fifty percent (50%) or more
of the voting capital stock of the Borrower; or (ii) the occupation of a
Borrower by Persons who were not (a) directors of the Borrower on the date of
this Agreement, (b) nominated by the board of directors of the Borrower, or
(c) appointed by directors referred to in the preceding clauses (a) and (b).
8.1.11 Relief Proceedings.
Proceedings.
If an Event of Default specified under Sections 8.1.1 through 8.1.10 shall occur
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Obligations; and
If an Event of Default specified under Section 8.1.10 [Relief Proceedings] shall
and
8.2.4 Application of Proceeds.
as follows:
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Loan Parties under any of the Loan Documents, including advances made by the
Lenders or any one of them or the Administrative Agent for the reasonable
the Collateral, including advances for taxes, insurance, repairs and the like
and reasonable expenses incurred to sell or otherwise realize on, or prepare for
sale or other realization on, any of the Collateral;
of the other Loan Documents or agreements evidencing any Lender Provided Hedging
Agreement or Other Lender Provided Financial Services Obligations, whether of
principal, interest, fees, expenses or otherwise and to cash collateralize the
Cash Collateral Account.
(i) Upon (i) the occurrence and during the continuance of any Event of Default
and (ii) the declaration by the Lenders that the Loans are, or if the Loans
otherwise automatically become, due and payable pursuant to the provisions this
Section 8.2, the Issuing Lender may, irrespective of whether they are taking any
of the actions described in this Section 8.2 or otherwise, make demand upon the
Issuing Lender on behalf of the Lenders in same day funds at the Issuing
Lender’s office designated in such demand, for deposit in the Post-Default L/C
all outstanding Letters of Credit issued by the Issuing Lender. If at any time
the Issuing Lender determines that any funds held in the Post-Default L/C Cash
Person other than the Issuing Lender and the Lenders pursuant to this Agreement
Issuing Lender, pay to the Issuing Lender, as additional funds to be deposited
and held in the Post-Default L/C Cash Collateral Account, an amount equal to the
funds, if any, then held in the Post-Default L/C Cash Collateral Account that
the Issuing Lender determines to be free and clear of any such equal or prior
right and claim.
(ii) To the extent not otherwise automatically converted from a Pre-Default L/C
Cash Collateral Account in accordance with the terms and provisions of this
Agreement, the Borrower hereby authorizes the Issuing Lender to open at any time
Post-Default L/C Cash Collateral Account, and hereby pledges and assigns and
grants to the Issuing Lender on behalf of itself and of the Lenders a security
interest in the following collateral (the “L/C Cash Collateral Account
Collateral”):
- 71 -
(A) the Post-Default L/C Cash Collateral Account, all funds held therein and all
evidencing the investment of funds held therein,
(B) all L/C Cash Collateral Account Investments from time to time, and all
(C) all notes, certificates of deposit, deposit accounts, checks and other
instruments from time to time delivered to or otherwise possessed by the Issuing
Lender for or on behalf of the Borrower in substitution for or in addition to
(D) all interest, dividends, cash, instruments and other property from time to
(E) all proceeds of any and all of the foregoing L/C Cash Collateral Account
Collateral.
(iii) If requested by the Borrower, the Issuing Lender will, subject to the
provisions of clause (v) below, from time to time (a) invest amounts on deposit
in the Post-Default L/C Cash Collateral Account in such notes, certificates of
deposit and other debt instruments as the Borrower may select and the Issuing
Lender may approve and (b) invest interest paid on the notes, certificates of
deposit and other instruments referred to in clause (a) above, and reinvest
other proceeds of any such notes, certificates of deposit and other instruments
which may mature or be sold, in each case in such notes, certificates of deposit
and other debt instruments as the Borrower may select and the Issuing Lender may
approve (the notes, certificates of deposit and other instruments referred to in
clauses (a) and (b) above being collectively “L/C Cash Collateral Account
Investments”). Interest and proceeds that are not invested or reinvested in L/C
Cash Collateral Account Investments as provided above shall be deposited and
held in the Post-Default L/C Cash Collateral Account.
(iv) Upon such time as (a) the aggregate Available Amount of all Letters of
Credit is reduced to zero and such Letters of Credit are expired or terminated
by their terms and all amounts payable in respect thereof, including but not
limited to principal, interest, commissions, fees and expenses, have been paid
in full in cash, and (b) no Event of Default has occurred and is continuing
under this Agreement, the Issuing Lender will pay and release to the Borrower or
at its order (A) accrued interest due and payable on the L/C Cash Collateral
Account Investments and in the Post-Default L/C Cash Collateral Account, and
(B) the balance remaining in the Post-Default L/C Cash Collateral Account after
the application, if any, by the Issuing Lender of funds in the Post-Default L/C
Cash Collateral Account to the payment of amounts described in clause (a) of
this subsection (iv).
- 72 -
(v) (a) The Issuing Lender may, without notice to the Borrower except as
otherwise apply all or any part of the Post-Default L/C Cash Collateral Account
against the obligations of the Borrower in respect of Letters of Credit
thereof. The Issuing Lender agrees to notify the Borrower promptly after any
such set off and application, provided that the failure of any Issuing Lender to
(b) The Issuing Lender may also exercise in respect of the L/C Cash Collateral
Account Collateral, in addition to other rights and remedies provided for herein
default under the Uniform Commercial Code in effect in the Commonwealth of
Pennsylvania at that time (the “UCC”) (whether or not the UCC applies to the
affected L/C Cash Collateral Account Collateral), and may also, without notice
except as specified below, sell the L/C Cash Collateral Account Collateral or
Issuing Lender’s offices or elsewhere, for cash, on credit or for future
delivery, and upon such other terms as the Issuing Lender may deem commercially
shall constitute reasonable notification. No Issuing Lender shall be obligated
to make any sale of L/C Cash Collateral Account Collateral regardless of notice
of sale having been given. The Issuing Lender may adjourn any public or private
was so adjourned.
(c) Any cash held by any Issuing Lender as L/C Cash Collateral Account
Collateral and all cash proceeds received by any Issuing Lender in respect of
L/C Cash Collateral Account Collateral may, in the discretion of the Issuing
Lender, be held by the Issuing Lender as collateral for, and/or then or at any
time thereafter be applied in whole or in part by the Issuing Lender against,
all or any part of the L/C Cash Collateral Account Obligations in such order as
the Issuing Lender shall elect. Any surplus of such cash or cash proceeds held
by any Issuing Lender and remaining after payment in full of all the L/C Cash
Collateral Account Obligations shall be paid over to the Borrower or to
(vi) Upon the permanent reduction from time to time of the aggregate Available
Issuing Lender’s shall release to the Borrower amounts from the Post-Default L/C
provided that no Issuing Lender shall be obligated to reduce the funds or other
L/C Cash Collateral Account Collateral then held in the Post-Default L/C Cash
Collateral Account below that level that the Issuing Lender reasonably
rights or claims of any Persons other than the Issuing Lender.
(vii) In furtherance of the grant of the pledge and security interest pursuant
to this Section 8.2.5, the Borrower hereby agrees with the Administrative Agent
and the Issuing Lender that the Borrower shall give, execute, deliver, file
of the Administrative Agent and the Issuing Lender) to create, preserve, perfect
or validate any security interest granted pursuant hereto or to enable the
Issuing Lender to exercise and enforce its rights hereunder with respect to such
pledge and security interests.
- 73 -
to the Lenders.
9.3 Exculpatory Provisions.
- 74 -
Lender.
Administrative Agent.
- 75 -
Administrative Agent.
as provided for above in this Section 9.6. Upon the acceptance of a successor’s
Documents, the provisions of this Section 9 and Section 10.3 [Expenses;
- 76 -
If PNC resigns as Administrative Agent under this Section 9.6, PNC shall also
hereunder or thereunder.
Co-Lead Arrangers or Sole Bookrunner listed on the cover page hereof shall have
time to time.
transaction permitted under Section 7.2.5 [Disposition of Assets or
Subsidiaries] or 7.2.4 [Liquidations, Mergers, Consolidations, Acquisitions].
regulations contained in 31 CFR 103.121 (as hereafter amended or
- 77 -
10. MISCELLANEOUS
10.1.3 Release of Pledged Equity or Guarantor.
Release any of the Pledged Equity from the Lien of any Pledge Agreement or
the consent of all Lenders (other than Defaulting Lenders); provided, however,
(i) the Administrative Agent may release Pledged Equity at such time as such
Pledged Equity ceases to constitute the capital stock or beneficial or
membership interests of a Material Subsidiary or a Foreign Subsidiary that owns
a Material Subsidiary that is a Foreign Subsidiary and (ii) the Administrative
Agent may release any Domestic Subsidiary of its obligations as a Guarantor in
the event that the Administrative Agent makes the reasonable determination that
such Domestic Subsidiary no longer constitutes a Material Subsidiary; or
- 78 -
10.1.4 Miscellaneous.
Amend Section 4.2 [Pro Rata Treatment of Lenders], 9.3 [Exculpatory Provisions]
or 4.3 [Sharing of Payments by Lenders] or this Section 10.1, alter any
all such reasonable out-of-pocket expenses incurred
- 79 -
It is understood that the Borrower shall not, in connection with any action or
related actions in the same jurisdiction, be liable for the fees and expenses of
more than one separate law firm for all Indemnitees, unless the Indemnitees
shall have concluded that representation of all the Indemnitees by the same
counsel would be inappropriate due to actual or potential differing
interests among them.
applicable
- 80 -
to in Section 10.3.2 [Indemnification by Borrower] shall be liable for any
10.3.5 Payments.
10.4 Holidays.
or action.
10.5.1 Notices Generally.
- 81 -
10.5.2 Electronic Communications.
hereto.
10.6 Severability.
covenants and agreements of the
- 82 -
Borrower contained herein relating to the payment of principal, interest,
and after the date hereof and until Payment In Full.
Dollars ($5,000,000.00), unless each of the Administrative Agent and, so long as
- 83 -
assigned.
Agreement, together with a processing and recordation fee of Three Thousand Five
shall deliver to the Administrative Agent an administrative questionnaire
natural person.
[Participations].
- 84 -
10.8.3 Register.
may treat each Person whose name is in the Register pursuant to the terms hereof
prior notice.
10.8.4 Participations.
Agreement.
Rights Successors and Assigns Generally], the Borrower agrees that each
- 85 -
Sections 4.7 [Increased Costs], 4.8 [Taxes] or 10.3 [Expenses; Indemnity; Damage
not be entitled to the benefits of Section 4.8 [Taxes] unless the Borrower is
agrees, for the benefit of the Borrower, to comply with Section 4.8.5 [Status of
10.9 Confidentiality.
basis from a source other than the Borrower or the other Loan Parties. Any
confidential information.
- 86 -
10.11.1 Governing Law.
case to the extent not inconsistent therewith, the Laws of the Commonwealth of
PERMITTED BY
- 87 -
REFERRED TO IN THIS SECTION 10.11. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
- 88 -
10.13 Joinder.
Any Domestic Subsidiary of any Loan Party which is required to join this
Agreement pursuant to Section 7.1.8 or Section 7.2.4(iii) shall execute and
deliver to the Administrative Agent (i) a Guarantor Supplement, and
Credit] that the Administrative Agent may reasonably require, modified as
appropriate to relate to such Domestic Subsidiary. The Loan Parties shall
deliver such Guarantor Supplement and all related documents required by this
Section 10.13 to the Administrative Agent no later than thirty (30) days after
the end of the fiscal quarter of the Borrower in which the applicable Domestic
Subsidiary became required to join this Agreement pursuant to Section 7.1.8 or
Section 7.2.4(iii).
10.14 Amendment and Restatement.
and upon the effectiveness of this Agreement, the terms and provisions of the
Existing Credit Agreement shall, subject to this Section 10.14, be superseded
hereby. All references to the “Credit Agreement” contained in the other Loan
by this Agreement, the Obligations of the Borrower and the other Loan Parties
outstanding under the Existing Credit Agreement and the other Loan Documents as
of the Closing Date shall remain outstanding and shall constitute continuing
Obligations and shall continue as such to be secured by the Pledged Equity. Such
Obligations. The Liens securing payment of the Obligations under the Existing
- 89 -
written.
WITNESS:
BORROWER:
RTI International Metals, Inc.,
an Ohio corporation
/s/ Chad Whalen By: /s/ William F. Strome Name: William F. Strome
Title:
Senior Vice President – Finance and Administration
and Treasurer
WITNESS:
GUARANTORS:
RMI Titanium Company,
an Ohio corporation
Title: Treasurer
WITNESS: Extrusion Technology Corporation of America, an Ohio corporation
Title: Treasurer
WITNESS:
RTI Finance Corp.,
an Ohio corporation
Title: Treasurer
WITNESS:
RTI Martinsville, Inc.,
an Ohio corporation
Title: Treasurer
WITNESS:
Remmele Engineering, Inc.,
a Minnesota corporation
Title: Treasurer
WITNESS:
REI Medical, Inc.,
a Minnesota corporation
Title: Treasurer
By: /s/ D. Bryant Mitchell III Name: D. Bryant Mitchell III Title: EVP
corporation, as a Lender
By: /s/ Thomas P. Murray Name: Thomas P. Murray Title: Vice President
WELLS FARGO BANK, N.A., as a Lender By: /s/ Joseph J. Bianchin III Name:
Joseph J. Bianchin III Title: Senior Vice President
CITIBANK N.A., as a Lender By: /s/ Raymond G. Dunning Name: Raymond G.
Dunning Title: Vice President
COMERICA BANK, as a Lender By: /s/ Brandon Welling Name: Brandon Welling
Title: Vice President
Title: Vice President
FIRST NATIONAL BANK OF PENNSYLVANIA, as a Lender By: /s/ Diane Geisler Name:
Diane Geisler Title: Vice President
CITIZENS BANK OF PENNSYLVANIA, as a Lender By: /s/ Carl S. Tabacjar, Jr. Name:
Carl S. Tabacjar, Jr. Title: Vice President
PRICING GRID—
Level
Leverage Ratio
Commitment
Fee Letter of Credit Fee Revolving Credit
Base Rate Spread Revolving Credit
LIBOR Rate
Spread I Less than or equal to 1.00 to 1.0 0.25% 1.25% 0.25% 1.25%
II Greater than 1.00 to 1.0 but less than or equal to 2.00 to 1.0 0.30%
1.50% 0.50% 1.50% III Greater than 2.00 to 1.0 but less than or equal to
3.00 to 1.0 0.35% 2.00% 1.00% 2.00% IV Greater than 3.00 to 1.0
0.50% 2.25% 1.25% 2.25%
Leverage Ratio computed on such date pursuant to the Compliance Certificate
delivered to the Administrative Agent in accordance with Section 6.1.1(vi).
in accordance with such Section 7.3.3, then the rates in Level IV shall apply as
Page 1 of 2
Lender
Amount of
Commitment for
Revolving Credit
Loans
Ratable Share
225 Fifth Avenue
Pittsburgh, PA 15222
Attention: James O’Brien
Telephone: (412) 762-7493
$35,000,000.00 23.333333333%
Name: Fifth Third Bank, an Ohio banking corporation
Address: 600 Superior Ave. East
Cleveland, Ohio 44114
Attention: Thomas Murray
Telephone: (330) 533-8906
Telecopy: (330) 533-8907
$27,500,000.00 18.333333333%
Address: Four Gateway Center
Pittsburgh, Pennsylvania 15222
Attention: Joseph J. Bianchin, III
Telephone: (412) 454-4604
Telecopy: (412) 454-4609
$25,000,000.00 16.666666667%
Name: Citibank N.A.
Address: 388 Greenwich Street, 34th Floor
Attention: Raymond G. Dunning
Telephone: (212) 816-5243
Telecopy: (646) 291-1760
$20,000,000.00 13.333333333%
Name: Comerica Bank
Address: 3551 Hamlin Road
Attention: Brandon Welling
Telephone: (248) 371-6477
Telecopy: (248) 371-6617
$12,500,000.00 8.333333333%
Address: 745 7th Avenue, 26th Floor
Attention: Nicholas Versandi
Telephone: (212) 526-9799
Telecopy: (646) 758-5246
$10,000,000.00 6.666666667%
Address: One North Shore Center
Pittsburgh, PA 15212
Attention: Diane Geisler
$10,000,000.00 6.666666667%
Address: 525 William Penn Place, Suite 2910
Pittsburgh, PA 15219
Attention: Debra L. McAllonis
Telephone: (412) 867-2421
Telecopy: (412) 552-6306
$10,000,000.00 6.666666667%
Total
$150,000,000.00 100.000000000%
Page 2 of 2
ADMINISTRATIVE AGENT
225 Fifth Avenue
Pittsburgh, Pennsylvania 15222
Attention: James O’Brien
Pittsburgh, PA 15219
Attention: Agency Services
BORROWER:
Name: RTI International Metals, Inc.
Address: Westpointe Corporate Center One
1550 Coraopolis Heights Road
Fifth Floor Suite 500
Moon Township, PA 15108-2973
Attention: William F. Strome, Senior Vice President of Finance & Administration
Telephone: (412) 893-0104
Telecopy: (412) 893-0027
GUARANTORS:
c/o RTI International Metals, Inc. (see notice information above)
PERMITTED LIENS
REMMELE ENGINEERING, INC.
Minnesota Secretary of State
A. UCC Financing Statements.
FILING
DATE
ORIGINAL
FILING
NUMBER
SECURED PARTY
COLLATERAL
DESCRIPTION/
DESCRIPTION OF
AMENDMENTS
1. 11/24/2010 201022250285 Cisco Systems Capital Corporation All
Debtor’s rights, title and interest to leased equipment, subject to Agreement to
Lease Equipment No. 8678 MM001; all insurance, warranty, rental and other claims
and rights to payment and chattel paper arising out of such equipment; all
books, records and all relating proceeds. 2. 01/18/2011 201122840418
Cisco Systems Capital Corporation All Debtor’s rights, title and interest to
leased equipment, subject to Agreement to Lease Equipment No. 8678 MM002; all
insurance, warranty, rental and other claims and rights to payment and chattel
paper arising out of such equipment; all books, records and all relating
proceeds. 3. 04/03/2012 201227786089 Xerox Financial Services
Photocopiers. 4. 04/03/2012 201227786104 Xerox Financial Services
Photocopiers.
REI MEDICAL, INC.
Minnesota Secretary of State
FILING
DATES
ORIGINAL
FILING
NUMBER
SECURED PARTY
COLLATERAL
DESCRIPTION/
DESCRIPTION OF
AMENDMENT
1. 02/07/2011 201123059917 VFI-SPV SL VII, Corp
All of the equipment, software and personal
property pursuant to Schedule No. 01 of a Master
Agreement, incorporating the terms and conditions of
Master Lease Agreement (see detailed description therein)
True lease. Filed for precautionary purposes only.
03/14/2011 Amendment Party information change: Debtor’s address
12/19/2011 Amendment (Assignment) VFI KR SPE I LLC 2. N/A N/A
Celtic Leasing Corp. Photocopiers and servers. 3. N/A N/A Celtic
Leasing Corp. Computer equipment.
SCHEDULE 1.1(P) - 2
SCHEDULE 2.8.1
EXISTING LETTERS OF CREDIT
Number
Amount
Issue Date
Expiration Date
Beneficiary
18112005
328,325.35 11/29/2011 08/27/2012 Standard Chartered Bank Malaysia
228242
669,131.00 10/01/2011 03/01/2013 Royal Bank of Canada
18112636
479,530.19 11/29/2011 02/12/2013 Washington International Insurance
18112637
1,772,526.04 11/29/2011 02/12/2013 Avalon Risk Management Insurance
SCHEDULE 2.8.1 - 1
SCHEDULE 5.1.2
SUBSIDIARIES
SUBSIDIARY
JURISDICTION OF FORMATION
OWNER OF EQUITY INTERESTS
% OF EACH
CLASS
Bow Steel Corporation
Delaware New Century Metals, Inc. 100%
Extrusion Technology Corporation of America
Ohio New Century Metals, Inc. 100%
NaTi Gas Co
Ohio RMI Titanium Company 100%
New Century Metals, Inc.
Ohio RTI Fabrication & Distribution, Inc. 100%
New Century Metals Southeast, Inc.
Pierce-Spafford Metals Company, Inc.
California New Century Metals, Inc. 100%
REI Delaware Holding, Inc.
Delaware RTI International Metals, Inc. 100%
REI Medical, Inc.
Minnesota REI Delaware Holding, Inc. 100%
Remmele Engineering, Inc.
RMI Delaware, Inc.
Delaware RMI Titanium Company 100%
RMI Titanium Company
Ohio RTI International Metals, Inc. 100%
RTI Advanced Forming Ltd.
United Kingdom RTI Europe Limited 100%
RTI Capital, LLC
RTI Energy Systems, Inc.
RTI Europe Limited
United Kingdom RTI International Metals, Inc. 100%
RTI Fabrication & Distribution, Inc.
RTI Hermitage, Inc.
RTI International Metals Limited
RTI – Reamet S.A.S.
France RTI Europe Limited 100%
RTI—St. Louis, Inc.
Missouri RTI Fabrication & Distribution, Inc. 100%
TRADCO, Inc.
Missouri RMI Titanium Company 100%
RTI Finance Corp.
RTI Martinsville, Inc.
RTI Hamilton, Inc.
RTI-Claro, Inc.
Province of Quebec, Canada RTI International Metals, Inc. 100%
SCHEDULE 5.1.2 - 1
SCHEDULE 5.1.13
ENVIRONMENTAL DISCLOSURES
None
SCHEDULE 5.1.13 - 1
SCHEDULE 7.2.1.1 PERMITTED INDEBTEDNESS
EXISTING DEBT
1. RTI International Metals, Inc. and the Guarantors have the following capital
leases as of May 22, 2012:
Loan Party Lessor Asset Description Monthly Payment
Lease Ending Date
Celtic Leasing Corp. Copiers & Servers $2,991 6/30/2014
Celtic Leasing Corp. Computer Equipment $7,512 9/30/2015
Cisco Systems Capital Transceivers $2,100 5/31/2016
Cisco Systems Capital Cisco Phone System $8,582 11/1/2016
Xerox Financial Services Copiers $12,960 4/20/2017
Varilease Finance Hydromat Machine $62,797 5/31/2015
2.
Loan Party
Lender Asset Description Amount Secured
RMI Titanium Company
Canton Community
Improvement Corporation One Vacuum Arc
Re-Melt Furnace
$20,000
3.
Loan Party
Description of Borrowing Subsidiary Guarantors Principal Amount
3.000% Convertible Senior
Notes due 2015 RMI Titanium Company
Extrusion Technology
Corporation of America
RTI Finance Corp.
$230,000,000
SCHEDULE 7.2.1.2 - 1
SCHEDULE 7.2.1.2 PERMITTED INDEBTEDNESS
EXISTING DEBT (SUBSIDIARIES)
None
SCHEDULE 7.2.1.2 - 1
SCHEDULE 7.2.3
RESTRICTIONS ON DIVIDENDS
None
FORM OF
ASSIGNMENT AND ASSUMPTION AGREEMENT
the Effective Date (as hereinafter defined) and is entered into by and between
below (as the same may be amended, restated, amended and restated modified or
supplemented, the “Credit Agreement”), receipt of a copy of which is hereby
herein in full.
guarantees, and swing loans included in such facilities) and (ii) to the extent
Fund of [identify Lender]1] 3.
1
Select as applicable.
Second Amended and Restated Credit Agreement dated the 23rd day of May, 2012, by
and PNC Bank, National Association, as Administrative Agent for the Lenders 6.
Assigned Interest:
Facility Assigned2
Aggregate Amount of
Commitment/Loans
Commitment/Loans
Assigned3 Percentage Assigned
of
Commitment/Loans4 $ $ % $ $ % $ $ %
[7.
REGISTER THEREFOR.]
2
Agreement that are being assigned under this Assignment (e.g.; “Revolving Credit
3
4
all Lenders thereunder.
5
- 2 -
Name:
Title:
Name:
Title:
By:
Name:
Title:
[If necessary per terms of Credit Agreement]
[Consented to:
By:
Name:
Title:
]
ANNEX 1
STANDARD TERMS AND CONDITIONS
Section 7.3.1 or Section 7.3.2 thereof, as applicable, and such other documents
Lender, and (v) if it is not incorporated under the laws of the United States of
America or a state thereof, attached to the Assignment and Assumption is any
- i -
Pennsylvania, without regard to its conflict of law principles.
- ii -
WHEREAS, RTI International Metals, Inc. (the “Borrower”), the Lenders party
thereto, the Swing Loan Bank, the Issuing Bank, PNC Bank, National Association,
as Documentation Agent, and National City Bank, as Administrative Agent entered
into that certain First Amended and Restated Credit Agreement, dated as of
September 8, 2008 (as amended prior to the date hereof, the “Existing Credit
Agreement”);
WHEREAS, in consideration of the financial and other support provided by the
Borrower to the Guarantors (as hereinafter defined) and in connection with the
Existing Credit Agreement, the Guarantors entered into that certain First
Amended and Restated Subsidiary Guaranty, dated as of September 8, 2008 (as
amended prior to the date hereof, the “Existing Guaranty”);
Existing Credit Agreement, and accordingly have entered into that certain Second
Amended and Restated Credit Agreement, dated of even date herewith, by and among
the Borrower, the Guarantors, the Lenders party thereto and PNC Bank, National
Association, as Administrative Agent (as amended, supplemented or otherwise
in the future provide, to the undersigned (each, a “Guarantor” and collectively,
together with each of their respective successors, the “Guarantors”) and in
order to induce the Lenders, the Issuing Lenders and the Administrative Agent to
enter into the Credit Agreement and to make extensions of credit and issue
letters of credit thereunder, the Guarantors are willing, jointly and severally,
to amend and restate the Existing Guaranty and continue to guarantee the
obligations of the Borrower under the Credit Agreement and the Notes issued
thereunder pursuant to the terms and conditions hereof;
ARTICLE I
DEFINITIONS
of Section 1.2 of the Credit Agreement shall apply to this Subsidiary Guaranty.
principal of and interest on the Loans, the Letters of Credit and the Notes,
(ii) all other Obligations and (iii) all renewals or extensions of the
foregoing, in each case whether now outstanding or hereafter arising. The
Guaranteed Obligations shall include, without limitation, any interest, costs,
fees and expenses which accrue on or with respect to any of the foregoing and
are payable by the Borrower pursuant to the Credit Agreement, any Letter of
Credit, any Note, any Lender Provided Hedging Agreement or any Other Lender
Provided Financial Service Product, whether before or after the commencement of
reorganization of any Loan Party, and any such interest, costs, fees and
expenses that would have accrued thereon or with respect thereto and would have
been payable by the Borrower pursuant to the Credit Agreement, any Letter of
Provided Financial Service Product but for the commencement of such case,
“Guaranteed Parties” means the Administrative Agent, the Issuing Lenders and
each Lender.
ARTICLE II
GUARANTEE
Section 2.01 The Guarantee. Subject to Section 2.03, each Guarantor hereby
unconditionally and irrevocably guarantees to the Guaranteed Parties and to each
of them, the due and punctual payment of all Guaranteed Obligations as and when
the same shall become due and payable, whether at maturity, by declaration or
otherwise, according to the terms thereof. This is a continuing guarantee and a
guarantee of payment and not merely of collection. In case of failure by the
Borrower punctually to pay the indebtedness guaranteed hereby, each Guarantor,
subject to Section 2.03, hereby unconditionally agrees to cause such payment to
maturity or by declaration or otherwise, and as if such payment were made by the
Borrower. Each Guarantor further agrees that, if any payment made by the
Borrower or any other person and applied to the Guaranteed Obligations is at any
fraudulent or preferential or otherwise required to be refunded or repaid, any
such Guarantor’s liability hereunder shall be and remain in full force and
foregoing, this Guaranty shall have been cancelled or surrendered, this Guaranty
obligations of any such Guarantor in respect of the amount of such payment.
Section 2.02 Guarantee Unconditional. The obligations of each Guarantor under
this Article II shall be unconditional and absolute and, without limiting the
affected by:
of any obligation of any other Loan Party under any Loan Document, by operation
- 2 -
(b) any modification or amendment of or supplement to any Loan Document (other
than as specified in an amendment or waiver of this Subsidiary Guaranty effected
in accordance with Section 4.03);
of any Guaranteed Obligation, direct or indirect security, or of any guaranty or
other liability of any third party, for any obligation of any other Loan Party
proceeding affecting any other Loan Party or its assets or any resulting release
or discharge of any obligation of any other Loan Party contained in any Loan
Document;
(e) the existence of any claim, set-off or other rights which any Guarantor may
have at any time against any other Loan Party, any Guaranteed Party or any other
Person, whether or not arising in connection with the Loan Document; provided
Party for any reason of any Loan Document, any Guaranteed Obligation or any
any other Loan Party of the principal of or interest on any Loan or any other
amount payable by any other Loan Party under any Loan Document;
(g) the lack of perfection or continuing perfection or failure of priority of
any security for the Guaranteed Obligations or any part of them;
(h) any law, regulation, decree or order of any jurisdiction, or any other
event, affecting any term of any Guaranteed Obligation or rights of the
Guaranteed Parties with respect thereto; or
Party, any Guaranteed Party or any other Person or any other circumstance
legal or equitable discharge of the obligations of such Guarantor under this
Article 2.
Section 2.03 Limit of Liability. Each Guarantor shall be liable under this
any other applicable law. To the extent that any Guarantor shall be required
(ii) the amount which such Guarantor would otherwise have paid if such Guarantor
amount thereof repaid by the Borrower and any other Guarantors) in the same
proportion as such Guarantor’s net worth at the date enforcement hereunder is
sought bears to the aggregate net worth of all the Guarantors at the date
enforcement hereunder is sought (the “Contribution Percentage”), then such
Guarantor shall have a right of
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the Guaranteed Obligations to and including the date enforcement hereunder is
sought in an aggregate amount less than such other Guarantor’s Contribution
hereunder is sought by all Guarantors in respect of the Guaranteed Obligations;
provided that no Guarantor may take any action to enforce such right until
Payment In Full, it being expressly recognized and agreed by all parties hereto
that each Guarantor’s right of contribution arising pursuant to this
Section 2.03 against any other Guarantor shall be expressly junior and
the Guaranteed Obligations and any other obligations owing hereunder. Until
Payment In Full, no Guarantor who makes any payment in respect of the Guaranteed
Obligations shall have any right of contribution or subrogation against any
other Guarantor in respect of such payment. Each Guarantor recognizes and
any other Guarantor to the extent that after giving effect to such waiver such
Section 2.04 Discharge; Reinstatement in Certain Circumstances. The Guarantors’
obligations under this Article II shall remain in full force and effect until
Payment In Full. If at any time any payment of the principal of or interest on
any Loan or any other amount payable by the Borrower under any Loan Document is
bankruptcy or reorganization of any other Loan Party or otherwise, the
Guarantors’ obligations under this Article II with respect to such payment shall
Section 2.05 Waiver. Each Guarantor irrevocably waives acceptance hereof,
other Loan Party or any other Person.
Section 2.06 Subrogation and Contribution. Until Payment In Full, no Guarantor
shall enforce or otherwise exercise any rights to which it may be entitled, by
operation of law or otherwise, upon making any payment hereunder (i) to be
payment or otherwise to be reimbursed, indemnified or exonerated by any other
Loan Party in respect thereof or (ii) to receive any payment, in the nature of
contribution or for any other reason, from any other Loan Party with respect to
such payment. Any sums received in violation of the foregoing by any Guarantor
Guaranteed Parties, and shall be promptly paid over to the Administrative Agent
on account of the Guaranteed Obligations, but without otherwise affecting such
Guarantor’s liability hereunder.
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ARTICLE III
MISCELLANEOUS
Section 3.01 Notices. All notices and other communications to be made to or by
any Guarantor hereunder shall be in writing and shall be delivered by hand or
telecopier to the applicable recipient at its address or facsimile number for
notices specified in or pursuant to the Credit Agreement. Notices sent by hand
Section 3.02 No Waiver. No failure or delay by any Guaranteed Party in
exercising any right, power or privilege under this Subsidiary Guaranty or any
Section 3.03 Amendments and Waivers. Any provision of this Subsidiary Guaranty
into in accordance with Section 10.1 of the Credit Agreement.
Section 3.04 Successors and Assigns. This Subsidiary Guaranty is for the benefit
of each Guaranteed Party and their respective successors and assigns and in the
event of an assignment of the Loans, the Notes or other amounts payable under
the Loan Documents, the rights hereunder, to the extent applicable to the
indebtedness so assigned, shall be transferred with such indebtedness. All the
provisions of this Subsidiary Guaranty shall be binding upon each Guarantor and
Section 3.05 Taxes. All payments by any Guarantor hereunder shall be made free
and clear of Taxes and otherwise in accordance with Section 4.8 of the Credit
forth herein, provided that each reference contained therein to the Borrower
shall be a reference to the Guarantors).
Section 3.06 Effectiveness. This Subsidiary Guaranty shall become effective when
the Administrative Agent shall have received a counterpart hereof signed by each
Guarantor.
Section 3.07 GOVERNING LAW; SUBMISSION TO JURISDICTION. THIS SUBSIDIARY GUARANTY
COMMONWEALTH OF PENNSYLVANIA. EACH GUARANTOR HEREBY SUBMITS TO THE NONEXCLUSIVE
PENNSYLVANIA AND OF ANY PENNSYLVANIA STATE COURT SITTING IN ALLEGHENY COUNTY FOR
PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT
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OF OR RELATING TO THIS SUBSIDIARY GUARANTY OR THE TRANSACTIONS CONTEMPLATED
HEREBY. EACH GUARANTOR IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
Section 3.08 WAIVER OF JURY TRIAL. EACH GUARANTOR HEREBY IRREVOCABLY WAIVES ANY
RELATING TO THIS SUBSIDIARY GUARANTY OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 3.09 WAIVER OF CONSEQUENTIAL DAMAGES. EACH GUARANTOR HEREBY IRREVOCABLY
AND UNCONDITIONALLY WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY
RIGHT IT MAY HAVE TO CLAIM OR RECOVER ANY SPECIAL, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGE IN ANY LEGAL ACTION OR PROCEEDING IN RESPECT OF THIS
GUARANTY OR ANY OTHER LOAN DOCUMENT.
Section 3.10 Right of Setoff. Upon the occurrence and during the continuance of
an Event of Default, each Guaranteed Party and each Affiliate of a Guaranteed
Party may, without notice to, or demand upon, any Guarantor and regardless of
(a) any indebtedness due or to become due from such Guaranteed Party or
of such Guaranteed Party or Affiliate.
Section 3.11 Additional Guarantors. If, pursuant to Section 7.1.8 or 7.2.4(iii)
of the Credit Agreement, the Borrower shall be required to cause any Material
Subsidiary that is not a Guarantor as of the date hereof to become a Guarantor
hereunder, such Material Subsidiary shall execute and deliver to the
B attached hereto and shall thereafter for all purposes be a party hereto and to
the Credit Agreement and have the same rights, benefits and obligations as a
Guarantor party hereto and to the Credit Agreement on the Closing Date.
Section 3.12 Judgment Currency. If, under any applicable law and whether
pursuant to a judgment being made or registered against any Guarantor or for any
the amount due under the terms of this Subsidiary Guaranty, such Guarantor
shall, to the extent permitted by law, as a separate and independent obligation,
the purpose of
- 6 -
Section 3.13 Amendment and Restatement. This Subsidiary Guaranty amends,
restates and replaces the Existing Guaranty, and is not a novation of the
obligations of the Guarantors pursuant to the Existing Guaranty.
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IN WITNESS WHEREOF each Guarantor has caused this instrument to be duly executed
RMI Titanium Company, an Ohio corporation By: Name: Title: Extrusion
Technology Corporation of America, an Ohio corporation By: Name: Title:
RTI Finance Corp., an Ohio corporation By: Name: Title: RTI
Martinsville, Inc., an Ohio corporation By: Name: Title:
Remmele Engineering, Inc., a Minnesota corporation By: Name: Title: REI
Medical, Inc., a Minnesota corporation By: Name: Title:
Exhibit A
Notice Addresses
RMI Titanium Company
RTI Finance Corp.
Notice address for each of the foregoing Guarantors:
Westpointe Corporate Center One
1550 Coraopolis Heights Road
Fifth Floor Suite 500
Fax: (412) 893-0027
EXHIBIT B
TO
FORM OF GUARANTY SUPPLEMENT
The undersigned hereby agrees to be bound as a Guarantor for purposes of (i) the
Second Amended and Restated Credit Agreement, dated as of May 23, 2012, by and
party thereto and PNC Bank, National Association, as administrative agent for
the Lenders (in such capacity, the “Administrative Agent”) (as it may be further
amended, restated, amended and restated, modified or supplemented, the “Credit
Agreement”) and (ii) the Second Amended and Restated Subsidiary Guaranty, dated
as of May 23, 2012 (as it may be further amended, restated, amended and
restated, modified or supplemented, the “Subsidiary Guaranty”), among certain
Material Subsidiaries (as defined in the Credit Agreement) of the Borrower
listed on the signature pages thereof in favor of the Administrative Agent, the
Lenders and the Issuing Lenders (as defined in the Credit Agreement), and the
undersigned hereby acknowledges receipt of a copy of the Subsidiary Guaranty.
and warranties contained in Section 5 of the Credit Agreement applicable to it
duly executed and delivered as of , 201 .
Name: Title:
ACKNOWLEDGED AND AGREED
as Administrative Agent
By:
Name: Title:
FORM OF [AMENDED AND RESTATED] REVOLVING CREDIT NOTE
$[•]
Dated: [•][•], 201 [•]
FOR VALUE RECEIVED, the undersigned, RTI INTERNATIONAL METALS, INC., an Ohio
corporation (the “Borrower”), hereby promises to pay to the order of [•] (the
“Lender”) on the Expiration Date (as defined in the Credit Agreement referred to
below), the principal sum of and 00/100 Dollars
($ .00) [amount of the Lender’s Revolving Credit Commitment]
or, if less, the then aggregate unpaid principal amount of the Revolving Credit
Loans made by the Lender to the Borrower pursuant to the Second Amended and
Restated Credit Agreement, dated May , 2012, among the Borrower, the
Guarantors (as defined therein) party thereto, the Lender and certain other
lenders parties thereto and PNC Bank, National Association, as Administrative
Agent for the Lender and such other lenders (as further amended, supplemented,
terms defined therein being used herein as therein defined).
This [Amended and Restated] Revolving Credit Note (this “Revolving Credit Note”)
is one of the Notes referred to in, is subject to the terms and conditions of
and is entitled to the benefits of, the Credit Agreement and the other Loan
Documents, including, without limitation, the Guaranty Agreement. The Credit
Loans by the Lender to the Borrower in an aggregate principal amount not to
indebtedness of the Borrower resulting from each such Revolving Credit Loan
being evidenced by this Revolving Credit Note, and (ii) contains provisions for
The Revolving Credit Loans made by the Lender to the Borrower pursuant to the
Credit Agreement and evidenced by this Revolving Credit Note, and all payments
made on account of principal thereof, may be, but are not required to be,
endorsed by the Lender on the schedule attached hereto and made a part hereof,
or on a continuation of such schedule attached to and made a part hereof.
The Borrower hereby waives presentment, demand, protest and all other notices of
any kind in connection with this Revolving Credit Note.
This Revolving Credit Note amends and restates that certain Amended and Restated
Promissory Note, dated , , made by the
Borrower to the Lender in the original principal amount not to exceed
and 00/100 Dollars ($ .00) (the “Prior
Note”). This Revolving Credit Note is issued in substitution for and replacement
of (and not in discharge of the indebtedness evidenced by) the Prior Note.
RTI INTERNATIONAL METALS, INC. By: Name: Title:
$15,000,000.00
Dated: May , 2012
corporation (the “Borrower”), hereby promises to pay to the order of PNC Bank,
National Association (“PNC”) on the Expiration Date (as defined in the Credit
Agreement referred to below), the principal sum of Fifteen Million and 00/100
Dollars ($15,000,000.00) or, if less, the then aggregate unpaid principal amount
of the Swing Loans made by PNC to the Borrower pursuant to the Second Amended
and Restated Credit Agreement, dated May __, 2012, among the Borrower, the
Guarantors (as defined therein) party thereto, PNC and certain other lenders
parties thereto and PNC, as Administrative Agent for PNC and such other lenders
(as further amended, supplemented, restated, amended and restated or otherwise
Swing Loan from the date of such Swing Loan until such principal amount is paid
the Credit Agreement.
This Swing Loan Note (this “Swing Loan Note”) is one of the Notes referred to
in, is subject to the terms and conditions of and is entitled to the benefits
of, the Credit Agreement and the other Loan Documents, including, without
limitation, the Guaranty Agreement. The Credit Agreement, among other things,
(i) provides for the making of Swing Loans by PNC to the Borrower in an
aggregate principal amount not to exceed at any time outstanding the U.S. dollar
each such Swing Loan being evidenced by this Swing Loan Note, and (ii) contains
The Swing Loans made by PNC to the Borrower pursuant to the Credit Agreement and
evidenced by this Swing Loan Note, and all payments made on account of principal
thereof, may be, but are not required to be, endorsed by PNC on the schedule
attached hereto and made a part hereof, or on a continuation of such schedule
attached to and made a part hereof.
any kind in connection with this Swing Loan Note.
This Swing Loan Note shall be governed by and construed in accordance with the
law of the Commonwealth of Pennsylvania.
EXHIBIT 2.4.1
FORM OF
LOAN REQUEST
Firstside Center
Pittsburgh, Pennsylvania 15219
Attention: Agency Services
FROM: RTI International Metals, Inc., an Ohio corporation (the “Borrower”)
RE: Second Amended and Restated Credit Agreement (as it may be further amended,
restated, modified or supplemented, the “Agreement”), dated the day of
May, 2012, by and among the Borrower, the Guarantors (as defined in the Credit
Agreement) party thereto, the Lenders (as defined in the Credit Agreement) party
A. Pursuant to Section 2.4.1 [Revolving Credit Loan Requests] of the Agreement,
the undersigned Borrower irrevocably requests [check one box under 1(a) below
1.(a) ¨ New Revolving Credit Loans OR
¨ Renewal of the LIBOR Rate Option applicable to an outstanding Revolving
Credit Loan, originally made on OR
¨ Conversion of the Base Rate Option applicable to an outstanding Revolving
Credit Loan originally made on to a Loan to which the LIBOR
Option applies, OR
¨ Conversion of the LIBOR Rate Option applicable to an outstanding Revolving
Credit Loan originally made on to a Loan to which the Base
Rate Option applies.
Date of (which date shall be (i) the Business Day of receipt
applies is being converted to a Loan to which the Base Rate Option applies), OR
(ii) ¨ Under the LIBOR Rate Option. Such Loan shall have a
Borrowing Date of (which date shall be three (3) Business
this Loan Request for making a new Revolving Credit Loan to which the LIBOR Rate
Option applies, renewing a Loan to which the LIBOR Rate Option applies, or
LIBOR Rate Option applies).
2. Such Loan is in the principal amount of $ or the
principal amount to be renewed or converted in $ [(a) for
each Borrowing Tranche to which the LIBOR Rate Option applies, not to be less
than Two Million and 00/100 Dollars ($2,000,000.00) and in increments of One
to which the Base Rate Option applies, not to be less than Five Hundred Thousand
and 00/100 Dollars ($500,000.00 and in increments of One Hundred Thousand and
00/100 Dollars ($100,000.00)].
3. [This paragraph A.3 applies if the Borrower is selecting the LIBOR-Rate
Option]: Such Loans shall have an Interest Period of one (1), two (2), three (3)
or six (6) Months.
and complied with all covenants and conditions of the Agreement; all of Loan
or time, in which case they are true and correct as of such earlier date or
time); no Event of Default or Potential Default has occurred and is continuing
or shall exist except those that have been cured or waived; the making of such
Loan shall not contravene any Law applicable to any Loan Party; and the making
of any Revolving Credit Loan shall not cause the Revolving Facility Usage to
C. The undersigned hereby irrevocably requests [check one box below and fill in
blank space next to the box as appropriate]:
¨ Funds to be deposited into PNC bank account per our current standing
$ , OR
- 2 -
¨ Funds to be wired per the following wire instructions:
Amount of Wire Transfer : $
Bank Name:
ABA:
Account Number:
Account Name:
Reference: , OR
¨ Funds to be wired per the attached Funds Flow (multiple wire transfers)
- 3 -
The undersigned certifies to the Agent and the Lenders as to the accuracy of the
foregoing.
RTI International Metals, Inc. Date: , 201 By:
Name: Title:
EXHIBIT 2.4.2
FORM OF
SWING LOAN REQUEST
Firstside Center
Pittsburgh, Pennsylvania 15219
Attention: Agency Services
day of May, 2012, by and among the Borrower, the Guarantors
the Credit Agreement) party thereto and PNC Bank, National Association, as
undersigned Borrower irrevocably requests:
(which date shall be the Business Day of receipt by the
Agent by 12:00 noon of this Swing Loan Request for making a new Swing Loan).
2. Such Loan is in the principal amount of $ [for each
Borrowing Tranche, not to be less than Five Hundred Thousand and 00/100 Dollars
of any Swing Loan shall not cause the Revolving Facility Usage to exceed the
Revolving Credit Commitments.
$ , OR
Bank Name:
ABA:
Account Number:
Account Name:
Reference: , OR
- 2 -
foregoing.
Name: Title:
EXHIBIT 7.3.3
FORM OF
COMPLIANCE CERTIFICATE
Ladies and Gentlemen:
dated as of May 23, 2012, among RTI International Metals, Inc., an Ohio
corporation (the “Borrower”), the Guarantors (as defined therein) party thereto,
the Lenders (as defined therein) party thereto and PNC Bank, National
“Administrative Agent”) (as further amended, restated, amended or restated or
but not defined herein have the meanings given to them in the Agreement.
The undersigned hereby certifies as of the date hereof that he/she is [the Chief
Executive Officer] [the President] [a Financial Officer] of the Borrower, and
that, as such, he/she is authorized to execute and deliver this compliance
certificate to the Administrative Agent on the behalf of the Borrower, and that:
[Use following paragraph 1 for fiscal year-end financial statement]
required by Section 7.3.2 of the Agreement for the fiscal year of the Borrower
ended as of the above date, together with the certification of a certified
by Section 7.3.1 of the Agreement for the fiscal quarter of the Borrower ended
2. Attached hereto as Schedule 5.1.2 is an updated Schedule 5.1.2 to the Credit
Agreement, which evidences the changes to Borrower’s Subsidiaries and the
percentage of equity interests in such Subsidiaries since the date of the last
Schedule 5.1.2 delivered to the Administrative Agent.
3. [As of the date hereof, there is no Potential Default or Event of Default.]
[or]
[The following is a list of each Potential Default or Event of Default as of the
date hereof and the nature and status of each such Potential Default or Event of
Default and the details of any action taken or proposed to be taken with respect
thereto:]
4. The financial covenant analyses, information and calculations necessary to
show compliance with Sections 7.2.10 and 7.2.11 of the Agreement set forth on
compliance certificate.
IN WITNESS WHEREOF. the undersigned has executed this compliance certificate as
of , .
an Ohio corporation:
SCHEDULE 1
to the Compliance Certificate
Financial Statements
SCHEDULE 2
to the Compliance Certificate
RTI TO PREPARE SPREADSHEET WITH LINE ITEM CALCULATIONS OF THE FOLLOWING
I. 7.2.10 – Maximum Leverage Ratio.
II. 7.2.11 – Minimum Interest Coverage Ratio.
SCHEDULE 5.1.2
to the Compliance Certificate
Subsidiaries |
Type: Regulation
Subject Matter: tariff policy; international trade; cooperation policy; agricultural policy; animal product; trade; health
Date Published: nan
10.2.2009 EN Official Journal of the European Union L 39/12 COMMISSION REGULATION (EC) No 119/2009 of 9 February 2009 laying down a list of third countries or parts thereof, for imports into, or transit through, the Community of meat of wild leporidae, of certain wild land mammals and of farmed rabbits and the veterinary certification requirements (Text with EEA relevance) THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Community, Having regard to Council Directive 2002/99/EC of 16 December 2002 laying down the animal health rules governing the production, processing, distribution and introduction of products of animal origin for human consumption (1), and in particular the first subparagraph of point 1 of Article 8, Article 9(2)(b) and Article 9(4)(b) and (c) thereof, Having regard to Regulation (EC) No 852/2004 of the European Parliament and of the Council of 29 April 2004 on the hygiene of foodstuffs (2), and in particular Article 12 thereof, Having regard to Regulation (EC) No 853/2004 of the European Parliament and of the Council of 29 April 2004 laying down specific hygiene rules for food of animal origin (3), and in particular Article 9 thereof, Having regard to Regulation (EC) No 854/2004 of the European Parliament and of the Council of 29 April 2004 laying down specific rules for the organisation of official controls on products of animal origin intended for human consumption (4), and in particular Articles 11(1) and 14(4) thereof, Having regard to Regulation (EC) No 882/2004 of the European Parliament and of the Council of 29 April 2004 on official controls performed to ensure the verification of compliance with feed and food law, animal health and animal welfare rules (5), and in particular Article 48(1) thereof, Whereas: (1) Commission Decision 2000/585/EC (6) draws up a list of third countries from which Member States are to authorise imports of rabbit meat and certain wild and farmed game meat, and lays down the animal and public health and the veterinary certification conditions for such imports. (2) In the interests of consistency of Community legislation, Community rules for imports of meat of wild leporidae, of certain wild land mammals and of farmed rabbits should take into account the public health requirements laid down in Regulations (EC) No 852/2004, (EC) No 853/2004, (EC) No 854/2004 and (EC) No 882/2004. (3) The measures provided for in this Regulation shall be without prejudice to legislation implementing Council Regulation (EC) No 338/97 of 9 December 1996 on the protection of species of wild fauna and flora by regulating trade therein (7). (4) With a view to harmonising Community conditions for imports into the Community of the commodities concerned, as well as making them more transparent and simplifying the legislative procedure for amending such conditions, those conditions should be set out in the appropriate model veterinary certificates set out in this Regulation. (5) The veterinary certificates for imports into and transit, including storage during transit, through the Community of meat of wild leporidae, of certain wild land mammals and of farmed rabbits should comply with the appropriate standard models set out in Annex I to Commission Decision 2007/240/EC of 16 April 2007 laying down new veterinary certificates for importing live animals, semen, embryos, ova and products of animal origin into the Community pursuant to Decisions 79/542/EEC, 92/260/EEC, 93/195/EEC, 93/196/EEC, 93/197/EEC, 95/328/EC, 96/333/EC, 96/539/EC, 96/540/EC, 2000/572/EC, 2000/585/EC, 2000/666/EC, 2002/613/EC, 2003/56/EC, 2003/779/EC, 2003/804/EC, 2003/858/EC, 2003/863/EC, 2003/881/EC, 2004/407/EC, 2004/438/EC, 2004/595/EC, 2004/639/EC and 2006/168/EC (8). (6) The model veterinary certificates, set out in this Regulation, for imports into and transit, including storage during transit, through the Community of meat of wild leporidae, of certain wild land mammals and of farmed rabbits should also be compatible with the Traces system, as provided for in Commission Decision 2004/292/EC of 30 March 2004 on the introduction of the Traces system (9). (7) The list of third countries or parts thereof, listed in Annex II to Council Decision 79/542/EEC (10) should be used for imports into, or transit through, the Community of meat of wild leporidae and of farmed rabbits. The list of countries should be laid down for imports into or transit through, the Community of meat of wild land mammals other than ungulates and leporidae. (8) Specific conditions for transit via the Community of consignments to and from Russia should be provided for, owing to the geographical situation of Kaliningrad which only concerns Latvia, Lithuania and Poland. (9) To avoid any disruption of trade, the use of the veterinary certificates issued in accordance with Decision 2000/585/EC should be authorised during a transitional period. (10) In the interests of clarity of Community legislation, Commission Decision 2000/585/EC should be repealed and replaced by this Regulation. (11) The measures provided for in this Regulation are in accordance with the opinion of the Standing Committee on the Food Chain and Animal Health, HAS ADOPTED THIS REGULATION: Article 1 Subject matter and scope 1. This Regulation lays down: (a) a list of third countries or parts thereof from which the following commodities may be imported into, or transit through the Community: (i) meat of wild leporidae not containing offal, except for unskinned and uneviscerated wild leporidae; (ii) meat of wild land mammals other than ungulates and leporidae, not containing offal; (iii) meat of farmed rabbits; (b) the veterinary certification requirements for the commodities listed in points (i), (ii) and (iii) (the commodities). 2. Without prejudice to the restriction provided for in Article 5(2), for the purposes of this Regulation, transit covers storage during transit (including putting into storage, as referred to in Article 12(4) and Article 13 of Council Directive 97/78/EC (11)). 3. This Regulation shall apply without prejudice to: (i) specific certification requirements provided for in Community agreements with third countries; (ii) the relevant rules on certification contained within legislation implementing Regulation (EC) No 338/97 on the protection of species of wild fauna and flora by regulating trade therein. Article 2 Definition For the purposes of this Regulation, wild leporidae means wild rabbits and hares. Article 3 Lists of third countries or parts thereof from which commodities may be imported into, or transit through, the Community The commodities shall only be imported into, or transit through, the Community from a third country or parts thereof listed or referred to in Part 1 of Annex I. Article 4 Veterinary certification 1. Commodities imported into the Community shall be accompanied by a veterinary certificate drawn up in accordance with the model certificate set out in Annex II, for the commodity concerned, completed in accordance with the notes set out in Part 4 of Annex I. 2. Commodities in transit through the Community shall be accompanied by a certificate drawn up in accordance with the model certificate set out in Annex III. 3. Compliance with the additional guarantees, as required for a certain Member State or part thereof in columns 4, 6 and 8 of the Table in Part 1 of Annex I and as described in Part 3 of Annex I, shall be certified by completing the appropriate section in the veterinary certificate for the commodity concerned. 4. Electronic certification and other agreed systems harmonised at Community level may be used. Article 5 Derogation for transit through Latvia, Lithuania and Poland 1. By way of derogation from Article 4(2), transit by road or by rail shall be authorised between the border inspection posts in Latvia, Lithuania and Poland listed in the Annex to Commission Decision 2001/881/EC (12), of consignments of commodities coming from and bound for Russia, directly or via another third country, where the following conditions are met: (a) the consignment is sealed with a serially numbered seal by the official veterinarian at the border inspection post of entry; (b) the documents accompanying the consignment, as provided for in Article 7 of Directive 97/78/EC, are stamped with the words Only for transit to Russia via the EC on each page by the official veterinarian at the border inspection post of entry; (c) the procedural requirements provided for in Article 11 of Directive 97/78/EC are complied with; (d) the consignment is certified as acceptable for transit on the common veterinary entry document issued by the official veterinarian at the border inspection post of entry. 2. The consignments, as referred to in paragraph 1, may not be unloaded or put into storage, as referred to in Article 12(4) or in Article 13 of Directive 97/78/EC, within the Community. 3. Regular audits shall be conducted by the competent authority to ensure that the number of consignments, as referred to in paragraph 1, and the corresponding quantities of products leaving the Community correspond with the number and quantities entering the Community. Article 6 Repeal Decision 2000/585/EC is repealed. References to the repealed Decision shall be construed as references to this Regulation and shall be read in accordance with the correlation table in Annex IV. Article 7 Transitional provisions Commodities in respect of which the relevant veterinary certificates have been issued in accordance with Decision 2000/585/EC may be imported into or transit through the Community until 30 June 2009. Article 8 Entry into force and applicability This Regulation shall enter into force on the 20th day following its publication in the Official Journal of the European Union. It shall apply from 1 June 2009. This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Brussels, 9 February 2009. For the Commission Androulla VASSILIOU Member of the Commission (1) OJ L 18, 23.1.2003, p. 11. (2) OJ L 139, 30.4.2004, p. 1, corrected by OJ L 226, 25.6.2004, p. 3. (3) OJ L 139, 30.4.2004, p. 55, as corrected by OJ L 226, 25.6.2004, p. 22. (4) OJ L 139, 30.4.2004, p. 206, as corrected by OJ L 226, 25.6.2004, p. 83. (5) OJ L 165, 30.4.2004, p. 1, as corrected by OJ L 191, 28.5.2004, p. 1. (6) OJ L 251, 6.10.2000, p. 1. (7) OJ L 61, 3.3.1997, p. 1. (8) OJ L 104, 21.4.2007, p. 37. (9) OJ L 94, 31.3.2004, p. 63. (10) OJ L 146, 14.6.1979, p. 15. (11) OJ L 24, 30.1.1998, p. 9. (12) OJ L 326, 11.12.2001, p. 44. ANNEX I MEAT OF WILD LEPORIDAE, OF CERTAIN WILD LAND MAMMALS AND OF FARMED RABBITS PART 1 List of third countries and parts thereof and additional guarantees Country Code of territory Leporidae Wild land mammals other than ungulates and leporidae Wild Farmed rabbits MC AG MC AG MC AG 1 2 3 4 5 6 7 8 Australia AU WL RM WM Canada CA WL RM WM Greenland GL WL RM WM New Zealand NZ WL RM WM Russia RU WL RM WM Any other third country or part thereof listed in columns 1 and 3 of the table in Part 1 of Annex II to Decision 79/542/EEC WL RM MC : Model veterinary certificate. AG : Additional guarantees. PART 2 Model veterinary certificates Model(s): WL : Model veterinary certificate for meat of wild leporidae (rabbits and hares) WM : Model veterinary certificate for meat of wild land mammals other than ungulates and leporidae RM : Model veterinary certificate for meat of farmed rabbits PART 3 Additional guarantees PART 4 Notes for veterinary certification (a) Veterinary certificates based on the models in Part 2 of this Annex and following the layout of the model that corresponds to the commodity concerned shall be issued by the exporting third country or part thereof. They shall contain, in the order appearing in the model, the attestations that are required for any third country and, where applicable, those additional health requirements required for the exporting third country or part thereof. Where additional guarantees are required by the Member State of destination for the commodity concerned, these shall also be entered on the original of the veterinary certificate. (b) A separate, single certificate must be presented for each consignment of the commodity concerned, exported to the same destination from a territory appearing in column 2 of the table in Part 1 of this Annex and transported in the same railway wagon, lorry, aircraft or ship. (c) The original of certificates shall consist of a single page printed on both sides or, where more text is required, such that all the pages form a whole and cannot be separated. (d) The certificate shall be drawn up in at least one official language of the Member State where the border inspection takes place and in one official language of the Member State of destination. However, those Member States may allow another Community language instead of their own, accompanied, if necessary, by an official translation. (e) Where additional pages are attached to the certificate for the purposes of identifying the items making up the consignment, such additional pages shall also be considered to form part of the original of the certificate, provided the signature and stamp of the certifying official veterinarian appear on each page. (f) Where the certificate, including any additional pages as provided for in (e), comprises more than one page, each page shall be numbered x (page number) of y (total number of pages) on the bottom and shall bear the code number of the certificate allocated by the competent authority on the top. (g) The original of the certificate must be completed and signed by an official veterinarian not more than 24 hours prior to loading of the consignment for imports into the Community, unless otherwise stated in the Community legislation. To that end, the competent authority of the exporting third country shall ensure that principles of certification equivalent to those laid down in Council Directive 96/93/EC (1) are followed. The colour of the signature shall be different from that of the printing. The same rule shall apply to stamps other than embossed stamps. (h) The original of the certificate must accompany the consignment as far as the border inspection post of entry into the European Community. (1) OJ L 13, 16.1.1997, p. 28. ANNEX II MODEL VETERINARY CERTIFICATES FOR THE IMPORT OF MEAT OF WILD LEPORIDAE, CERTAIN WILD LAND MAMMALS AND FARMED RABBITS INTO THE EUROPEAN COMMUNITY ANNEX III (as referred to in Article 4(2)) Model veterinary certificate for the transit/storage of meat of wild leporidae, farmed rabbits and wild land mammals other than ungulates ANNEX IV (as referred to in Article 6) Correlation Table Decision 2000/585/EC This Regulation Article 2 Article 1 Article 2 Article 2a (a) Article 3 Article 2a (b, c and d) Article 4 Article 2b Article 5 Article 4(1) Article 6 Article 4(2) Article 7 Article 3 Article 8 |
Name: Council Implementing Regulation (EU) Noà 125/2014 of 10à February 2014 implementing Article 2(3) of Regulation (EC) Noà 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Implementing Regulation (EU) Noà 714/2013
Type: Implementing Regulation
Date Published: nan
11.2.2014 EN Official Journal of the European Union L 40/9 COUNCIL IMPLEMENTING REGULATION (EU) No 125/2014 of 10 February 2014 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Implementing Regulation (EU) No 714/2013 THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on the Functioning of the European Union, Having regard to Council Regulation (EC) No 2580/2001 of 27 December 2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism (1), and in particular Article 2(3) thereof, Whereas: (1) On 25 July 2013, the Council adopted Implementing Regulation (EU) No 714/2013 (2) implementing Article 2(3) of Regulation (EC) No 2580/2001, updating the list of persons, groups and entities to which Regulation (EC) No 2580/2001 applies (the list). (2) The Council has provided, where practically possible, all the persons, groups and entities with statements of reasons explaining why they were entered in the list. (3) By way of a notice published in the Official Journal of the European Union, the Council informed the persons, groups and entities in the list that it had decided to keep them therein. The Council also informed the persons, groups and entities concerned that it was possible to request a statement of the Councils reasons for including them in the list where one had not already been communicated to them. (4) The Council has reviewed the list, as required by Article 2(3) of Regulation (EC) No 2580/2001. When doing so, it took account of observations submitted to the Council by those concerned. (5) The Council has concluded that there are no longer grounds for keeping a certain group in the list. (6) The Council has also concluded that other persons, groups and entities in the list have been involved in terrorist acts within the meaning of Article 1(2) and (3) of Common Position 2001/931/CFSP (3), that a decision has been taken with respect to them by a competent authority within the meaning of Article 1(4) of that Common Position, and that they should continue to be subject to the specific restrictive measures provided for in Regulation (EC) No 2580/2001. (7) The list should be updated accordingly, and Implementing Regulation (EU) No 714/2013 should be repealed, HAS ADOPTED THIS REGULATION: Article 1 The list provided for in Article 2(3) of Regulation (EC) No 2580/2001 is set out in the Annex to this Regulation. Article 2 Implementing Regulation (EU) No 714/2013 is hereby repealed. Article 3 This Regulation shall enter into force on the date of its publication in the Official Journal of the European Union. This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Brussels, 10 February 2014. For the Council The President C. ASHTON (1) OJ L 344, 28.12.2001, p. 70. (2) Council Implementing Regulation (EU) No 714/2013 of 25 July 2013 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism, and repealing Implementing Regulation (EU) No 1169/2012 (OJ L 201, 26.7.2013, p. 10). (3) Council Common Position 2001/931/CFSP of 27 December 2001 on the application of specific measures to combat terrorism (OJ L 344, 28.12.2001, p. 93). ANNEX List of persons, groups and entities referred to in Article 1 1. PERSONS 1. ABDOLLAHI Hamed (a.k.a. Mustafa Abdullahi), born 11 August 1960 in Iran. Passport No: D9004878. 2. AL-NASSER, Abdelkarim Hussein Mohamed, born in Al Ihsa (Saudi Arabia), citizen of Saudi Arabia. 3. AL YACOUB, Ibrahim Salih Mohammed, born 16 October 1966 in Tarut (Saudi Arabia), citizen of Saudi Arabia. 4. ARBABSIAR Manssor (a.k.a. Mansour Arbabsiar), born 6 or 15 March 1955 in Iran. Iranian and US national. Passport No: C2002515 (Iran); passport No: 477845448 (USA). National ID No: 07442833, expiry date: 15 March 2016 (USA driving licence). 5. BOUYERI, Mohammed (a.k.a. Abu ZUBAIR, a.k.a. SOBIAR, a.k.a. Abu ZOUBAIR), born 8 March 1978 in Amsterdam (the Netherlands) member of the Hofstadgroep. 6. FAHAS, Sofiane Yacine, born 10 September 1971 in Algiers (Algeria) member of al-Takfir and al-Hijra. 7. IZZ-AL-DIN, Hasan (a.k.a. GARBAYA, Ahmed, a.k.a. SA-ID, a.k.a. SALWWAN, Samir), Lebanon, born 1963 in Lebanon, citizen of Lebanon. 8. MOHAMMED, Khalid Shaikh (a.k.a. ALI, Salem, a.k.a. BIN KHALID, Fahd Bin Adballah, a.k.a. HENIN, Ashraf Refaat Nabith, a.k.a. WADOOD, Khalid Adbul), born 14 April 1965 or 1 March 1964 in Pakistan. Passport No: 488555. 9. SHAHLAI Abdul Reza (a.k.a. Abdol Reza Shala'i, a.k.a. Abd-al Reza Shalai, a.k.a. Abdorreza Shahlai, a.k.a. Abdolreza Shahla'i, a.k.a. Abdul-Reza Shahlaee, a.k.a. Hajj Yusef, a.k.a. Haji Yusif, a.k.a. Hajji Yasir, a.k.a. Hajji Yusif, a.k.a. Yusuf Abu-al-Karkh), born circa 1957 in Iran. Addresses: (1) Kermanshah, Iran; (2) Mehran Military Base, Ilam Province, Iran. 10. SHAKURI Ali Gholam, born circa 1965 in Tehran, Iran. 11. SOLEIMANI Qasem (a.k.a. Ghasem Soleymani, a.k.a. Qasmi Sulayman, a.k.a. Qasem Soleymani, a.k.a. Qasem Solaimani, a.k.a. Qasem Salimani, a.k.a. Qasem Solemani, a.k.a. Qasem Sulaimani, a.k.a. Qasem Sulemani), born 11 March 1957 in Iran. Iranian national. Passport No: 008827 (Iran Diplomatic), issued 1999. Title: Major General. 2. GROUPS AND ENTITIES 1. Abu Nidal Organisation ANO (a.k.a. Fatah Revolutionary Council, a.k.a. Arab Revolutionary Brigades, a.k.a. Black September, a.k.a. Revolutionary Organisation of Socialist Muslims). 2. Al-Aqsa Martyrs' Brigade. 3. Al-Aqsa e.V.. 4. Al-Takfir and Al-Hijra. 5. Babbar Khalsa. 6. Communist Party of the Philippines, including New People's Army NPA, Philippines. 7. Gama'a al-Islamiyya (a.k.a. Al-Gamaa al-Islamiyya) (Islamic Group IG). 8. à °slami Bà ¼yà ¼k Doà u Akà ±ncà ±lar Cephesi IBDA-C (Great Islamic Eastern Warriors Front). 9. Hamas, including Hamas-Izz al-Din al-Qassem. 10. Hizballah Military Wing (a.k.a. Hezbollah Military Wing, a.k.a. Hizbullah Military Wing, a.k.a. Hizbollah Military Wing, a.k.a. Hezballah Military Wing, a.k.a. Hisbollah Military Wing, a.k.a. Hizbullah Military Wing, a.k.a. Hizb Allah Military Wing, a.k.a. Jihad Council (and all units reporting to it, including the External Security Organisation)). 11. Hizbul Mujahideen HM. 12. Hofstadgroep. 13. Holy Land Foundation for Relief and Development. 14. International Sikh Youth Federation ISYF. 15. Khalistan Zindabad Force KZF. 16. Kurdistan Workers' Party PKK (a.k.a. KADEK, a.k.a. KONGRA-GEL). 17. Liberation Tigers of Tamil Eelam LTTE. 18. Ejà ©rcito de Liberacià ³n Nacional (National Liberation Army). 19. Palestinian Islamic Jihad PIJ. 20. Popular Front for the Liberation of Palestine PFLP. 21. Popular Front for the Liberation of Palestine General Command (a.k.a. PFLP General Command). 22. Fuerzas armadas revolucionarias de Colombia FARC (Revolutionary Armed Forces of Colombia). 23. Devrimci Halk Kurtuluà Partisi-Cephesi DHKP/C (a.k.a. Devrimci Sol (Revolutionary Left), a.k.a. Dev Sol) (Revolutionary People's Liberation Army/Front/Party). 24. Sendero Luminoso SL (Shining Path). 25. Teyrbazen Azadiya Kurdistan TAK (a.k.a. Kurdistan Freedom Falcons, a.k.a. Kurdistan Freedom Hawks). |
Title: Civil disobedience vs breaking the law for marijuana?
Question:So I'm wanting to organize a legalize marijuana protest at the Capitol building of my state (Boise, Idaho). I do not smoke marijuana, but I am wanting to provide marijuana bought by me from Oregon for anyone who shows up. It's obviously illegal in Idaho, so I am wondering what are the legal implications of providing, and of using for the protesters? I do not have any record of any sort. Could I be arrested and what would it be considered (misdemeanor or felony)?
Answer #1: "Civil disobedience" in the form of breaking the law is just breaking the law. There's no civil disobedience defense.
Yes, you could be arrested. The consequences depend on what you get charged with. A felony distribution charge is not out of the question. |
Exhibit 10.1
JOINDER AND AMENDMENT AGREEMENT
This JOINDER AND AMENDMENT AGREEMENT dated as of February 1, 2013 (this
“Amendment Agreement”) is made by and among GSI Group Corporation, a Michigan
corporation (the “Existing Borrower”), NDS SURGICAL IMAGING, LLC, a Delaware
limited liability company (the “New Borrower” and jointly and severally with the
Canada (“Holdings”), each of the other Guarantors party hereto, each lender
The Existing Borrower, the Lenders and the Administrative Agent are parties to
2012, as amended by that certain Consent and First Amendment to Amended and
Restated Credit Agreement (the “First Amendment”) dated as of January 14, 2013
(as amended and in effect, the “Credit Agreement”), pursuant to which the
Lenders have agreed to make certain financial accommodations to the Existing
Borrower. Pursuant to the terms of the First Amendment, the Existing Borrower,
the Lenders and the Administrative Agent agreed that the New Borrower would
become a co-Borrower under the Credit Agreement, and that additional changes
would be made to the Credit Agreement to reflect such change.
as follows:
1. Definitions. Except as otherwise defined in this Amendment Agreement, terms
2. Joinder as a Borrower and a Grantor.
(a) As contemplated by the First Amendment and the Credit Agreement as amended
thereby, the New Borrower hereby agrees to become a “Borrower” for all purposes
of the Credit Agreement and other Loan Documents, and a “Grantor” for all
purposes of the Security Agreement and other Loan Documents, in each case, with
the same force and effect as if it had been a signatory to such Loan Documents
on the execution dates of the Credit Agreement, Security Agreement and other
Loan Documents.
(b) Without limiting the foregoing, the New Borrower hereby, jointly and
severally with the Existing Borrower, agrees to assume all of the Obligations
under the Credit Agreement as a Borrower thereunder, and to perform and observe
all Obligations, covenants and agreements to be performed by each Borrower
under, and that it is and will continue to be bound in all respects by all of
the terms and conditions of, the Credit Agreement and the other Loan Documents.
(c) The New Borrower hereby (i) agrees to be bound as a Borrower and as a
Grantor by all the terms and provisions of the Credit Agreement, Security
Agreement and other Loan Documents with the same force and effect as if it had
been a signatory to such Loan Documents on the execution dates of the Credit
Agreement, Security Agreement and other Loan Documents and (ii) represents and
warrants that the representations and warranties made by it as a Borrower, a
Loan Party or a Grantor contained in the Credit Agreement, Security Agreement or
thereof).
3. Amendments to Loan Documents. Subject to the satisfaction of the conditions
follows:
(a) The Credit Agreement (excluding the Schedules and Exhibits thereto) is
amended in its entirety to read in the form of such Credit Agreement attached
(b) The Exhibits and Schedules to the Credit Agreement are amended in their
entireties to read in the forms of such Exhibits and Schedules attached hereto
as Annex II.
4. Conditions Precedent. The amendments to the Credit Agreement set forth in
Section 3 hereof shall become effective, as of the date hereof, upon
(a) the Existing Borrower shall have delivered to the Administrative Agent a
counterpart of this Amendment Agreement executed by the Existing Borrower, the
New Borrower and each other Loan Party;
consent and agreement by executing this Amendment Agreement;
(c) The Borrowers shall have delivered a replacement Note executed by the
Borrowers in favor of Bank of America and each other Lender requesting a Note;
(d) the New Borrower shall have executed and delivered to the Administrative
Agent (x) if such Person or its Domestic Subsidiaries owns any Material
Properties, deeds of trust, trust deeds, deeds to secure debt, and mortgages,
and (y) Security Agreement Supplements, IP Security Agreement Supplements (only
with respect to any U.S. registrations and applications for registration of IP
Rights included in the Collateral and excluding any “intent to use” trademark or
of such Domestic Subsidiaries) and other security and pledge agreements,
securing payment of all the Obligations of the New Borrower and its Domestic
Subsidiaries under the Loan Documents and constituting Liens on all such real
and personal properties;
(e) Holdings shall have executed a Pledged Interests Addendum (under and as
defined in the Security Agreement) with respect to the Equity Interests of the
New Borrower (including delivery of all Pledged Interests in and of the New
Borrower);
2
(f) The New Borrower and each of its Domestic Subsidiaries shall have delivered
existence, good standing and qualification to engage in business in such
Person’s jurisdiction of organization; (b) the bylaws or operating agreement (or
equivalent such constitutional document), as applicable, of such Person as in
effect on the date of such certification; and (c) such certificates of
resolutions or other action, incumbency and/or other certificates of Responsible
Officers of each such Person as the Administrative Agent may require evidencing
authorized to act as a Responsible Officer in connection with the Credit
(g) The Lead Borrower shall have delivered an updated Perfection Certificate;
(h) the representations and warranties made by each Loan Party in Section 5
5. Representations and Warranties. The Existing Borrower, the New Borrower and
the other Loan Parties each represents and warrants to the Lenders that the
true and correct in all material respects on the date hereof, other than any
the date hereof; provided that (a) to the extent that such representations and
true and correct as of such earlier date, (b) the representations and warranties
(b) of the Credit Agreement, respectively and (c) each reference in the Credit
Agreement to “this Agreement” or the “Credit Agreement” or the like shall
include reference to this Amendment Agreement and the Credit Agreement as
amended hereby.
as expressly set forth herein the execution, delivery, and performance of this
Amendment Agreement shall not operate as a waiver or an amendment of any right,
Each of the Loan Parties hereby ratifies and confirms in all respects all of its
7. No Novation; Entire Agreement. This Amendment Agreement evidences solely the
amendment of the terms and provisions of the obligations of the Existing
Borrower and the
3
Existing Borrower, the other Loan Parties, the Administrative Agent and the
Lenders regarding the subject matter hereof or thereof.
8. Choice of Law. This Amendment Agreement shall be governed by, and construed
9. Counterparts; Facsimile Execution. This Amendment Agreement may be executed
Amendment Agreement by facsimile shall be as effective as delivery of a manually
executed counterpart of this Amendment Agreement.
10. Construction. This Amendment Agreement is a Loan Document. This Amendment
Agreement and the Credit Agreement shall be construed collectively and in the
Agreement shall supersede and control the terms, provisions and conditions of
the Credit Agreement. Upon and after the effectiveness of this Amendment
4
EXISTING BORROWER:
GSI GROUP CORPORATION
By: /s/ Robert Buckley Name: Robert Buckley Title: Chief Financial Officer
NEW BORROWER:
NDS SURGICAL IMAGING, LLC
HOLDINGS:
GSI GROUP INC.
GUARANTORS:
MICROE SYSTEMS CORP.
MES INTERNATIONAL INC.
QUANTRONIX CORPORATION
SYNRAD, INC.
GSI GROUP LIMITED By: /s/ Robert Buckley Name: Robert Buckley Title: Director
[Amendment Agreement]
Administrative Agent
By: /s/ Angela Larkin Name: Angela Larkin
[Amendment Agreement]
John F. Lynch Name: John F. Lynch
Title: SVP
[Amendment Agreement]
SILICON VALLEY BANK By: /s/ Michael Shuhy Name: Michael Shuhy
Title: Vice President
[Amendment Agreement]
Title: Vice President
[Amendment Agreement]
TD BANK, N.A. By: /s/ Amy LeBlanc Hackett Name: Amy LeBlanc Hackett
Title: SVP
[Amendment Agreement]
JPMORGAN CHASE BANK, N.A. By: /s/ Peter M. Killea Name: Peter M. Killea
[Amendment Agreement]
BROWN BROTHERS HARRIMAN & CO. By: /s/ Jed Hall Name: Jed Hall Title:
Managing Director
[Amendment Agreement]
ANNEX I
AMENDED FORM OF
among
GSI Group Corporation,
as Holdings,
and
SILICON VALLEY BANK,
as Syndication Agent
as Documentation Agent
TABLE OF CONTENTS
Section
Page
1 1.01 Defined Terms 1 1.02 Other Interpretive Provisions
33 1.03 Accounting Terms 34 1.04 Rounding 35 1.05
Times of Day 35 1.06 Letter of Credit Amounts 35 1.07
Exchange Rates; Currency Equivalents Generally 35
36 2.01 The Loans 36 2.02 Borrowings, Conversions and
Continuations of Loans 37 2.03 Letters of Credit 38 2.04
Swing Line Loans 48 2.05 Prepayments 51 2.06 Termination
or Reduction of Commitments 54 2.07 Repayment of Loans 54
2.08 Interest 55 2.09 Fees 56 2.10 Computation of
Interest and Fees; Retroactive Adjustments of Applicable Rate 57 2.11
Evidence of Debt 57 2.12 Payments Generally; Administrative Agent’s
Clawback 58 2.13 Sharing of Payments by Lenders 60 2.14
61 2.15 Increase in Revolving Credit Facility 62 2.16
Increase in Term Facility 64 2.17 Cash Collateral 65 2.18
Defaulting Lenders 67
68 3.01 Taxes 68 3.02 Illegality 73 3.03
Inability to Determine Rates 73 3.04 Increased Costs 74 3.05
Compensation for Losses 75 3.06 Mitigation Obligations;
Replacement of Lenders 76 3.07 Survival 76 3.08
Designation of Lead Borrower as Borrowers’ Agent 76
i
77 4.01 Conditions of Initial Credit Extension 77 4.02
80 5.01 Existence, Qualification and Power 80 5.02
Authorization; No Contravention 81 5.03 Governmental Authorization;
Other Consents 81 5.04 Binding Effect 81 5.05 Financial
Statements; No Material Adverse Effect 81 5.06 Litigation 82
5.07 No Default 82 5.08 Ownership of Property; Liens; Investments
83 5.09 Environmental Compliance 84 5.10 Insurance 84
5.11 Taxes 85 5.12 ERISA Compliance 85 5.13
Subsidiaries; Equity Interests; Loan Parties 86 5.14 Margin
Regulations; Investment Company Act 87 5.15 Disclosure 87
5.16 Compliance with Laws 87 5.17 Intellectual Property; Licenses,
Etc. 88 5.18 Solvency 88 5.19 Casualty, Etc. 88
5.20 Labor Matters 88 5.21 Collateral Documents 88 5.22
Subordination of Permitted Subordinated Debt 89
89 6.01 Financial Statements 89 6.02 Certificates; Other
Information 90 6.03 Notices 93 6.04 Payment of Obligations
93 6.05 Preservation of Existence, Etc. 94 6.06
Maintenance of Properties 94 6.07 Maintenance of Insurance 94
6.08 Compliance with Laws 94 6.09 Books and Records 94
6.10 Inspection Rights 95 6.11 Use of Proceeds 95 6.12
Covenant to Guarantee Obligations and Give Security 95 6.13
Compliance with Environmental Laws 98 6.14 Further Assurances 98
6.15 Material Contracts 99
ii
99 7.01 Liens 99 7.02 Indebtedness 102 7.03
Investments 105 7.04 Fundamental Changes 107 7.05
Dispositions 108 7.06 Restricted Payments 109 7.07 Change
in Nature of Business 111 7.08 Transactions with Affiliates 111
7.09 Use of Proceeds 111 7.10 Financial Covenants 112
7.11 Amendments of Organization Documents 112 7.12 Accounting
Changes 112 7.13 Prepayments, Amendments, Etc. of Indebtedness
112
112 8.01 Events of Default 112 8.02 Remedies upon Event of
Default 115 8.03 Application of Funds 116
117 9.01 Appointment and Authority 117 9.02 Rights as a
Lender 117 9.03 Exculpatory Provisions 118 9.04 Reliance
by Administrative Agent 119 9.05 Delegation of Duties 119
9.06 Resignation of Administrative Agent 119 9.07 Non-Reliance on
Administrative Agent and Other Lenders 120 9.08 No Other Duties, Etc.
120 9.09 Administrative Agent May File Proofs of Claim 121
9.10 Collateral and Guaranty Matters 121 9.11 Secured Cash
Management Agreements and Secured Hedge Agreements 122
122 10.01 Guaranty 122 10.02 Rights of Lenders 123
10.03 Certain Waivers 123 10.04 Obligations Independent 124
10.05 Subrogation 124 10.06 Termination; Reinstatement 124
10.07 Subordination 124 10.08 Stay of Acceleration 124
10.09 Condition of Borrowers 125
iii
10.10 Rights of Contribution 125 10.11 Joint and Several
Obligations 125
ARTICLE XI. MISCELLANEOUS
126 11.01 Amendments, Etc. 126 11.02 Notices;
Effectiveness; Electronic Communications 129 11.03 No Waiver;
Cumulative Remedies; Enforcement 131 11.04 Expenses; Indemnity;
Damage Waiver 132 11.05 Payments Set Aside 134 11.06
Successors and Assigns 134 11.07 Treatment of Certain Information;
Confidentiality 140 11.08 Right of Setoff 141 11.09
Interest Rate Limitation 141 11.10 Canadian Interest Act 142
11.11 Counterparts; Integration; Effectiveness 142 11.12 Survival
of Representations and Warranties 142 11.13 Severability 142
11.14 Replacement of Lenders 143 11.15 Governing Law;
Jurisdiction; Etc. 143 11.16 Waiver of Jury Trial 144 11.17
No Advisory or Fiduciary Responsibility 145 11.18 Electronic
Execution of Assignments and Certain Other Documents 145 11.19 USA
PATRIOT Act 145 11.20 Judgment Currency 146 11.21 Amended
and Restated Agreement 146
SIGNATURES
S-1
iv
SCHEDULES
1.01
Existing Letters of Credit
2.01
Commitments and Applicable Percentages
5.05
5.08(b)
Existing Liens
5.08(c)
Owned Real Property
5.08(e)
Existing Investments
5.09
Environmental Matters
5.13
5.17
Intellectual Property Matters
6.12
Guarantors
7.02
Existing Indebtedness
7.05
Certain Properties
11.02
EXHIBITS
Form of
A
Committed Loan Notice
B
Swing Line Loan Notice
C-1
Revolving Credit Note
C-2
Term Note
D
Compliance Certificate
E-1
Assignment and Assumption
E-2
Administrative Questionnaire
F-1
Guaranty Supplement
F-2
[Reserved]
G-1
[Reserved]
G-2
[Reserved]
G-3
[Reserved]
H
[Reserved]
I
[Reserved]
J
Foreign Lender Certificate
K
Responsible Officer Certificate
L
Solvency Certificate
M
[Reserved]
N
Permitted Acquisition Certificate
v
CREDIT AGREEMENT
December 27, 2012, among GSI Group Corporation, a Michigan corporation (the
“Lead Borrower”), NDS SURGICAL IMAGING, LLC, a Delaware limited liability
company (jointly and severally together with the Lead Borrower and each other
Line Lender and L/C Issuer, SILICON VALLEY BANK, as Syndication Agent and HSBC
BANK USA, N.A. as Documentation Agent.
PRELIMINARY STATEMENTS:
The Borrowers have requested that the Lenders provide a term loan facility and a
herein.
Prior to the date of this Agreement, the Borrowers and the Guarantors on the one
hand and Bank of America, N.A. as the Administrative Agent, and the lenders
party thereto entered into that certain Credit Agreement, dated as of
October 19, 2011 (as amended and in effect, the “Original Credit Agreement”),
pursuant to which the lenders party thereto provided the Borrowers and
Guarantors with certain financial accommodations.
In accordance with 11.01 of the Original Credit Agreement, the Borrowers, the
the Original Credit Agreement as provided herein.
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms
below:
Administrative Agent.
“Ancillary Document Confirmation” means the Confirmation and Amendment of
Ancillary Loan Documents dated as of the Restatement Date by and among the Loan
Facility, (a) from the Restatement Date to the date on which the Administrative
fiscal quarter ending March 29, 2013, 0.30% per annum and (b) thereafter, the
Applicable Fee Rate
Pricing
Level
Consolidated Leverage Ratio
Commitment
Fee 1 < 1.0:1.0 0.25 % 2 ³ 1.0:1.0 but < 1.5:1.0 0.30 % 3
³ 1.5:1.0 but < 2.0:1.0 0.375 % 4 ³ 2.0:1.0 but < 2.5:1.0 0.50 %
5 ³ 2.5:1.0 0.625 %
2
place) of the Term Facility represented by (i) prior to the Restatement Date,
fiscal quarter ending March 29, 2013, 1.25% per annum for Base Rate Loans and
2.25% per annum for Eurodollar Rate Loans and Letter of Credit Fees and
Applicable Rate
Pricing
Level
Consolidated Leverage Ratio
Eurodollar Rate
(Letters of Credit) Base Rate 1 < 1.0:1.0 2.00% 1.00%
2 ³ 1.0:1.0 but < 1.5:1.0 2.25% 1.25% 3 ³ 1.5:1.0 but <
2.0:1.0 2.50% 1.50% 4 ³ 2.0:1.0 but < 2.5:1.0 2.75%
1.75% 5 ³ 2.5:1.0 3.00% 2.00%
3
the Required Term Lenders and the Required Revolving Lenders, Pricing Level 5
Certificate is delivered.
Administrative Agent.
4
Holdings and its Subsidiaries for the fiscal year ended December 31, 2011, and
period from and including the Restatement Date to the Maturity Date for the
Revolving Credit Facility.
paragraph hereto.
pledge agreement, each dated as of the Closing Date, governed by Canadian law
and securing the assets
5
of the Loan Parties organized under Canadian Law, in substantially the form of
Exhibit G-3 to the Original Credit Agreement, each duly executed by each
applicable Loan Party, as the same may be supplemented, modified, amended and/or
extent owned by any Borrower or any Subsidiary free and clear of all Liens
permitted hereunder):
6
and
the equivalent thereof; provided in each case that such Investment matures
within one year from the date of acquisition thereof by such Foreign Subsidiary.
Agency.
of the Code.
7
issued.
contract or otherwise.
“Closing Date” means the closing date of the Original Credit Agreement,
8
Supplements, each of the Collateral Access Agreements, the Ancillary Document
Confirmation, any security agreements, pledge agreements or other similar
Secured Parties.
context may require.
Exhibit D.
entered into for the purpose of hedging interest rate risk during such period;
(ii) the provision for federal, state, local and foreign income and other
similar taxes for such period, including all taxes reported as “income taxes” on
Holding’s consolidated financial statements for such period; (iii) depreciation
and amortization expense for such period; (iv) unusual or non-recurring charges,
including (x) restructuring charges from ongoing operations and divestitures
(I) in an amount not to exceed $10,000,000 in the aggregate during any
Measurement Period from the Restatement Date through June 30, 2013 and (II) in
an amount not to exceed $5,000,000 in the aggregate during any Measurement
Period thereafter, and (y) restructuring charges, fees, expenses and charges
incurred in respect of acquisitions, equity issuances, indebtedness and
investments (whether or not consummated), for which consent from Lenders is not
otherwise required under the terms of this Agreement, in an amount not to exceed
$7,500,000 in the aggregate during any Measurement Period; (v) Non-Cash Charges
Consolidated Net Income for such period, (i) non-cash income or gains, all as
determined in accordance with GAAP and (ii) earnings from equity method
investments less the aggregate amount of cash actually distributed by such
Person during such Measurement Period to Holdings or a Subsidiary as dividend or
other distribution.
9
aggregate scheduled amortization payments under Section 2.07(a) (regardless of
whether optional prepayments under Section 2.05(a) were applied to such
installments), for so long as any amounts are outstanding under the Term Loan
Facility, (iii) the aggregate principal amount of all other regularly scheduled
principal payments or redemptions or similar acquisitions for value of
Capitalized Leases that is treated as interest in accordance with GAAP), but
excluding any voluntary repayments and redemptions to the extent refinanced
under Section 7.02, and (iv) the aggregate amount of all Restricted Payments
made pursuant to Sections 7.06(d) or (e), in each case, of or by Holdings and
in which any Borrower or a Subsidiary is a general partner or joint venturer,
unless such Indebtedness is expressly made non-recourse to such Borrower or such
10
cured or waived.
Credit Extension.
generally.
Event of Default.
notified the Lead Borrower, the Administrative Agent or any Lender that it does
acquiescence in any such proceeding, or appointment; provided that a Lender
11
associated therewith.
is 180 days after the Maturity Date of the Term Loans at the time such Equity
“Documentation Agent” means HSBC Bank USA, N.A. in its capacity as documentation
Treaty of 2007.
12
systems.
Pledgees.
partial withdrawal by any Borrower or any
13
Pension Plan pursuant to Section 4041(c) of ERISA or the treatment of a
ERISA; (e) the commencement of proceedings by the PBGC to terminate a Pension
with respect to a Pension Plan or a Multiemployer Plan, other than for PBGC
14
Revolving Credit Facility at such time minus (b) Total Revolving Credit
it (in lieu of net income Taxes), (x) by the jurisdiction (or any political
subdivision thereof) of the Governmental Authority imposing such Tax (other than
jurisdiction in which any Borrower is located, (c) any backup withholding Tax
that is required by the Code to be withheld from amounts payable to a recipient
Lead Borrower under Section 11.14), any United States withholding Tax that
pursuant to Section 3.01(a)(ii) and (e) any Taxes imposed under FATCA.
Original Credit Agreement and described in Schedule 1.01.
15
(as such term is defined in the Original Credit Agreement) of the Existing
Revolving Credit Lenders under the Original Credit Agreement.
is defined in the Original Credit Agreement) under the Original Credit
Agreement.
is defined in the Original Credit Agreement) of the Existing Revolving Credit
Lenders under the Original Credit Agreement.
Original Credit Agreement) under the Original Credit Agreement.
Original Credit Agreement) of the Existing Term Lenders under the Original
Credit Agreement.
context may require.
Agent.
“Fee Letter” means the letter agreement, dated as of the Restatement Date, among
16
jurisdiction.
Interest Pledge Agreements.
States.
17
corresponding meaning.
financial statements are
18
available, have, individually or collectively with all other Domestic
Subsidiaries which are wholly-owned by any Loan Party but are not Guarantors,
and its Subsidiaries on a consolidated basis for the period of four consecutive
fiscal quarters ended on such day.
similar instruments;
of business);
recourse;
unpaid dividends; and
19
the Restatement Date pursuant to Section 2.01(b).
time.
definition).
thereafter, as selected by the Lead Borrower in its Committed Loan Notice or
such other period that is twelve months or less requested by the Lead Borrower
and consented to by all the Appropriate Lenders; provided that:
20
decreases in the value of such Investment. If any Borrower or any Subsidiary
issues, sells or otherwise disposes of any Equity Interests of a Person that is
a Subsidiary (in a Disposition permitted hereunder) such that, after giving
effect thereto, such Person is no longer a Subsidiary, any Investment by such
Borrower or such Subsidiary in such person remaining after giving effect thereto
will not be deemed to be a new Investment at such time. Except as otherwise
provided for herein, the amount of an Investment shall be its fair market value
changes in value.
issuance).
Dollars.
denominated in Dollars.
thereof.
21
the Administrative Agent.
Dollars or in Euros.
Facility.
of this Agreement.
22
Holdings and its Subsidiaries for the immediately preceding fiscal year and
which contract, if terminated prior to its stated expiration date, could
Facility, the earliest of (x) December 27, 2017 (or, if maturity is extended
(x) December 27, 2017 (or, if maturity is extended pursuant to Section 2.14,
such extended maturity date as determined pursuant to such Section), (y) the
date of prepayment of the Term Loans in full in cash pursuant to Section 2.05,
and (z) the date of acceleration of the Loans pursuant to Section 8.02;
23
ERISA.
connection therewith.
arrangements.
“New Revolving Credit Lender” means a Revolving Credit Lender that was not an
Existing Revolving Credit Lender.
24
other Loan Document.
25
Employer Plan) that is maintained or is contributed to by any Borrower and any
Multiemployer Plan.
26
or other entity.
Agreement.
Agreement.
Disqualified Equity Interests.
Agreement.
Notice.
27
of Required Lenders.
Required Revolving Lenders.
“Responsible Officer” means (a) with respect to the Lead Borrower or Holdings,
matters, and for any Loan Party other than the Lead Borrower or Holdings, any
other senior executive officer of the applicable Loan Party so designated by any
of the foregoing officers listed in clause (a) of this definition in a notice to
“Restatement Date” means the first date all the conditions precedent in Sections
distribution or payment.
28
Documents.
29
“Security Agreement” means the security agreement executed as of the Closing
Date, in substantially the form of Exhibit G-1 to the Original Credit Agreement
delivered pursuant to Section 6.12, in each case as amended.
Security Agreement.
matured liability.
denominated in Euros.
Holdings.
30
Master Agreement.
Lender).
Section 2.04.
Exhibit B.
31
accounting treatment); provided that the amount of any obligation in respect of
any sale-leaseback transaction shall be the present value, discounted in
accordance with GAAP (as in effect on the date hereof) at the interest rate
such time.
intended to be a party,
32
(b) the refinancing of certain outstanding Indebtedness of the Borrowers and
their Subsidiaries and the termination of all commitments with respect thereto,
Eurodollar Rate Loan.
“UK Security Agreement” means the security agreement dated as of the Closing
Date and governed by United Kingdom law securing the assets of the Loan Parties
organized under United Kingdom Law, in substantially the form of Exhibit G-2 to
the Original Credit Agreement, as the same may be supplemented, modified,
amended and/or restated or replaced from time to time.
1.02 Other Interpretive Provisions
33
contract rights.
including.”
1.03 Accounting Terms
34
1.04 Rounding
1.05 Times of Day
currency with Dollars.
35
ARTICLE II.
2.01 The Loans
severally agrees to make a single loan to the Borrowers on the Restatement Date
in an amount not to exceed such Term Lender’s Term Commitment. The Term
accordance with their respective Term Commitments. Amounts borrowed under this
Base Rate Loans or Eurodollar Rate Loans as further provided herein.
(ii) Proceeds of the Term Loans shall be applied as follows:
(A) First, to repay the Existing Term Loans in full, together with accrued
interest thereon and any amounts payable under Section 3.05 of the Original
Credit Agreement;
(B) Second, to repay the Existing Revolving Credit Loans in full, together with
accrued interest thereon and any amounts payable under Section 3.05 of the
(C) Last, to the Borrowers.
herein.
36
continuation of Eurodollar Rate Loans shall be made upon the Lead Borrower’s
any Borrowing of Base Rate Loans. Each telephonic notice by the Lead Borrower
respect thereto. If the Borrowers fail to specify a Type of Loan in a Committed
of Eurodollar Rate Loans in any such Committed Loan Notice, but fail to specify
37
Required Lenders.
Revolving Credit Facility.
(f) Anything in this Section 2.02 to the contrary notwithstanding, the Borrowers
2.03 Letters of Credit
period from the Restatement Date until the Letter of Credit Expiration Date, to
Borrowers or their Subsidiaries that are Guarantors, and to amend or extend
the account of the Borrowers or their Subsidiaries that are Guarantors and any
Outstanding Amount of the
38
issued pursuant hereto, and from and after the Restatement Date shall be subject
or
Credit if:
cost or expense which was not applicable on the Restatement Date and which the
39
or Euros;
discretion.
Credit.
Issuer.
Letters of Credit.
40
of Credit.
permit the extension of such Letter of
41
Revolving Credit Lender or the Lead Borrower that one or more of the applicable
(B) from the Administrative Agent, any Lender or the Lead Borrower that one or
reinstatement.
amendment.
denominated in Euros, the Borrowers shall reimburse the L/C Issuer in Euros,
that it will require reimbursement in Dollars,
42
Lead Borrower shall have notified the L/C Issuer promptly following receipt of
the notice of drawing that the Borrowers will reimburse the L/C Issuer in
Letter of Credit denominated in Euros, the L/C Issuer shall notify the Lead
following the determination. Not later than 11:00 a.m. on the date of any
Letter of Credit to be reimbursed in Euros (each such date, an “Honor Date”),
such event, the Borrowers shall be deemed to have requested a Revolving Credit
such notice.
Dollars.
43
absent manifest error.
respect of the related
44
including the following:
45
the Euro to any Borrower or any Subsidiary or in the relevant currency markets
generally; or
their Subsidiaries.
46
and are nonrefundable.
control.
47
2.04 Swing Line Loans
Lender’s Revolving Credit Commitment, and provided further that the Borrowers
Lender will notify the Administrative Agent (by telephone or
48
their offices by crediting the account of the Borrowers on the books of the
is immediately available to the Swing Line Lender at a rate per
49
provided herein.
50
2.05 Prepayments
thereof in direct order of maturity (unless otherwise directed by the Lead
Borrower), and each such prepayment shall be paid to the Lenders in accordance
Facilities.
therein.
51
(as notified by the Lead Borrower to the Administrative Agent on or prior to the
date of such Disposition), and so long as no Default shall have occurred and be
in each of cases (x) and (y) as certified by the Lead Borrower in writing to the
the Borrowers (as notified by the Lead Borrower to the Administrative Agent on
52
Loans on such date is less than or equal to $1,000,000, the Borrowers may defer
such deferral period the Borrowers may apply all or any part of such aggregate
Default during any such deferral period, the Borrowers shall immediately prepay
the Loans in the amount of all Net Cash Proceeds received by the Borrowers and
53
Credit Sublimit.
2.07 Repayment of Loans
54
(a) Term Loans. The Borrowers shall repay to the Term Lenders the aggregate
Date
Amount
January 15, 2013
$ 1,875,000
April 15, 2013
$ 1,875,000
July 15, 2013
$ 1,875,000
October 15, 2013
$ 1,875,000
January 15, 2014
$ 1,875,000
April 15, 2014
$ 1,875,000
July 15, 2014
$ 1,875,000
October 15, 2014
$ 1,875,000
January 15, 2015
$ 1,875,000
April 15, 2015
$ 1,875,000
July 15, 2015
$ 1,875,000
October 15, 2015
$ 1,875,000
January 15, 2016
$ 1,875,000
April 15, 2016
$ 1,875,000
July 15, 2016
$ 1,875,000
October 15, 2016
$ 1,875,000
January 15, 2017
$ 1,875,000
April 15, 2017
$ 1,875,000
July 15, 2017
$ 1,875,000
October 15, 2017
$ 1,875,000
2.08 Interest
the
55
(b)
applicable Laws.
2.09 Fees
in effect.
56
reason whatsoever.
Rate
2.11 Evidence of Debt
Administrative Agent and each
57
manifest error.
(b)
58
absent manifest error.
59
parties.
60
Facility
“Additional Commitment
61
Lender”) as provided in Section 11.14; provided that each of such Additional
Maturity Date, undertake a Revolving Credit Commitment or a Term Loan (and, if
any such Additional Commitment Lender in respect of the Revolving Credit
Facility is already a Revolving Credit Lender, its Revolving Credit Commitment
hereunder on such date; if any such Additional Commitment Lender in respect of
the Term Facility is already a Term Lender, its Term Loan shall be in addition
to any other Term Loan of such Lender).
correct on and as of the Existing Maturity Date, except to the extent that such
to Section 3.05) to the extent necessary to keep outstanding Committed Loans
the
62
under Section 2.16) not exceeding $50,000,000; provided that any such request
sending such notice, the Borrowers (in consultation with the Administrative
Commitment.
The Administrative Agent shall notify the Borrowers and each Revolving Credit
Effective Date.
case of the Lead Borrower, certifying that, before and after giving effect to
Section 6.01, and (B) no Default or Event of Default exists. The Borrowers shall
Section.
63
Borrowers may from time to time, request an increase in the Term Loans or a new
minimum amount of $5,000,000. At the time of the Lead Borrower sending such
notice, the Lead Borrower, on behalf of the Borrowers (in consultation with the
and its counsel.
Documents, executed by Holdings, each Borrower, each participating Term Lender,
if any, each additional
64
lender, if any, and the Administrative Agent or (b) such Incremental Tranche
Credit Loans and the Term Loans, (ii) shall not mature earlier than the Maturity
Date and shall have a weighted average life to maturity no shorter than the
amortization of or prepayment of such Term Loans prior to such date of
to mandatory and voluntary prepayments), provided that the interest rates and
appropriate, the other Loan Documents, executed by Holdings, each Borrower, each
all Lenders (and not any one Lender) providing such Incremental Tranche)
relating to such Incremental Tranche minus 0.50%.
increase, the Borrowers shall deliver to the Administrative Agent a certificate
2.17 Cash Collateral
request under any
65
Letter of Credit and such drawing has resulted in an L/C Borrowing, the
Borrowers shall immediately Cash Collateralize the then Outstanding Amount of
all L/C Obligations in an amount equal to 100% of such Outstanding Amount, or
outstanding, the Borrowers shall immediately Cash Collateralize the then
Outstanding Amount of all L/C Obligations in an amount equal to 105% of such
Outstanding Amount. At any time that there shall exist a Defaulting Lender,
promptly following the request of the Administrative Agent, the L/C Issuer or
Defaulting Lender).
deficiency.
provided for herein.
66
2.18 Defaulting Lenders
applicable Law:
hereto.
67
ARTICLE III.
3.01 Taxes
Taxes.
Borrower, any
68
other Loan Party or the Administrative Agent to withhold or deduct any Tax, such
such Borrower, such other Loan Party or the Administrative Agent, as the case
limiting the provisions of subsection (a) above, each Borrower and each other
Borrower and each other Loan Party shall, and do hereby, jointly and severally,
manifest error.
and the L/C Issuer shall, and does hereby, severally indemnify the
Administrative
69
Agent, and shall make payment in respect thereof within 20 days after demand
incurred by or asserted against any Borrower or the Administrative Agent by any
Lender or the L/C Issuer, as the case may be, to any Borrower, any other Loan
Party or the Administrative Agent pursuant to subsection (e). Each Lender and
jurisdiction.
70
(A) any Lender, the L/C Issuer or the Administrative Agent that is a “United
which such Person becomes a party to this Agreement executed originals of
prescribed by applicable Laws or reasonably requested by the Lead Borrower or
the Administrative Agent as will enable the Borrowers or the Administrative
party,
required supporting documentation,
comply with the applicable reporting requirements of FATCA
71
times reasonably requested by the Lead Borrower or the Administrative Agent such
withhold from such payment. Solely for purposes of this clause
which it has been indemnified by any Borrower or any other Loan Party, as the
case may be or with respect to which any Borrower or any other Loan Party, as
pay to such Borrower or such other Loan Party, as the case may be an amount
additional amounts paid, by such Borrower or such other Loan Party, as the case
may be under this Section with respect to the Taxes or Other Taxes giving rise
72
3.02 Illegality
such Lender notifies the Administrative Agent and the Lead Borrower that the
Lenders) revokes such notice. Upon receipt of such notice,
73
3.04 Increased Costs
Issuer;
reduction suffered.
74
thereof).
such notice.
3.05 Compensation for Losses
otherwise);
Borrower; or
75
to Section 11.14;
Section 11.14.
3.07 Survival
3.08 Designation of Lead Borrower as Borrowers’ Agent
other notices with respect to Loans and Letters of Credit
76
under this Agreement and (iii) to take such action as the Lead Borrower deems
appropriate on their behalf to obtain Loans and Letters of Credit and to
purposes of this Agreement and the other Loan Documents. As the disclosed
principal for its agent, each Borrower shall be obligated to each Secured Party
Person to such Borrower, notwithstanding the manner by which such Credit
Loan Documents. Such appointment shall remain in full force and effect unless
and until Administrative Agent shall have received prior written notice signed
by each Borrower and each other Loan Party that such appointment has been
revoked and that another Borrower has been appointed Lead Borrower.
Credit Extension. Neither the Administrative Agent, nor any other Secured Party
simultaneously.
ARTICLE IV.
governmental officials, a recent date before the Restatement Date):
77
(iii) an Ancillary Document Confirmation, along with:
(A) completed requests for information, dated on or before the date of the
Collateral described in the Security Agreement that name any Loan Party as
debtor, together with copies of such financing statements as have been filed
since the Closing Date,
(B) evidence that all action that the Administrative Agent may deem necessary or
desirable in order to perfect the Liens created under the Security Agreement has
been taken;
(iv) a certificate of an authorized officer of each Loan Party, attaching:
(a) either (x) a copy of the articles or certificate of incorporation of such
of organization (or comparable official in the United Kingdom and Canada) of
such Loan Party or (y) a certification by a Responsible Officer of such Loan
Party that no changes have been made to such articles or certificate since the
Closing Date, in either case together with certificates of such official
attesting to the valid existence, good standing and qualification to engage in
business in such Loan Party’s jurisdiction of organization; (b) either (x) the
bylaws or operating agreement (or equivalent such constitutional document), as
applicable, of such Loan Party as in effect on the date of such certification or
(y) a certification by a Responsible Officer of such Loan Party that no changes
have been made to such bylaws or operating agreement since the Closing Date; and
(c) such certificates of resolutions or other action, incumbency and/or other
Administrative Agent;
jurisdiction of organization of any Loan Party, addressed to the Administrative
Loan Documents as the Administrative Agent may reasonably request, in form and
78
(viii) a certificate, substantially in the form of Exhibit K, signed by a
(ix) a certificate, substantially in the form of Exhibit L, from each Loan Party
the Transaction, from its chief financial officer or other Responsible Officer;
reasonably may require.
Arranger on or before the Restatement Date shall have been paid and (ii) all
fees required to be paid to the Lenders on or before the Restatement Date shall
have been paid.
prior to or on the Restatement Date, plus such additional amounts of such fees,
(d) No changes or developments shall have occurred, and no new or additional
December 31, 2011 that (A) either individually or in the aggregate could
(e) There shall be no actions, suits, proceedings, claims or disputes pending
or, to the knowledge of any Borrower, threatened in writing or contemplated, at
properties or revenues that either individually or in the aggregate, if
Effect.
79
conditions precedent:
such respective dates.
Extension.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
Lenders that:
jurisdiction where its
80
5.04 Binding Effect
principals of equity.
financial condition of the Borrowers and their Subsidiaries as of the date
thereof and their results of operations for the period covered
81
covered thereby, except as otherwise expressly noted therein; and (iii) except
as disclosed in Schedule 5.05, show all material indebtedness and other
liabilities, direct or contingent, of the Borrowers and their Subsidiaries as of
Indebtedness.
adjustments.
at September 30, 2012, and the related consolidated pro forma statements of
income and cash flows of the Borrowers and their Subsidiaries for the 6 months
then ended, certified by the chief financial officer or treasurer of the Lead
consolidated pro forma financial condition of Holdings and its Subsidiaries as
at such date and the consolidated pro forma results of operations of Holdings
effect to the Transaction, all in accordance with GAAP.
delivery, the Lead Borrower’s best estimate of its future financial condition
and performance.
5.06 Litigation
knowledge of any Borrower, threatened in writing or contemplated, at law, in
Borrower or any of their Subsidiaries or against any of their properties or
Material Adverse Effect.
5.07 No Default
82
Loan Document.
Adverse Effect.
(d)
state, lessor, lessee, expiration date and annual rental cost thereof. To the
knowledge of any Borrower, each such lease is the legal, valid and binding
except as may be limited by Debtor Relief Laws or by general principals of
equity.
cost thereof. To the knowledge of any Borrower, each such lease is the legal,
principals of equity and except as could not reasonably be expected to have a
Material Adverse Effect.
83
any, thereof.
5.09 Environmental Compliance
(a) Except as otherwise set forth in Schedule 5.09, the Borrowers and their
Borrowers or their Subsidiaries are subject to Environmental Liability that
Material Adverse Effect.
currently or, to the knowledge of any Borrower, formerly owned or operated by
knowledge of any Borrower, on any property formerly owned or operated by any
Loan Party or any of its Subsidiaries that, in either case would require any
material reporting, investigation, assessment, remediation or response action;
currently or to the knowledge of any Borrower formerly owned or operated by any
action.
5.10 Insurance
84
Subsidiary operates.
5.11 Taxes
5.12 ERISA Compliance
provisions of ERISA, the Code and other Federal or state Laws and (ii) each
which any Borrower or any ERISA Affiliate is entitled rely under applicable
of any Borrower, nothing has occurred that would prevent, or cause the loss of,
knowledge of any Borrower, there has been no prohibited transaction or violation
Multiemployer
85
Plan, (iii) no Borrower nor any ERISA Affiliate is aware of any fact, event or
ERISA Event with respect to any Pension Plan or Multiemployer Plan; (iv) each
or obtained; (v) neither any Borrower nor any ERISA Affiliate has incurred any
premium payments which have become due that are unpaid; (vi) neither any
each of the foregoing clauses of this Section 5.12(c), as would not reasonably
be expected, individually or in the aggregate, to result in any material
liability.
As of the Restatement Date (or the date of any updated schedules delivered
pursuant to Section 6.02(h) or any supplements delivered pursuant to
the Collateral Documents. No Loan Party has any equity investments in any other
corporation or entity other than those
86
non-assessable and are owned by Holdings free and clear of all Liens except
those created under the Collateral Documents. Set forth on Part (c) of Schedule
issued to it by the jurisdiction of its incorporation. As of the Restatement
provided pursuant to Section 4.01(a) (or pursuant to Section 4.01(a) of the
Original Credit Agreement, as applicable) is a true and correct copy of each
(b) No Borrower, no Person Controlling any Borrower, nor any Subsidiary is or is
5.15 Disclosure
of their Subsidiaries or any other Loan Party is subject, and all other matters
5.16 Compliance with Laws
87
and owned by each Loan Party as of the Restatement Date or the date of any
updated schedules delivered in accordance with Section 6.02(h) or any
of any Borrower, the use of any IP Rights (including the licensing of any such
rights of any Person. As of the Restatement Date or the date of any supplements
5.18 Solvency
Material Adverse Effect.
5.20 Labor Matters
the employees of any Borrower or any of their Subsidiaries as of the Restatement
years.
5.21 Collateral Documents
88
ARTICLE VI.
AFFIRMATIVE COVENANTS
6.01 Financial Statements
2012), a consolidated balance sheet of Holdings and its Subsidiaries as at the
resulting from an upcoming maturity date with respect to any Indebtedness of any
Loan Party (including Indebtedness under this Agreement) occurring within one
year from the time such report and opinion are delivered);
with the fiscal quarter ended March 29, 2013), a consolidated balance sheet of
year and the corresponding portion of the
89
Officer of Holdings as fairly presenting the financial condition, results of
operations, shareholders’ equity and cash flows Holdings and its Subsidiaries in
absence of footnotes;
management of the Lead Borrower of consolidated balance sheets and statements of
prepared for the board of directors of the Lead Borrower.
therein.
statements for the fiscal year ended December 31, 2012), a duly completed
90
mark applications and copyright applications submitted by any Loan Party or any
each such report to be signed by a Responsible Officer of the Lead Borrower and
to be in a form reasonably satisfactory to the Administrative Agent, and, where
executed by the applicable Loan Party; and
91
(i) promptly, to the extent permitted by (i) the confidentiality provisions of
request.
whether sponsored by the Administrative Agent); provided that: (i) the Lead
Notwithstanding anything contained herein, in every instance the Lead Borrower
documents.
Federal and state securities laws
92
6.03 Notices.
of any Default;
(b) Promptly (and in any event, within five Business Days of any Borrower’s
6.04 Payment of Obligations
with GAAP are being maintained by such Borrower or such
93
upon its property (other than a Lien permitted under Section 7.01); and (c) all
Indebtedness in excess of the Threshold Amount, as and when due and payable, but
subject to any applicable grace periods or subordination provisions contained in
Material Adverse Effect.
6.06 Maintenance of Properties
facilities.
6.07 Maintenance of Insurance
6.08 Compliance with Laws
94
6.09 Books and Records
6.10 Inspection Rights
6.11 Use of Proceeds
Original Credit Agreement.
of Holdings (other than any Excluded Subsidiary) by any Loan Party, then the
supplement in the form of Exhibit F-1, guaranteeing the other Loan Parties’
obligations under the Loan Documents; provided that if any such Subsidiary is a
direct Subsidiary of Holdings (other than an Excluded Subsidiary), such
Subsidiary shall become a Borrower under this Agreement pursuant to an
assumption agreement reasonably acceptable to the Administrative Agent,
95
security and pledge agreements, securing payment of all the Obligations of each
such Subsidiary under the Loan Documents and constituting Liens on all such real
and personal properties,
Administrative Agent,
96
reasonably request, and
Administrative Agent,
during the continuance of a Default, the Borrowers shall, at the Borrowers’
expense:
Agent,
agreements (but not with respect to any Excluded Assets (as defined in the
Security Agreement)), as specified by and in form and substance satisfactory to
the Administrative Agent (including delivery of all Pledged Interests and
Pledged Debt in and of such Subsidiary, and other security and pledge
agreements, securing payment of all the Obligations of the applicable Loan Party
under the Loan Documents and constituting Liens on all such properties,
97
terms,
reasonably request, and
with respect to each parcel of real property owned in fee by any Loan Party or
any Subsidiary, title reports, surveys and engineering, soils and other reports,
6.14 Further Assurances
98
so.
6.15 Material Contracts
ARTICLE VII.
NEGATIVE COVENANTS
7.01 Liens
following:
99
following clauses:
ERISA;
course of business;
Agreements;
GAAP;
100
case after the Restatement Date; provided that such Liens (i) do not extend to
Agreement;
any such Lien;
101
(q) other Liens affecting property with an aggregate fair value not to exceed
under Section 7.02
7.02 Indebtedness
102
exceed the then applicable market interest rate, and
(e) Guarantees of any Borrower or any Guarantor in respect of Indebtedness
otherwise permitted hereunder of any Borrower or any wholly-owned Subsidiary;
(g) Indebtedness of any Person that becomes a Subsidiary of Holdings and a
Indebtedness is existing at the time such Person becomes a Subsidiary of
Holdings (other than Indebtedness incurred solely in contemplation of such
Person’s becoming a Subsidiary of Holdings); and
surety bonds or performance bonds, in each case entered into in connection with
Permitted Acquisitions, other Investments or Dispositions permitted by this
Agreement;
forth in Section 7.10
103
obligations,
premiums,
Subsidiary of Holdings or any direct or indirect parent thereof, either existing
on the Restatement Date and disclosed in writing to the Administrative Agent and
Lenders or entered into in connection with a Permitted Acquisition, and
in supply agreements.
104
this Section 7.02.
7.03 Investments
Cash Equivalents and Investments that were cash or Cash Equivalents when made;
business purposes;
(iii) additional Investments by Subsidiaries that are not Loan Parties in other
aggregate amount invested pursuant to this subclause (iv) from the date hereof
105
Section 7.02;
Interests in, or all or substantially all of the property of, any Person (the
of a merger or consolidation) (a “Permitted Acquisition”), including investments
reasonable extension thereof;
Target;
day of the fiscal period covered thereby, (y) the Consolidated Leverage Ratio
for the twelve-month period ended as of the end of the most recent fiscal
Section 6.01(a) or (b) shall be no more than 2.25 : 1.00 calculated as though
the fiscal period covered thereby and (z) the Borrowers shall have Excess
Availability of at least $25,000,000; and
acquisition
106
contribution of the proceeds of any such purchase to the Borrowers;
Permitted Acquisition;
7.04 Fundamental Changes
result therefrom:
(a) any Subsidiary may merge with (i) any Borrower, provided that the applicable
other Subsidiaries, provided that when any Loan Party (other than Holdings) is
surviving Person;
Party (other than Holdings);
Loan Party;
a wholly-owned Subsidiary of Holdings and (ii) in the case of any such merger to
107
7.05 Dispositions
except:
Lead Borrower;
Property) for fair market value as determined in good faith by the Lead
Borrower, to the extent that (i) such equipment or real property is exchanged
proceeds of such Disposition of equipment or real property are reasonably
(iii) such Dispositions of leases of real or personal property are in the
thereof;
108
(i) Dispositions of property by any Subsidiary any Borrower or to a wholly-owned
Subsidiary of any Borrower; provided that if the transferor of such property is
a Guarantor, the transferee thereof must either be any Borrower or a Guarantor;
(l) Dispositions by any Borrower or any of its Subsidiaries not otherwise
(ii) such Disposition is at fair market value as determined in good faith by the
Lead Borrower and (iii) at least 75% of the purchase price for such asset shall
be paid to such Borrower or such Subsidiary solely in cash; provided that, for
(x) any liabilities of any Loan Party or any of its Subsidiaries that are
agreement that releases the Loan Party or such Subsidiary from further liability
and (y) any securities, notes or other obligations received by a Loan Party or
any such Subsidiary from such transferee that are contemporaneously, subject to
ordinary settlement periods, converted by a Loan Party or such Subsidiary into
cash, to the extent of the cash received in that conversion; provided, further,
that the Net Cash Proceeds of such Disposition shall be applied pursuant to
Section 2.05(b)(i); and
the Lead Borrower, at the sole expense of the Borrowers, in order to effect the
foregoing
7.06 Restricted Payments
(a) each Subsidiary may make Restricted Payments to any Borrower or any
109
of such Person;
otherwise acquire its Equity Interests with the net cash proceeds received from
the substantially concurrent issue of new Qualified Equity Interests which are
Not Otherwise Applied;
(d) any Borrower may make Restricted Payments to Holdings to enable Holdings to
(g) any Borrower may declare and pay cash dividends to Holdings in an amount
existence; and
pro forma effect
110
to any such repurchase, no Event of Default shall have occurred and be
2.25 : 1.00 calculated as though such repurchase had been consummated as of the
Excess Availability of at least $25,000,000.
thereof.
7.08 Transactions with Affiliates
agreements disclosed to the Administrative Agent on or prior to the Restatement
Date and (ix) the incurrence of intercompany Indebtedness permitted by
Section 7.02.
111
7.09 Use of Proceeds
7.10 Financial Covenants
Commencing with the Measurement Period ending December 31, 2012:
the end of any Measurement Period to be greater than 2.75 : 1.00:
1.50 : 1.00:
7.12 Accounting Changes
112
ARTICLE VIII.
8.01 Events of Default
hereunder or under any other Loan Document,; or
Amount; or
113
proceeding; or
in effect; or
any reason shall cease to be
114
“Senior Debt” (or any comparable term) or “Senior Secured Financing” (or any
comparable term) under and as defined in the documentation relating to any
Permitted Subordinated Debt or (ii) the subordination provisions set forth in
the documentation relating to any Permitted Subordinated Debt shall, in whole or
enforceable against the holders of any such Permitted Subordinated Debt, if
applicable; or
pursuant to Section 4.01 of the Original Credit Agreement or Section 6.12 shall
valid and perfected first priority Lien (subject to Liens permitted by
Section 7.01) on a material portion of the Collateral purported to be covered
thereby; or
Documents;
Documents.
115
8.03 Application of Funds
them;
116
ARTICLE IX.
ADMINISTRATIVE AGENT
9.01 Appointment and Authority
other
117
the Lenders.
9.03 Exculpatory Provisions
Administrative Agent.
118
9.05 Delegation of Duties
Administrative Agent.
appointed) and (b) all payments,
119
hereunder or thereunder.
Documentation Agent, the Bookrunners, or Arrangers listed on the cover page
120
proceeding or otherwise.
proceeding; and
Administrative
121
hereunder; and
Section 9.10.
be.
ARTICLE X.
CONTINUING GUARANTY
indemnities, damages, costs,
122
expenses or otherwise, of each Borrower and of each other Guarantor to the
binding upon the Domestic Loan Parties, and conclusive for the purpose of
otherwise constitute a defense to the obligations of any Domestic Loan Party
under this Guaranty, and each Domestic Loan Party hereby irrevocably waives any
of the foregoing.
omission of any Secured Party) of the liability of any Borrower or any other
obligations exceed or are more burdensome than those of a Borrower or other
Domestic Loan Party’s liability hereunder; (d) any right to proceed against any
123
a party.
Guaranty.
all obligations and indebtedness of any Borrower or any other Loan Party owing
including but not limited to any obligation of any Borrower to such Domestic
124
10.09 Condition of Borrowers Each Domestic Loan Party acknowledges and agrees
from any Borrower and any other guarantor such information concerning the
financial condition, business and operations of such Borrower and any such other
relating to the business, operations or financial condition of such Borrower or
the Restatement Date, as of the Restatement Date, and (B) with respect to any
other Domestic Loan Party, as of the date such Domestic Loan Party becomes a
Domestic Loan Party hereunder.
125
the Loan Parties and in consideration of the undertakings of the other
Guarantors which are Domestic Loan Parties to accept joint and several liability
for the Obligations.
ARTICLE XI.
MISCELLANEOUS
126
hereunder;
Revolving Lenders;
Lenders;
127
waiver or consent hereunder, (and any amendment, waiver or consent which by its
affected Lenders shall require the consent of such Defaulting Lender. In the
event of an increase in the Revolving Credit Facility in accordance with the
provisions of Section 2.15 or an increase in the Term Facility in accordance
with the provisions of Section 2.16, the Administrative Agent shall be
permitted, on behalf of all Lenders (and is hereby authorized by all such
Facility, as applicable, on the terms set forth in Section 2.15 or Section 2.16.
Notwithstanding the foregoing,
Replacement Term Loans (as defined below) to
128
(“Replacement Term Loans”); provided that the aggregate principal amount of such
respect to such Refinanced Term Loans;
with this Agreement, amended and waived with the consent of the Administrative
to be consistent with this Agreement and the other Loan Documents; and
Schedule 11.02; and
normal business hours for the recipient, shall be deemed to
129
actual damages).
130
vested exclusively in, and all actions and
131
the Required Lenders.
132
no longer operate or occupy the property.
use
133
of the proceeds thereof, even if advised of the possibility thereof. No
jurisdiction.
11.05 Payments Set Aside
11.06 Successors and Assigns
Lender (other than a Defaulting Lender, subject to Section 2.18(b)) and no
134
this Agreement.
135
is (x) from a Term Loan Lender to a Lender, an Affiliate of a Lender or an
Approved Fund or (y) from a Revolving Credit Lender to a Revolving Credit
Lender, an Affiliate of a Revolving Credit Lender or an Approved Fund with
respect to a Revolving Credit Lender; provided that the Lead Borrower shall be
an Approved Fund;
Revolving Credit Facility.
Questionnaire.
cancelled immediately thereafter.
136
Subsidiaries. No such assignment shall be made to a natural person or to any
writing to the Agent as such.
137
available for inspection by the Borrowers and any Lender (solely with respect to
obligations under this Agreement and (iv) the consent of the Lead Borrower shall
law and United States Treasury regulations) on
138
which it records the name and address of the proposed Participant and the
principal amounts (and stated interest) of each such proposed Participant’s
interest in the Loans or other Obligations under this Agreement (the
and as having “ownership of an interest” (as such term is defined in the
applicable Treasury regulations) for all purposes of this Agreement
Lender.
(ii) upon 30 days’ notice to the Lead Borrower, resign as Swing Line Lender. In
139
relating to the Borrowers and their obligations, (g) with the consent of the
Lead Borrower or (h) to the extent such Information (i) becomes publicly
the Borrowers.
140
competitor, customer or supplier of a Loan Party.
Affiliates may have. Each Lender and the L/C Issuer agrees to notify the Lead
11.09 Interest Rate Limitation
hereunder.
141
11.10 Canadian Interest Act
11.13 Severability
142
11.14 Replacement of Lenders
thereafter; and
cease to apply.
NEW
143
ANY JURISDICTION.
SECTION.
144
transaction contemplated hereby.
11.19 USA PATRIOT Act
145
11.20 Judgment Currency.
applicable law).
11.21 Amended and Restated Agreement.
(a) This Agreement, effective as of the Restatement Date, is an amendment and
restatement of the Original Credit Agreement, it being acknowledged and agreed
that as of the Restatement Effective Date all obligations outstanding under or
in connection with the Original Credit Agreement and any of the other Loan
intended to constitute a novation of the Original Credit Agreement or the
ending prior to the Restatement Effective Date, the Original Credit Agreement
and the other Loan Documents shall govern the respective rights and obligations
ending on or after the Restatement Effective Date, the rights and obligations of
From and after the Restatement Date, any reference to the Original Credit
146
inconsistency between such provisions and those of the Original Credit
Agreement.
(b) Without limiting the generality of Section 11.21(a), the parties agree that:
(i) all Existing Obligations outstanding as at the Restatement Date shall, as of
the Fourth Amended and Restated Effective Date, be deemed to be obligations
outstanding hereunder and subject to the terms of this Agreement, and
(ii) each of the other Loan Documents (other than the Original Credit Agreement)
force and effect, unamended, except that (A) any references therein to the
Original Credit Agreement shall be deemed to refer to this Agreement, and
(B) any security granted or guarantee given pursuant to or in connection with
the Original Credit Agreement and the other Loan Documents (collectively, the
“Existing Security”) shall continue to secure or guarantee, as applicable, the
obligations of the Borrowers arising pursuant to or in connection with this
Agreement (including all such obligations arising initially pursuant to or in
connection with the Original Credit Agreement and the other Loan Documents).
147
BORROWER:
GSI GROUP CORPORATION
By: Name: Robert Buckley Title: Chief Financial Officer
HOLDINGS: GSI GROUP INC. By: Name: Robert Buckley Title: Chief Financial
Officer
GUARANTORS:
MICROE SYSTEMS CORP.
MES INTERNATIONAL INC.
By: Name: Robert Buckley Title: Secretary
QUANTRONIX CORPORATION
SYNRAD, INC.
By: Name: Robert Buckley Title: Assistant Secretary
GSI GROUP LIMITED By: Name: Robert Buckley Title: Director
Signatures to Amended and Restated Credit Agreement
Administrative Agent
By: Name:
Angela Larkin
Title:
Assistant Vice President
By: Name:
John F. Lynch
Title:
SVP
SILICON VALLEY BANK By: Name:
Michael Shuhy
Title:
Vice President
HSBC BANK USA N.A. By: Name:
Manuel Burgueno
Title:
Vice President
TD BANK, N.A. By: Name:
Amy LeBlanc Hackett
Title:
SVP
JPMORGAN CHASE BANK, N.A. By: Name: Kenneth Coons Title: Vice President
BROWN BROTHERS HARRIMAN & CO. By: Name: Jed Hall Title: Managing Director
SCHEDULE 1.01
EXISTING LETTERS OF CREDIT
None.
SCHEDULE 2.01
COMMITMENTS AND APPLICABLE PERCENTAGES
Lender
Commitment
Applicable
Percentage
Commitment
Applicable
Percentage
$ 14,000,000.00 28.00% $ 21,000,000.00 28.00%
Silicon Valley Bank
$ 12,000,000.00 24.00% $ 18,000,000.00 24.00%
$ 8,000,000.00 16.00% $ 12,000,000.00 16.00%
$ 7,000,000.00 14.00% $ 10,500,000.00 14.00%
$ 2,000,000.00 4.00% $ 3,000,000.00 4.00%
Total
$ 50,000,000.00 100.00% $ 75,000,000 100.00%
SCHEDULE 5.05
None.
Existing Liens
•
Pledge of GSI Group Europe GmbH’s account #83000031 with Bayerische Hypo-und
Vereinsbank AG Bank as a security for the line of credit for GSI Group Europe
GmbH for EUR 500,000 pursuant to terms set forth in a letter from the Bank to
GSI Group Europe GmbH dated March 4, 2009. (See Schedule 7.02, third one down)
Owned Real Property
Owner
Address
Book Value
Estimated Fair Value
2419 Lake Orange Drive
Orlando, Florida 32837
$5.7 million $6.6 million Photo Research Inc.
9731 Topanga Canyon Place
Chatsworth, California
91311-4135
$2.1 million $1.9 million Quantronix Corporation
41 Research Way,
East Setauket, New York
11733
$4.8 million $5.0 million Synrad, Inc.
4600 Campus Place
Mukilteo, WA 98275
$6.8 million $9.0 million
Lessee
Lessor
Address
Expiration
Annual Rent
GSI Group Corporation
125 Middlesex
Turnpike, Bedford,
Middlesex County,
MA 01803 May 31, 2019 $1,516,433 GSI Group Corporation
Public Road, LLC
510 Compton St., Suite 101, Broomfield, CO 80020
1370 Miners Drive,
Lafayette, Boulder
County, CO 80026 May 31, 2013 $21,552.72 GSI Group Corporation, Taiwan
Branch Chu Cherug Construction Co., Ltd. 8F, No. 3 Lane 91
Dongmei Road,
Hsinchu 30070
Taiwan December 14, 2013 NT$ 2,361,480 GSI Group Corporation, Taiwan
Branch Chu Cherug Construction Co., Ltd. 4F, No80, Baoqing
Road, Taoyuan
County, Taoyuan,
330, Taiwan November 21, 2014 NT$ 360,000 GSI Group Corporation, Korea
Branch
Pyung Ho Kim
YeonWoo Bldg.
2F, 1200 GaePo 4-
Dong, Gangnam-Gu,
Seoul 135-963,
Korea April 13, 2013 KRW 58,800,000 Cambridge Technology, Inc. Duffy
Hartwell Avenue,
Lexington,
Middlesex County,
MA 02421 December 31, 2016 $546,000 Continuum Electro-Optics, Inc.
Harvest Properties, Inc., 6475 Christie Avenue, Suite 550, Emeryville, CA 94608
3150 Central
Expressway Santa
Clara, Santa Clara
County, CA 95051 December 31, 2013 $293,000 GSI Group Limited
ENSCO 695 Limited
Bradfield House
Rising Lane Lapworth
Solihull
West Midlands
B94 6HP
Cosford Lane
Swift Valley
Rugby
Warwickshire
CV21 1QN
Lessee
Lessor
Address
Expiration
Annual Rent
GSI Group Limited
Lisieux Way
Taunton
Somerset
TA1 2JZ
Part of Building 1
Moorfields
Lisieux Way
Taunton
Somerset
May 31, 2017 GBP 67,957.50 GSI Group Limited Scottsgrove Holdings 29
Holton Road,
Holton Heath,
Poole, UK June 24, 2078 GBP 59,000 NDS Surgical Imaging, LLC Mission
West Properties 5750 Hellyer
Avenue, San Jose,
CA 95138 August 29, 2014 $852,000
Lessee
Lessor
Address
Expiration
Annual Rent
Control Laser Corporation Excel Technology, Inc.
2419 Lake Orange
Drive, Orlando,
Florida 32837
October 29, 2013 $500,000
Existing Investments
Owner
Issuer
Percentage Owned
GSI Group Inc.
SCHEDULE 5.09
Environmental Matters
None.
SCHEDULE 5.13
Parent
Subsidiary
Percentage
Owned
GSI Group Inc.
GSI Group Inc.
GSI Group Inc.
GSI Group Inc.
GSI Group Inc.
GSI Group Inc.
NDS Surgical Imaging, LLC 100%
GSI Group Corporation
GSI Group Corporation
GSI Group Corporation
GSI Group Corporation
NDSSI IP Holdings, LLC 100%
NDS Imaging Holdings, LLC 100%
NDS Holdings, BV 100%
MicroE Systems Corp.
GSI Group Europe GmbH 100%
Quantronix Corporation 100%
GSI Group Limited
GSI Group Limited
GSI Group Limited
NDS Surgical Imaging, KK 100%
Owner
Issuer
Percentage Owned
Loan Party
Jurisdiction of Incorporation
GSI Group Inc.
New Brunswick,
Canada
125 Middlesex Turnpike
Bedford, MA 01730
98-0110412 GSI Group Corporation Michigan
125 Middlesex Turnpike
Bedford, MA 01730
38-1859358
Korea
125 Middlesex Turnpike
Bedford, MA 01730
1101810020764
Taiwan
125 Middlesex Turnpike
Bedford, MA 01730 USA
28426013 NDS Surgical Imaging, LLC Delaware
5750 Hellyer Avenue,
98-0110412 NDSSI IP Holdings, LLC Delaware
5750 Hellyer Avenue,
98-0110412 NDS Imaging Holdings, LLC Delaware
5750 Hellyer Avenue,
98-0110412 Cambridge Technology, Inc. Massachusetts
25 Hartwell Avenue,
Lexington, MA 02421
04-2703882 Continuum Electro-Optics, Inc. Delaware
3150 Central Expressway
11-3653902 Excel Technology, Inc. Delaware
41 Research Way,
11-2780242 Quantronix Corporation Delaware
3150 Central Expressway
11-2143586 Photo Research, Inc. Delaware
9731 Topanga Canyon Place,
Chatsworth, CA 91311-4135
95-4548630 Synrad, Inc. Washington
4600 Campus Place,
Mukilteo, WA 98275
58-2408307 MicroE Systems Corp. Delaware
125 Middlesex Turnpike
Bedford, MA 01730
04-3248088
MES International Inc. Delaware
125 Middlesex Turnpike
Bedford, MA 01730
04-3551964 GSI Group Limited United Kingdom
Cosford Lane
Swift Valley, Rugby
Warwickshire CV21 1QN
1041317
SCHEDULE 5.17
IP Rights
Registered Copyrights
Grantor
Country
Title
Filing
Date
Registration
Date
Excel Technology, Inc. United States PR-880
Version 5. 1 c. TX0007189456 2005 8/9/2010 Excel Technology, Inc..
United States SpectraWin
Version
2.1.5.1. TX0007189483 2006 8/9/2010 NDS Surgical Imaging, LLC United
States DIMPL Class
Library
computer
program TX0005750228 2003 4/19/2003
Registered Trademarks
Grantor
Country
Trademark
Application/
Registration No.
Filing Date
Registration Date
GSI Group Corporation United States Chiptrim 3,007,832 8/8/2003
10/18/2005 GSI Group Corporation United States GSI (Word Only - Black)
78/731631 10/12/2005 Not Applicable GSI Group Corporation United States
GSI (Word Only - Blue) 78/731636 10/12/2005 Not Applicable GSI Group
Corporation United States GSI Lumonics (Block) 2,958,968 5/24/2002
6/7/2005 GSI Group Corporation United States GSI Lumonics - Stylized
2,921,938 5/24/2002 2/1/2005 GSI Group Corporation United States
Lightwriter 1,649,349 6/4/1990 7/2/1991 GSI Group Corporation United
States Lightwriter 3,017,266 9/3/2003 11/22/2005 GSI Group
Corporation United States Sigmaclean 2,259,707 10/16/1995
7/6/1999 GSI Group Corporation United States
GSI & Design
(oblong box – black & white)
85/526876 1/27/2012 Not Applicable GSI Group Corporation United
States
GSI & Design
(oblong box - color)
Design Plus words, letters
85/526921 1/27/2012 Not Applicable GSI Group Corporation United
States
GSI Group
Name & Design
85/527059 1/27/2012 Not Applicable
Grantor
Country
Trademark
Application/
Registration No.
Filing Date
Registration Date
GSI Group Corporation United States
GSI Group & Design
85/527091 1/27/2012 Not Applicable GSI Group Inc. United States
Softmark 1,375,595 12/20/1984 12/17/1985 GSI Group Corporation
United States Super Softmark 1,717,813 1/9/1992 9/22/1992 GSI Group
Corporation United States Versitrim 3,187,870 8/8/2003 12/19/2006
GSI Group Corporation United States Wafermark 1,200,245 5/9/1980
7/6/1982 GSI Group Corporation United States GSI Group & Design
85/571411 3/16/2012 Not Applicable GSI Group Corporation United States
GSI 85/574257 3/20/2012 Not Applicable GSI Group Corporation
United States GSI 85/571331 3/16/2012 Not Applicable Cambridge
Technology, Inc. United States Micromax 2,457,724 4/29/1998
6/5/2001 Continuum Electro-Optics, Inc. United States Panther 2,565,632
4/16/1999 4/30/2002 Continuum Electro-Optics, Inc. United States
Continuum 1,695,210 11/17/1989 6/16/1992 MicroE Systems Corp United
States MicroE Systems 3,125,680 6/7/2004 8/8/2006 MicroE Systems
Corp United States MicroE Systems 2,886,781 10/20/1999 9/21/2004
Excel Technology, Inc. United States Pritchard 0945,229 6/14/1971
10/17/1972 Excel Technology, Inc. United States Spectra 0987,821
10/6/1972 7/9/1974 Excel Technology, Inc. United States Light Mate
1,188,492 9/19/1980 2/2/1982 Excel Technology, Inc. United States
Photo Research 1,253,696 7/9/1982 10/11/1983 Excel Technology, Inc.
United States PR 1,262,271 7/9/1982 12/27/1983 Excel Technology,
Inc. United States Spectrascan 1,262,871 7/8/1982 1/3/1984 Excel
Technology, Inc. United States Spotmeter 1,298,453 7/9/1982
10/2/1984 Excel Technology, Inc. United States The Light Measurement
People 1,475,474 5/26/1987 2/2/1988 Excel Technology, Inc. United
States Spectrawin 2,219,258 4/15/1996 1/19/1999 Excel Technology,
Inc. United States Videowin 2,247,912 8/15/1995 5/25/1999 Excel
Technology, Inc. United States Photowin 2,747,719 3/16/2000
8/5/2003 Excel Technology, Inc. United States SpectraAduo 3,223,033
6/8/2006 3/27/2007 Excel Technology, Inc. United States CINEBRATE
85/750358 10/10/2012 Not Applicable Quantronix Corporation United
States Laser Commander 2,355,214 7/22/1999 6/6/2000 Quantronix
Corporation United States Quantronix 1,097,990 3/23/1977 8/1/1978
Quantronix Corporation United States Quantronix 0907,880 1/23/1969
2/16/1971
Grantor
Country
Trademark
Application/
Registration No.
Filing Date
Registration Date
Quantronix Corporation United States KATANA 77917319 1/21/2010
Not Applicable Synrad, Inc. United States Synrad 1,890,922 3/31/1994
4/25/1995 Synrad, Inc. United States Power Wizard 1,848,154
4/30/1993 8/2/1994 Synrad, Inc. United States Fenix 2,396,260
4/28/1998 10/17/2000 Synrad, Inc. United States Firestar 2,497,086
12/29/1999 10/9/2001 Synrad, Inc. United States Duo-Lase
1,620,992 1/2/1990 11/6/1990 NDS Surgical Imaging, LLC United States
RADIANCE 3134178 11/18/2004 8/22/2006 NDS Surgical Imaging, LLC
United States DOME 1746867 10/31/1991 1/19/1993 NDS Surgical
Imaging, LLC United States DOME 2142543 2/25/1997 3/10/1998 NDS
Surgical Imaging, LLC United States VitalScreen 2637623 8/23/2000
10/15/2002 NDS Surgical Imaging, LLC United States INVITIUM 2767682
10/22/2001 9/23/2003 NDS Surgical Imaging, LLC United States ENDOVUE
3742246 6/22/2009 1/26/2010 NDS Surgical Imaging, LLC United States
ZEROWIRE 3986502 11/16/2009 6/28/2011 NDS Surgical Imaging, LLC
United States Design Only (DOME) 4143992 3/11/2011 5/15/2012 NDS
Surgical Imaging, LLC United States NDS SURGICAL IMAGING 3648029
1/10/2007 6/30/2009 NDSSI IP Holdings, LLC United States ZeroWire
3533098 7/25/2007 11/18/2008 NDS Imaging Holdings, LLC United States
MediStream 77742375 3/21/2006 Not Applicable
Grantor
Country
Title
Application/
Publication,
Patent No.
Filing Date
Issue Date
GSI Group Inc. United States A Method For Laser Drilling. 6,657,159
6/6/2002 12/2/2003 GSI Group Inc. United States A Method And Apparatus
For Shaping A Laser-Beam Intensity Profile By Dithering. 6,341,029
4/27/1999 1/22/2002 GSI Group Inc. United States A Method And Apparatus
To Shape A Laser Beam Intensity Profile By Dithering An Anamorphic Spot.
6,496,292 10/22/2001 12/17/2002 GSI Group Inc. United States A
System And Method For Material Processing Using Multiple Laser Beams.
6,462,306 4/26/2000 10/8/2002 GSI Group Inc. United States Automated
Trim Processing System. 6,875,950 3/22/2002 4/5/2005 GSI Group Inc.
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RECEIVING WIRELESS SIGNALS WITH MULTIPLE DIVERSITY SETTINGS 7,965,787
7/10/2008 6/21/2011 NDS Imaging Holdings, LLC United States EMPIRICAL
SCHEDULING OF NETWORK PACKETS 7,529,247 9/17/2003 5/5/2009 NDS Imaging
Holdings, LLC United States EMPIRICAL SCHEDULING OF NETWORK PACKETS USING
A PLURALITY OF TEST PACKETS 7,876,692 12/17/2008 1/25/2011 NDS Imaging
Holdings, LLC United States EMPIRICAL SCHEDULING OF NETWORK PACKETS
7,911,963 4/29/2009 3/22/2011 NDS Imaging Holdings, LLC United States
7,468,948 10/28/2004 12/23/2008 NDS Imaging Holdings, LLC United
States ENDPOINT PACKET SCHEDULING SYSTEM 7,339,923 10/31/2003
3/4/2008 NDS Imaging Holdings, LLC United States LOCAL AREA NETWORK
CONTENTION AVOIDANCE 7,508,813 11/25/2003 3/24/2009
Grantor
Country
Title
Application/
Publication,
Patent No.
Filing Date
Issue Date
NDS Imaging Holdings, LLC United States NETWORK CONNECTION DEVICE
7,453,885 10/13/2004 11/18/2008 NDS Surgical Imaging, LLC United States
METHOD AND SYSTEM FOR CORRECTION, MEASUREMENT AND DISPLAY OF IMAGES
12/883,004
2011-0063341
9/15/2010 Not Applicable NDS Surgical Imaging, LLC United States
ELECTRONIC COLOR AND LUMINANCE MODIFICATION 13/051,962
2012-0032971
3/18/2011 Not Applicable NDS Surgical Imaging, LLC United States
MONOCULAR STEREOSCOPIC ENDOSCOPE 11/644,033 12/22/2006 Not Applicable
NDS Surgical Imaging, LLC United States WIDE-VIEW DISPLAY SYSTEM FOR
MEDICAL SURGICAL APPLICATIONS 11/715,711 3/7/2007 Not Applicable NDS
Surgical Imaging, LLC United States SYSTEM AND METHOD FOR ENHANCING
LUMINANCE UNIFORMITY IN A LIQUID CRYSTAL DISPLAY DEVICE 11/809,033
5/30/2007 Not Applicable NDS Surgical Imaging, LLC United States SYSTEM
AND METHOD OF DOUBLING THE DRIVING FREQUENCY TO AN LCD PANEL WITH A LIVE VIDEO
SOURCE 12/006,324 12/31/2007 Not Applicable NDS Surgical Imaging, LLC
United States SYSTEM AND METHOD OF TESTING A RESISTIVE TOUCHSCREEN SENSOR
TO DETERMINE PROPER COVER LAYER CONSTRUCTION 12/009,006 1/15/2008 Not
Applicable
Licenses
Licensor
Licensee
GSI Group Corporation E.O. Technics Co., Ltd.
GSI/US - 6,501,061; 6,462,306; 6,657,159
GSI Group Corporation Virtek Vision International Inc. GSI/US - 6,000,801
GSI Group Corporation Zygo Corporation GSI/SG - 70348 GSI Group
Corporation Prima U.S., Laserdyne Systems Division, Laserdyne Prima Inc.
GSI/US - 5,339,103; 5,340,962; 5,521,374; 5,850,068 Quantronix Corporation
Control Laser Corporation Quantronix/US - 7,408,971
Licensor
Licensee
Trademark Number
NDS Surgical Imaging, LLC InoNet Computer GmbH NDS Surgical Imaging,
LLC/US - 3134178
SCHEDULE 6.12
Guarantors
Quantronix Corporation
Synrad, Inc.
MicroE Systems Corp.
MES International Inc.
GSI Group Limited
NDSSI IP Holdings, LLC
NDS Imaging Holdings, LLC
SCHEDULE 7.02
Existing Indebtedness
•
November 30, 2012: GBP 12,500,000).
•
November 30, 2012: EUR: 2,847,364).
•
Line of credit for GSI Group Europe GmbH (“GSI Group Europe GmbH”) for EUR
forth in a letter from the Bank to GSI Group Europe GmbH dated March 4, 2009
(“GSI Group Europe GmbH Line of Credit”). GSI Group Europe GmbH has drawn upon
EUR 0 of this line of credit.
•
•
•
amount outstanding as of November 30, 2012: $831,000).
SCHEDULE 7.05
Certain Properties
None.
SCHEDULE 11.02
ADMINISTRATIVE AGENT’S OFFICE;
CERTAIN ADDRESSES FOR NOTICES
BORROWERS or GUARANTORS:
GSI Group Inc.
125 Middlesex Turnpike
Bedford, MA 01730
GSI Group Inc.
125 Middlesex Turnpike
Bedford, MA 01730
Attention: Timothy Spinella
Website Address: www.gsig.com
ADMINISTRATIVE AGENT:
Administrative Agent’s Office
Attention: Robert Garvey
Ref: GSI Group
ABA# 026009593
Agency Management
Chicago, IL 60603
Attention: Angela Larkin
1 Fleet Way
Scranton, PA 18507
Telephone: 570.330.4212
Telecopier: 570.330.4186
SWING LINE LENDER:
Attention: Robert Garvey
Ref: GSI Group
ABA# 026009593
EXHIBIT A
Date: ,
Ladies and Gentlemen:
as of December 27, 2012 (as amended, restated, extended, supplemented or
defined therein being used herein as therein defined), among GSI Group
Corporation, a Michigan corporation (the “Lead Borrower”), NDS SURGICAL IMAGING,
LLC, a [Delaware] limited liability company (together with the Lead Borrower and
each other Person to join the Agreement as a Borrower, collectively the
existing under the laws of the Province of New Brunswick, Canada, the other
Line Lender, Silicon Valley Bank as Syndication Agent and HSBC Bank USA, N.A. as
Documentation Agent.
continuation of Loans
1. On
3. Comprised of
.
A-1
EXHIBIT B
Date: ,
Ladies and Gentlemen:
Documentation Agent.
1. On
B-1
EXHIBIT C-1
_______________________
severally promise to pay to or
Credit Loan from time to time made by the Lender to the Borrowers under that
certain Amended and Restated Credit Agreement, dated as of December 27, 2012 (as
therein defined), among the Borrowers, GSI Group Inc., a company continued and
Documentation Agent.
respect thereto.
NDS SURGICAL IMAGING, LLC By: Name: Title:
Date
Type of
Loan Made
Amount of
Loan Made
End of
Interest
Period
Amount of
Principal or
Interest
Paid This
Date
Outstanding
Principal
Balance
This Date
Notation
Made By
EXHIBIT C-2
FORM OF TERM NOTE
___________________
Lender to the Borrowers under that certain Amended and Restated Credit
Agreement, dated as of December 27, 2012 (as amended, restated, extended,
among the Borrowers, GSI Group Inc., the other Guarantors from time to time
N.A., as Administrative Agent, L/C Issuer and Swing Line Lender, Silicon Valley
Bank as Syndication Agent and HSBC Bank USA, N.A. as Documentation Agent.
thereto.
Form of Term Note
Form of Term Note
Date
Type of
Loan Made
Amount of
Loan Made
End of
Interest
Period
Amount of
Principal or
Interest
Paid This
Date
Outstanding
Principal
Balance
This Date
Notation
Made By
Form of Term Note
EXHIBIT D
FORM OF COMPLIANCE CERTIFICATE
Ladies and Gentlemen:
LLC, Delaware limited liability company (together with the Lead Borrower and
and Swing Line Lender, Silicon Valley Bank as Syndication Agent and HSBC Bank
USA, N.A. as Documentation Agent.
D-1
Form of Compliance Certificate
—or—
dates.
Certificate.
D-2
Form of Compliance Certificate
______________, ______.
D-3
Form of Compliance Certificate
SCHEDULE 1
to the Compliance Certificate
I. Section 7.10(b) – Consolidated Leverage Ratio.
A.
(“Subject Period”) (from Schedule 2): $ __________
C.
Consolidated Leverage Ratio (Line I.A ÷ Line I.B): _____ to 1.00
Maximum permitted: 2.75 to 1.00
D-4
Form of Compliance Certificate
II. Section 7.10(c) – Consolidated Fixed Charge Coverage Ratio.
A.
$ __________ 1. Consolidated EBITDA for Subject Period (Line I.B
above): $ __________ 2. Aggregate amount of all cash Capital
Expenditures for Subject Period: $ __________ 3. Aggregate amount of
Federal, state, local and foreign income taxes paid in cash for Subject Period:
$ __________ 4. Adjusted Consolidated EBITDA (Lines II.A1 - 2 - 3):
$ __________ B. Consolidated Fixed Charges for Subject Period: 1.
__________ 2. Aggregate scheduled amortization payments under
Section 2.07(a) of the Agreement (regardless of whether optional prepayments
under Section 2.05(a) of the Agreement were applied to such installments) for
Subject Period, for so long as any amounts are outstanding under the Term Loan
Facility: $ __________ 3. Aggregate principal amount of all other
otherwise expressly permitted under Section 7.02 of the Agreement: $
__________ 4. Aggregate amount of all Restricted Payments made pursuant
to Section 7.06(d) or 7.06(e) of the Agreement for Subject Period: $
__________ 5. Consolidated Fixed Charges (Lines II.B1 + 2 + 3 + 4):
C.
Consolidated Fixed Charge Coverage Ratio (Line II.A4 ÷ Line II.B5):
_____ to 1.00
Minimum required:
1.50 to 1.00
D-1
Form of Compliance Certificate
SCHEDULE 2
to the Compliance Certificate
Consolidated EBITDA
Agreement)
Consolidated EBITDA
Quarter
Ended Quarter
Ended Quarter
Ended Quarter
Ended Twelve
Months
Ended Consolidated Net Income
+ Consolidated Interest Charges
+ income taxes
+ depreciation expense
+ amortization expense
= Consolidated EBITDA
1 not to exceed $10,000,000 in the aggregate during any Measurement Period from
the Restatement Date through June 30, 2013 and not to exceed $5,000,000 in the
2 not to exceed $7,500,000 in the aggregate during any Measurement Period
D-2
Form of Compliance Certificate
EXHIBIT E-1
ASSIGNMENT AND ASSUMPTION
1.
second bracketed language.
second bracketed language.
Assignees.
2.
3.
Lead Borrower:
GSI Group Corporation, a Michigan corporation
5.
December 27, 2012, among the Lead Borrower, the other Borrowers from time to
time party thereto, GSI Group Inc., the other Guarantors from time to time party
thereto, the Lenders from time to time party thereto Bank of America, N.A., as
Administrative Agent, L/C Issuer and Swing Line Lender, Silicon Valley Bank as
Syndication Agent and HSBC Bank USA, N.A. as Documentation Agent
6.
Facility
Assigned10 Aggregate
Amount of
Commitment/
Loans
for all Lenders11 Amount of
Commitment/
Loans
Assigned Percentage
Assigned of
Commitment/
Loans12 CUSIP
Number
$ $
%
$ $
%
$ $
%
[7.
Trade Date:
___________]13
ASSIGNOR
By: Title:
ASSIGNEE
By: Title:
Administrative Agent
By: Title:
By: Title:
ASSIGNMENT AND ASSUMPTION
Lender.
the Effective Date.
EXHIBIT E-2
FORM OF ADMINISTRATIVE QUESTIONNAIRE
See attached.
.
Form of Administrative Questionnaire
EXHIBIT F-1
FORM OF GUARANTY SUPPLEMENT
by [___________], a [____________________] [corporation] (the “New Guarantor”),
A. GSI Group Corporation, a Michigan corporation (the “Lead Borrower”), NDS
SURGICAL IMAGING, LLC, a Delaware limited liability company (together with the
Lead Borrower and each other Person to join the Agreement as a Borrower,
(“Holdings”), the other guarantors party thereto (along with Holdings each, a
“Guarantor”, and collectively, the “Guarantors”), the lenders party thereto (the
“Lenders”), the Swing Line Lender and L/C Issuer party thereto, Bank of America,
with its successors in such capacity, the “Administrative Agent”), Silicon
Valley Bank as Syndication Agent and HSBC Bank USA, N.A. as Documentation Agent,
December 27, 2012 (as modified, supplemented and in effect from time to time,
for extensions of credit to be made by the Lenders to the Borrowers. Capitalized
terms used but not defined herein are used as defined in the Credit Agreement.
other Loan Documents.
same force and
F-1
Form of Guaranty Supplement
effect as if it had been a signatory to such Loan Documents on the execution
dates of the Credit Agreement and other Loan Documents and (ii) as of the date
hereof, makes each of the representations and warranties applicable to the
Guarantors contained in the Credit Agreement and other Loan Documents.
force and effect.
THEREOF.
F-2
Form of Guaranty Supplement
[__________________________________]. By: Name: Title:
F-3
Form of Guaranty Supplement
APPENDIX A
EXHIBIT F-2
FORM OF HOLDINGS GUARANTY
[Reserved].
EXHIBIT G-1
FORM OF SECURITY AGREEMENT
[Reserved].
EXHIBIT G-2
[Reserved].
EXHIBIT G-3
[Reserved].
EXHIBIT H
FORM OF MORTGAGE
[Reserved].
EXHIBIT I
[RESERVED]
I-2
EXHIBIT J
LLC, a Delaware limited liability company (together with the Lead Borrower and
Documentation Agent. Pursuant to the provisions of Section 3.01(e) of the Credit
thereunder, (iii) it is not a 10-percent shareholder of any Borrower or any
thereunder.
16 If the undersigned is an intermediary, a foreign partnership or other
•
•
•
•
•
true and correct.
Dated: ____________________
EXHIBIT K
DECEMBER 27, 2012
as of the date hereof (the “Agreement;” the terms defined therein being used
herein as therein defined), among GSI Group Corporation, a Michigan corporation
(the “Lead Borrower”), NDS SURGICAL IMAGING, LLC, a [Delaware] limited liability
company (together with the Lead Borrower and each other Person to join the
Pursuant to Sections 4.01(a)(viii) of the Agreement, the undersigned, hereby
1. the representations and warranties of each Borrower and each other Loan
3. since December 31, 2011, there has been no event or circumstance that has
K-1
first written above.
K-2
EXHIBIT L
FORM OF SOLVENCY CERTIFICATE
DECEMBER 27, 2012
defined), among GSI Group Corporation, a Michigan corporation (the “Lead
Borrower”), NDS SURGICAL IMAGING, LLC, a Delaware limited liability company
(together with the Lead Borrower and each other Person to join the Agreement as
Pursuant to Section 4.01(a)(ix) of the Agreement, the undersigned, hereby
business.
L-1
Form of Solvency Certificate
written above.
BORROWERS:
GSI GROUP CORPORATION
HOLDINGS:
GSI GROUP INC.
GUARANTORS:
GSI GROUP LIMITED
QUANTRONIX CORPORATION
SYNRAD, INC.
MICROE SYSTEMS CORP.
MES INTERNATIONAL INC.
L-2
Form of Solvency Certificate
EXHIBIT M
[RESERVED]
EXHIBIT N
_____________ __, 20__
and that:
5. attached hereto as Annex 1 are calculations evidencing that immediately
before and immediately after giving pro forma effect to the Acquisition,
Holdings and its Subsidiaries are in pro forma compliance with all of the
covenants set forth in Section 7.10 of the Agreement for the twelve-month period
ended on [ ]17 (the “Financial Statement Date”), determined on the
though the Acquisition had been consummated as of the first day of the fiscal
period covered thereby;
17 Insert date of most recent financial statements delivered pursuant to
N-1
6. attached hereto as Annex 2 are calculations evidencing that after giving
effect to the Acquisition, Holdings and its Subsidiaries have a Consolidated
Leverage Ratio for the twelve-month period ended on the Financial Statement Date
of ___18 to 1.0, determined on the basis of the financial information most
7. attached hereto as Annex 3 are calculations evidencing that after giving
effect to the Acquisition, as of the Financial Statement Date, Holdings and its
Subsidiaries have Excess Availability of $______________19.
18 Must be less than or equal to 2.25:1.0
19 Must be greater than or equal to $25,000,000.
N-2
first written above.
N-3
ANNEX 1
Consolidated EBITDA
Agreement)
Consolidated EBITDA
Quarter
Ended Quarter
Ended Quarter
Ended Quarter
Ended Twelve
Months
Ended Consolidated Net Income
+ Consolidated Interest Charges
+ income taxes
+ depreciation expense
+ amortization expense
+ restructuring charges from operations and divestitures20
+ restructuring charges , fees and expenses in respect of other transactions21
= Consolidated EBITDA
A.
$ __________
20 not to exceed $10,000,000 in the aggregate during any Measurement Period
from the Restatement Date through June 30, 2013 and not to exceed $5,000,000 in
the aggregate during any Measurement Period thereafter
21 not to exceed $7,500,000 in the aggregate during any Measurement Period
N-4
B.
Statement Date (“Subject Period”) (from above)
$ __________
C.
_____ to 1.00 Maximum permitted: 2.75 to 1.00
N-5
A.
EBITDA for Subject Period (Line I.B above): $ __________ 2.
__________ 3. Aggregate amount of Federal, state, local and foreign
income taxes paid in cash for Subject Period: $ __________ 4.
Adjusted Consolidated EBITDA (Lines II.A1 - 2 - 3): $ __________ B.
Consolidated Fixed Charges for Subject Period: 1. Consolidated Interest
Charges paid in cash for Subject Period: $ __________ 2. Aggregate
Section 7.02 of the Agreement: $ __________ 4. Aggregate amount of
Charges (Lines II.B1 + 2 + 3 + 4): $ __________
C.
_____ to 1.00
Minimum required:
1.50 to 1.00
N-6
ANNEX 2
Consolidated Leverage Ratio.
A.
$ __________
B.
C.
N-7
ANNEX 3
Excess Availability.
A.
Unrestricted cash on the balance sheet of Holdings and its Subsidiaries on the
Financial Statement Date: $ __________
B.
__________
C.
Date: $ __________
D.
$ __________
E.
$ __________
F.
Excess Availability (Line A + Line B – Line C – Line D – Line E): $
__________
N-1
|
Exhibit 10(xviii)
AMENDED AND RESTATED
THIS AMENDED AND RESTATED AGREEMENT (the “Agreement”), dated December 10,
2008, is made by and between The Stanley Works, a Connecticut corporation (the
“Company”), and John F. Lundgren (the “Executive”).
WHEREAS, the Company is currently a party to a Change in Control Severance
Agreement with the Executive dated March 1, 2004 (the “Prior Agreement”);
WHEREAS, the parties wish to amend and restated the Prior Agreement for
purposes of compliance with the requirements of Section 409A;
2. Term of Agreement. The Term of this Agreement commenced on March 1, 2004
and pursuant to an automatic extension continues until December 31, 2010;
provided, however, that commencing on January 1, 2009 and each January 1,
thereafter, the Term shall continue to automatically be extended for one
of employment and,
1
shall pay the Executive’s Annual Base Salary at the rate in effect at the
Company for Disability.
Section 12 of this Agreement, the Executive’s Annual Base Salary to the
constituting Good Reason.
Section 12 of this Agreement, pay to the Executive the Executive’s
constituting Good Reason.
2
6.1 If the Executive incurs a “separation from service” (within the meaning
of Section 409A) following a Change in Control and during the Term, other than
(“Severance Payments”) and Section 6.2, in addition to any payments and benefits
Agreement, the Executive shall be deemed to have incurred a separation from
service following a Change in Control by the Company without Cause or by the
Executive with Good Reason if (i) the Executive’s employment is terminated by
in Control occurs) and such termination was at the request or direction of a
in Control occurs) and the circumstance or event which constitutes Good Reason
Good Reason and such termination or the circumstance or event which constitutes
Control (whether or not a Change in Control occurs). For purposes of Sections 5
and 6 of this Agreement (other than the last sentence of Section 6.2(A)), no
until such termination of employment is also a “separation from service,” as
in cash, equal to three (3) times the sum of the (i) Executive’s Annual Base
benefits shall be
3
during the thirty-six (36) month period following the Executive’s termination of
Company shall promptly reimburse the Executive for the excess, if any, of the
(C) In addition to the retirement benefits, if any, to which the Executive
is entitled under each DB Pension Plan or any successor plan thereto, the
of (i) the actuarial equivalent of the aggregate retirement pension (taking into
equal to the Executive’s compensation (as defined in such DB Pension Plan)
“actuarial equivalent” shall be determined using the same assumptions utilized
with respect to the DB Pension Plan that arises pursuant to Section 3(g)
(“Pension Make-Whole”) of the Employment Agreement shall be determined based on
the projected increase in the Executive’s Historical Average Compensation (as
defined in Exhibit D to the Employment Agreement). The payments provided in this
Section 6.1(C) are in addition to any payment the Executive would otherwise
receive under the applicable DB Plan and are not intended to offset or reduce
any payment under such DB Plan or the Pension Make Whole.
cash, equal to
4
the sum of (i) the amount that would have been contributed thereto by the
Company on the Executive’s behalf during the thirty-six (36) months immediately
maximum permissible contributions thereto during such period, (y) as if the
Executive earned compensation during such period at a rate equal to the
Executive’s compensation (as defined in the DC Pension Plan) during the twelve
(12) months immediately preceding the Date of Termination or, if higher, during
the twelve (12) months immediately prior to the first occurrence of an event or
to the DC Pension Plan made subsequent to a Change in Control and on or prior to
under the terms of the DC Pension Plan. The payments provided in this
Section 6.1(D) are in addition to any payment the Executive would otherwise
receive under the applicable DC Plan and are not intended to offset or reduce
any payment under such DC Plan or the Pension Make Whole.
Company’s post-retirement health care or life insurance plans, as in effect
circumstance constituting Good Reason, had the Executive’s employment terminated
life insurance benefits to the Executive and the Executive’s dependents
(B) of this Section 6.1 terminate.
services suitable to the Executive’s position for the period following the
Executive’s Date of Termination and ending on December 31 of the second calendar
year following such Date of Termination or, if earlier, until the first
acceptance by the Executive of an offer of employment, provided, however, that
in no case shall the Company be required to pay in excess of $50,000 over such
period in providing outplacement services and that all reimbursements hereunder
shall be paid to the Executive within thirty (30) calendar days following the
date on which the Executive submits the invoice but no later than December 31 of
the third calendar year following the year of the Executive’s Date of
Termination.
(i) to the Executive pursuant to the Employment Agreement (including, without
limitation, automobile, financial planning, annual physical and executive whole
life insurance) and (ii) immediately prior
5
to the Date of Termination or, if more favorable to the Executive, immediately
Reason.
Change in Control or the Executive’s termination of employment, whether pursuant
account the phase out, if any, of itemized deductions and personal exemptions
Company’s obligation to make the Gross-Up Payment under this Section 6 shall not
be conditioned upon Executive’s termination of employment.
determining the amount of the Gross-Up Payment, Executive’s estimated actual
calendar year in which the Date of Termination occurs shall be utilized (or if
calculated for purposes of this Section 6.2). Such marginal rate shall be
determined by taking into account (i) the estimated actual net effect on the
(ii) the phase out, if any, of itemized deductions, (iii) the estimated actual
net tax rate attributable to any employment taxes, and (iv) any other tax
provision that in the judgment of the Auditor will actually affect Executive’s
estimated actual blended marginal tax rate.
determined, the portion of the
6
excess is finally determined, but in no event later than December 31st of the
year following the year in which the applicable taxes are remitted. The
Payments.
6.3 Subject to Section 6.4, the payments provided in subsections (A),
(C) and (D) of Section 6.1 hereof and in Section 6.2 hereof shall be made not
later than the fifth (5th) business day following the Date of Termination (or,
with respect to the payment to be made pursuant to Section 6.2, if there is no
for purposes of Section 6.2 hereof but in no event later than December 31st of
the year following the year in which the applicable taxes are remitted);
the thirtieth (30th) calendar day after the Date of Termination. In the event
determined to have been due, such excess shall be payable by the Executive to
statement). Notwithstanding any other provision of this Section 6, the Company
all or any portion of any Gross-Up Payment, and Executive hereby consents to
such withholding.
7
6.4 (A) Notwithstanding any provisions of this Agreement to the contrary,
and determined pursuant to procedures adopted by the Company) at the time of his
received by the Executive upon separation from service would be considered
deferred compensation under Section 409A, amounts that would otherwise be
following the Executive’s separation from service (the “Delayed Payments”) and
benefits that would otherwise be provided pursuant to this Agreement (the
“Delayed Benefits”) during the six-month period immediately following the
Executive’s separation from service (such period, the “Delay Period”) shall
service or (ii) Executive’s death (the applicable date, the “Permissible Payment
Date”). The Company shall also reimburse the Executive for the after-tax cost
incurred by the Executive in independently obtaining any Delayed Benefits (the
“Additional Delayed Payments”).
(B) With respect to any amount of expenses eligible for reimbursement under
Sections 6.1 (B), (E) and (G), such expenses shall be reimbursed by the Company
(C) For purposes of Section 409A, the Executive’s right to receive any
“installment” payments pursuant to this Agreement shall be treated as a right to
6.5 The Company shall deposit the estimated Delayed Payments and estimated
Additional Delayed Payments into an irrevocable grantor trust (for purposes of
this Section 6, the “Grantor Trust”) not later than the fifth business day
following the occurrence of a Potential Change in Control. The Company shall
deposit additional amounts into the Grantor Trust on the monthly basis equal to
the interest accrued on the Delayed Payments (and any earlier interest payments)
at the United States 5-year Treasury Rate plus 2%, and the amount held in the
Grantor Trust shall be paid to the Executive (in accordance with the terms of
the Grantor Trust) on the Permissible Payment Date.
6.6 The Company also shall pay to the Executive all legal fees and expenses
payments shall be made within five (5) business days (but in any event no later
the expenses) after delivery of the Executive’s written requests for payment
reasonably may require, provided that (i) the amount of such legal fees and
expenses that the Company is obligated to pay in any
8
Company is obligated to pay in any other calendar year, (ii) the Executive’s
or exchanged for any other benefit, and (iii) the Executive shall not be
entitled to reimbursement unless he has submitted an invoice for such fees and
expenses at least ten (10) business days before the end of the calendar year
The Company shall also pay all legal fees and expenses incurred by the Executive
application of section 4999 of the Code to any payment or benefit hereunder.
Payment pursuant to the preceding sentence will be made within fifteen
(15) business days after delivery of the Executive’s written request for payment
remitted to the taxing authority, or where as a result of the audit or
proceeding no taxes are remitted, the end of the calendar year in which the
Agreement.
and during the Term, shall mean (i) if the Executive incurs a separation from
service due to Disability, thirty (30) calendar days after Notice of Termination
performance of the Executive’s duties during such thirty (30) calendar day
period), and (ii) if the Executive incurs a separation from service for any
case of a termination by the Company, shall be the 30th calendar day after
Notice of Termination is given (except in the case of a termination for Cause,
in which case the Date of Termination will be determined in accordance with
termination by the Executive, shall not be less than fifteen (15) calendar days
nor more than sixty (60) calendar days, respectively, from the date such Notice
specifically provided in Sections 6.1(B) and 6.1(G) hereof, no payment or
9
9.1 The Executive agrees that restrictions on his activities during and
after his employment are necessary to protect the goodwill, Confidential
Information and other legitimate interests of the Company and its Subsidiaries,
and that the agreed restrictions set forth below will not deprive the Executive
of the ability to earn a livelihood:
the Company other than for Cause, death, or Disability (the “Non-Competition
Period”), the Executive shall, without the written consent of the Board,
engages or proposes to engage in any Competitive Business, then the Company’s
(ii) during the Term and thereafter, he will remain bound by Section 8(a) of the
Employment Agreement.
having been cured within fifteen (15) calendar days after written notice to the
Executive specifying the breach in reasonable detail.
perform this Agreement in the same manner and to
10
estate.
To the Company: The Stanley Works
1000 Stanley Drive
Attention: General Counsel
in the event that the Executive’s employment with the Company is terminated
not supersede Sections 3(c), 3(d), 3(e), 3(g), 3(h), or 3(i) of the Employment
Agreement. To the extent that this Agreement does not supersede the Employment
Agreement but provides payments or benefits in excess of those to which the
Executive is entitled under the Employment Agreement, the Executive shall be
entitled to (i) such excess payments and benefits and (ii) payments and benefits
due pursuant to the Employment Agreement. Further, to the extent this Agreement
does not supersede the Employment Agreement or any other agreement setting forth
the terms and conditions of the Executive’s employment with the Company, it
shall not result in any duplication of benefits to the Executive. The validity,
11
those under Sections 6 and 7 hereof) shall survive such expiration. To the
extent applicable, it is intended that the compensation arrangements under this
construed in a manner to give effect to such intention.
appeal to the Board a decision of the Board within sixty (60) calendar days
Board hereunder shall be subject to a de novo review by a court of competent
jurisdiction.
(A) “Additional Delayed Payments” shall have the meaning set forth in
Section 6.4 hereof.
(C) “Annual Base Salary” shall have the meaning set forth in Section 3(a)
(D) “Annual Target Bonus Percentage” shall have the meaning set forth in
12
(E) “Auditor” shall have the meaning set forth in Section 6.2 hereof.
the Code.
(G) “Beneficial Owner” shall have the meaning set forth in Rule 13d-3 under
the Exchange Act.
(H) “Board” shall mean the Board of Directors of the Company.
(I) “Cause” for termination by the Company of the Executive’s employment
(J) A “Change in Control” shall be deemed to have occurred if the event set
the Board or nomination for election by the Company’s shareowners was approved
recommended; or;
13
outstanding securities; or
(K) “Code” shall mean the Internal Revenue Code of 1986, as amended from
time to time.
(L) “Company” shall mean The Stanley Works and, except in determining under
(M) “Competitive Business” shall have the meaning set forth in
Section 5(c)(ii) of the Employment Agreement.
(N) “Confidential Information” shall have the meaning set forth in Section
(O) “DB Pension Plan” shall mean any tax-qualified, supplemental or excess
14
(P) “DC Pension Plan” shall mean any tax-qualified, supplemental or excess
benefits.
(Q) “Date of Termination” shall have the meaning set forth in Section 7.2
hereof.
(R) “Delayed Benefits” shall have the meaning set forth in Section 6.4
hereof.
(S) “Delayed Payments” shall have the meaning set forth in Section 6.4
hereof.
(T) “Delay Period” shall have the meaning set forth in Section 6.4 hereof.
(U) “Disability” shall have the meaning set forth in Section 4(a) of the
Employment Agreement.
(V) “Employment Agreement” shall mean the Employment Agreement by and
between the Company and the Executive, dated February 3, 2004, and any
subsequent amendments thereto.
(W) “Exchange Act” shall mean the Securities Exchange Act of 1934, as
(X) “Excise Tax” shall mean any excise tax imposed under section 4999 of
the Code.
(Y) “Executive” shall mean the individual named in the first paragraph of
this Agreement.
(Z) “Good Reason” for termination by the Executive of the Executive’s
except for
15
location more than thirty-five (35) miles from the Executive’s principal place
due;
limited to the Company’s 2001 Long-Term Incentive Plan and Management Incentive
Compensation Plan and Section 3(j) (“Pension Make-Whole”) of the Employment
Control;
16
(VIII) Breach by the Company of the provisions of Section 10.1 hereof; or
(IX) any event that would constitute “Good Reason” pursuant to the
Employment Agreement.
Reason hereunder.
(AA) “Gross-Up Payment” shall have the meaning set forth in Section 6.2
hereof.
(BB) “Grantor Trust” shall have the meaning set forth in Section 6.5
hereof.
(CC) “Notice of Termination” shall have the meaning set forth in
Section 7.1 hereof.
(DD) “Permissible Payment Date” shall have the meaning set forth in
Section 6.4 hereof.
(EE) “Person” shall have the meaning given in Section 3(a)(9) of the
(FF) “Potential Change in Control” shall be deemed to have occurred if the
Control;
17
(GG) “Prior Agreement” shall have the meaning set forth in the second
(HH) “Retirement” shall be deemed the reason for the termination by the
(II) “Section 409A” shall mean section 409A of the Code and any proposed,
to section 409A by the U.S. Department of Treasury or the Internal Revenue
Service.
(JJ) “Severance Payments” shall have the meaning set forth in Section 6.1
hereof.
(KK) “Subsidiary” means any corporation or other business organization of
more Subsidiaries.
(LL) “Target Annual Bonus Percentage” shall have the meaning set forth in
(MM) “Tax Counsel” shall have the meaning set forth in Section 6.2 hereof.
(NN) “Term” shall mean the period of time described in Section 2 hereof
(OO) “Total Payments” shall mean those payments so described in Section 6.2
hereof.
first above written.
THE STANLEY WORKS
By: Name: Bruce H. Beatt Title: Vice President,
General Counsel and Secretary EXECUTIVE
By: Name: John F. Lundgren
18 |
SECURITIES PURCHASE AGREEMENT
25, 2019, between OncBioMune Pharmaceuticals, Inc., a Nevada corporation (the
“Company”), and JEB Partners, L.P. (the “Purchaser”).
as follows:
ARTICLE I.
DEFINITIONS
Securities Act.
hereto, which bear interest at the rate of 5% per annum, and shall be senior as
to all Indebtedness except for any notes issued pursuant to any purchase money
equipment loan or capital leasing arrangement approved by the Purchaser and all
indebtedness under the 14.29% Original Issue Discount 10% Senior Secured
Convertible Notes due February 2, 2018, the 10% Original Issue Discount 5%
Senior Secured Convertible Notes due March 25, 2018 , the 10% Original Issue
Discount 5% Senior Secured Convertible Notes due September 29, 2018, the 10%
Original Issue Discount 5% Senior Secured Convertible Notes due November 13,
2018, the 10% Original Issue Discount 5% Senior Secured Convertible Notes due
May 24, 2019, the 10% Original Issue Discount 5% Senior Secured Convertible
Notes due July 13, 2019, the 8% Convertible Note due July 24, 2019, the 5%
Convertible Redeemable Notes due January 18, 2020, the 10% Original Issue
Discount 5% Senior Convertible Notes due November 25, 2019, the 10% Original
Issue Discount 5% Senior Convertible Notes due December 2, 2019, the 10%
Original Issue Discount 5% Senior Convertible Notes due December 29, 2019, the
10% Original Issue Discount 5% Senior Convertible Notes due January 29, 2020,
the 10% Original Issue Discount 5% Senior Convertible Notes due February 3,
2020, the 10% Original Issue Discount 5% Senior Convertible Notes due March 30,
2020 and the 5% Convertible Redeemable Note due August 27, 2020.
“Note Conversion Price” means $7.50 per share, subject to adjustment as provided
in the Note.
of any kind.
regulations promulgated thereunder.
funds.
Company.
trading.
Markets Pink Open Market (or any successors to any of the foregoing).
contemplated hereunder.
Section 4.12.
time)), (b) if prices for the Common Stock are then reported on the Pink Open
Market maintained by the OTC Markets Group, Inc. (or a similar organization or
hereto.
“Warrant Exercise Price” means $15.00 per share.
ARTICLE II.
PURCHASE AND SALE
and the Purchaser agrees to purchase an aggregate of (i) $166,666.67 face value
of 10% original issue discount Notes for a total purchase price of $150,000 and
(ii) 16,667 Warrants, which is equal to 75% of the Shares issuable upon
conversion of the purchased Notes. The Purchaser shall deliver to the Company,
via wire transfer immediately available funds equal to the Purchaser’s
Purchaser, and the Company shall deliver to the Purchaser the Note and a Warrant
2.2 Deliveries.
Closing Date)
2.3 Closing Conditions.
this Agreement.
therein);
this Agreement;
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
of all Liens imposed by the Company. The Company shall reserve from its duly
stockholders.
Material Adverse Effect.
agreement or permission.
has repudiated any provision thereof;
injunction, judgment, order, decree, ruling, or charge; and (E) Except
permission.
identifiable information.
any.
Documents.
electronic transfer.
Company during the twelve months preceding the date of this Agreement do not
hereof.
provided thereunder.
date therein):
desired.
ARTICLE IV.
Securities Act.
the following form:
favor.
injunctive relief.
York City time) on or before the fourth trading date following the date of
execution hereof, file a Current Report on Form 8-K disclosing the material
terms of this Agreement, including the Transaction Documents as exhibits
thereto, with the SEC within the time required by the Exchange Act. The Company
include the name of any Purchaser in any filing with the SEC or any regulatory
thereto the Purchaser shall have consented to the receipt of such information
without the Purchaser’s consent, the Company hereby covenants and agrees that
the Purchaser shall not have any duty of confidentiality to the Company, any of
notice provided pursuant to any Transaction Document or any other communications
made by the Company, or information provided, to the Purchaser constitutes, or
Subsidiaries, the Company shall simultaneously file such notice or other
material information with the SEC pursuant to a Current Report on Form 8-K
unless the Purchaser covenants and agrees to maintain that material information
confidential and to comply with applicable law until such Form 8-K is filed. The
foregoing covenant in effecting transactions in securities of the Company. In
addition to any other remedies provided by this Agreement or other Transaction
Documents, if the Company provides any material, non-public information to the
Purchaser without their prior written consent, and it fails to immediately (no
later than that Business Day) file a Form 8-K disclosing this material,
non-public information, it shall pay the Purchaser as partial liquidated damages
Purchaser’s Subscription Amount beginning with the day the information is
disclosed and ending and including the day the Form 8-K disclosing this
information is filed.
Company.
favor of the Purchaser on a pro rata basis based on the Purchaser’s Subscription
three times the number of shares of Common Stock issuable upon conversion of the
Notes and exercise of the Warrants (subject to adjustment for stock splits and
dividends, combinations and similar events) (the “Reserve Ratio”).
transfer.
Subsequent Financing Notice.
Purchaser.
Subsidiaries.
4.13 Reserved.
Common Stock.
sales of Common Stock, including shares underlying any derivative securities,
4.21 Reserved.
ARTICLE V.
MISCELLANEOUS
before October 31, 2019; provided, however, that no such termination will affect
Purchaser.
5.6 Reserved.
provisions hereof.
“Purchaser.”
5.18 Reserved.
TRIAL BY JURY.
exercise.
ONCBIOMUNE PHARMACEUTICALS, inc.
Address for Notice: By: /s/ Andrew Kucharchuk 11441 Industriplex
Blvd, Suite 190 Name: Andrew Kucharchuk Baton Rouge, LA 70809 Title: Chief
Financial Officer Email: bbarnett@oncbiomune.com With a copy to (which
Southeast Financial Center
Miami, FL 33131
Attention: Clayton Parker
Name of Purchaser: JEB Partners, L.P.
Signature of Authorized Signatory of Purchaser: /s/ JEB Partners, L.P.
Email Address of Authorized Signatory: __________________
notice):
Subscription Amount: $ 150,000
EXHIBIT A
EXHIBIT B
Form of Warrant
|
EXHIBIT 31.2CERTIFICATION PURSUANT TO RULE 13A-14 OR 15D-14 OF THE SECURITIESEXCHANGE ACT OF 1934, AS ADOPTED PURSUANT TO SECTION -OXLEY ACT OF 2002I, Henry Fong, certify that: 6. I have reviewed this Quarterly Report on Form 10-Q of Greenfield Farms Food, Inc. (the "registrant");7. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;8. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;9. I am responsible for establishing and maintaining internal disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15(d)-15(f))for the registrant and have: (e) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under my supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to me by others within those entities, particularly during the period in which this report is being prepared;(f) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under my supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;(g) Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report my conclusion about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and(h) Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and 10.I have disclosed, based on my most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions): (a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting. Date: November 18, 2015By:/s/ Henry FongHenry FongPrincipal Accounting Officer
|
Exhibit 10.26
Employment Contract – Convenience Translation
(This document is a translation of the German contract for information purposes
only and does not carry any legal binding)
between
Mr. Ingo Zankel
Müllerstrasse
München
- hereinafter called “employee” -
and
SCM Microsystems GmbH
Oskar-Messter-Str. 13
D — 85737 Ismaning
Germany
- hereinafter called “SCM” or the “the Company” -
1. ENGAGEMENT, DUTIES, PLACE OF EMPLOYMENT
Engagement will take place effective from January 1, 2005. Title will be Chief
Operating Officer. Place of employment will be Ismaning. The employee’s tasks
involve extensive travelling within and outside Europe. SCM reserves the right
to assign other or additional duties within the scope of the Company and within
the scope of the employee’s knowledge and abilities and/or relocate him to a
different place of work as far as this is just and reasonable.
2. DURATION, PROBATION
Each party has the right to terminate the contract to the end of the following
quarter with a period of 6 (six) weeks. The notice of termination has to be
performed in written form. The right of an extraordinary notice of termination
will remain unaffected.
Furthermore, especially in case of a notice of termination, SCM reserves the
right to release the employee from his tasks without changing his monthly
payments. In this case the release period will be credited against the
employee’s vacation entitlement (including possible remaining vacation days of
previous years).
The working relationship will also expire by the time the employee will have
completed the 65th year of life without the necessity of an effective written
notice of termination.
3. SALARY
The monthly gross basic salary amount will be
€ 16.666,67 (in words: sixteen thousand six hundred and sixty six comma sixty
six EURO)
and will be paid 12 times a year, by the end of each corresponding month.
This is equivalent to a basic annual salary of
€ 200.000,00 (in words: two hundred thousand EURO)
In addition, the employee will receive a variable bonus according to the SCM
Bonus Program, whereby the sum € 50.000,00 gross will be based on the yearly
100% achievement of the targets. The bonus depends on the success (and figures)
of the Company and on the personal objectives and performance of the employee
(MbO). The bonus will be paid quarterly and based on the valid Bonus Policy of
SCM. For the first six months, 50% of the total amount of the bonus is
guaranteed.
Furthermore, the employee will receive a yearly bonus in sum of gross €
100.000,00 upon 100% achievement of the yearly targets, respectively,
correspondingly proportionate. The targets will be set in agreement with the
Board of Directors and the Chief Executive Officer. At the end of the year the
achieved targets will likewise be set and decided upon by the Board of Directors
and the Chief Executive Officer, approved and (bonus) paid in April of the
following year.
According to §5 of this contract possible extra and/or overtime work shall be
satisfied with the monthly salary. The salary will be reviewed once a year.
2
The employee will be granted 80,000 stock options based on the valid Employee
Stock Option Plan and subject to the approval of the Board of Directors of SCM.
The employee can participate in SCM’s valid Employee Stock Purchase Plan (ESPP).
The employee will be entitled to the use of a company car (category BMW
5-series) which is also allowed for private use; based on the Conditions of SCM
Company Car Policy. Concerning the private use of the afore-mentioned car, the
employee holds own responsibility to accordingly adhere to the legal tax
declaration requirements. The cost of the fuel will be covered in full by SCM.
The employee can have an option, instead of a company car; to receive a
corresponding car allowance equivalent to the sum of gross € 1.250,00 monthly.
4. ABSENCE / SICK LEAVE
Should the employee be prevented from work due to sickness without his own fault
he will continuously receive salary payment according to the effective legal
requirements.
In case the employee will be insured by a third party and SCM will continue to
pay the full salary in case of sick leave the employee will make assignments to
all claims for damages to SCM in this case. He is then obliged to provide SCM
with all necessary information regarding the claim for damages.
5. WORKING HOURS
The regular working hours correspond to the requirements of the job description
and are at least 40 hours per week. Beginning and end of the daily working hours
are also depending on the requirements of the position and on the Company’s
workflow. The employee is obliged to work overtime as long as this is just and
reasonable.
6. VACATION
The employee is entitled to 28 vacation days per calendar; this claim will be
increased by 1 day up to a maximum of 31 days per full calendar year after three
years of staff membership with the Company. Should the working relationship with
SCM start during a running calendar year there will be a proportionate claim for
the respective vacation days, i.e. 1/12 per month. Every vacation has to be
confirmed with the SCM management. In any case all effective legal requirements
will prevail.
7. HINDRANCE FROM WORK
The employee is obliged to immediately inform SCM about any kind of hindrance
from work and let the management know the estimated duration of absence. On
demand of the management the reason of absence has to be advised by the
employee.
3
In case of sick leave the employee is obliged to bring a medical certificate
stating the disability to work after three days of sickness and has to inform
the Company about the estimated duration of absence. Should the absence last
longer than stated in the attestation the employee has to bring another medical
certificate within the next three working days.
Furthermore, the employee is obliged to bring an attestation stating the
necessity of any regimens or other kinds of medical therapies including the
estimated duration of absence from the Company as well as to inform the Company
about the first day of absence. In case the regimen lasts longer than stated in
the attestation the employee is obliged to bring a further medical certificate.
8. FURTHER BENEFITS
According to SCM’s travel expense regulations the employee will get a refund for
all travel expenses and charges initiated by the Company.
9. NONDISCLOSURE
During his employment with SCM the employee is obliged to keep any kind of
information secret, especially confidential information regarding Company or
business secrets, no matter if this information affects the Company itself or
has been committed to SCM or the employee by any third parties and no matter if
this information is related to the employee’s individual functions within the
Company. All Company- or business secrets are defined as Company facts that must
be kept secret as per request of the SCM management.
This especially concerns developments related to existing or future products or
services that are being offered / sold or used by SCM as well as data or
information about the general business model referring to turnover, expenses,
profit/loss calculations, pricing, organisation, customer- or supplier lists
etc. It also concerns developments, procedures, business models etc. which are
basically known as such but whose utilization by SCM is not officially disclosed
publicly.
The protrusive Non-Disclosure Agreement also refers to business matters of other
companies that are economically or organisationally related to SCM and will
persist throughout the working relationship.
All letters concerning SCM and/or interested parties have to be immediately
returned to SCM on demand or after termination of the working relationship
regardless of the addressee as well as other available business items, drawings,
memos, records, data media, books, samples, devices, tools, materials, or any
other properties of the Company.
10. DATA PROTECTION
According to § 5 BDSG (Bundesdatenschutzgesetz = federal data protection law)
the employee herewith agrees that he will neither handle any protected
person-related data without authorization
4
and other than in the legitimate way, nor publish them, nor customize them, nor
use them in any other wrongful way, even not after his possible resignation or
withdrawal from the Company.
In case the employment relationship will terminate, the employee will make sure
to return all documents, materials, copies, notes etc. to SCM as far as those
are related to any business matters or customers of SCM or are a sole property
of the Company.
11. PATENTS / INVENTIONS
For inventions and technical amendments the regulations of the Act of Employee
Inventions (ArbNErfG) as of 25.07.1957 and the hereto defined guidelines will
prevail. The employee is obliged to immediately announce all inventions and/or
technical amendments made during her working relationship with the Company in
written form.
Four months after the notification SCM will have the right to make use of the
invention or the technical amendment by written declaration in accordance with
the employee; with the declaration the invention or the technical amendment will
be transferred to SCM including all inner-country and overseas rights. In this
case the employee has the right to claim an adequate compensation. Should SCM
fail to task the invention within the above-mentioned terms the employee has the
right to freely dispose of it himself.
The employee confirms explicitly that at the very moment there are no
liabilities against any former employer or third parties in terms of transfers
of inventions or technical amendments.
12. COPYRIGHT
As far as the case of copyright arises in connection with the employee’s
function within the Company the employee herewith confirms that SCM will be
entitled to claim a comprehensive, exclusive, business related exploitation
right for the duration of the copyright within the scope of the copyright
regulations. This also applies after the employee’s possible interim withdrawal
from the Company. Furthermore SCM will have the right to issue sublicenses of
the exploitation right.
In case the regulations for work results are not assignable, SCM reserves the
right to obtain exclusive and spatiotemporally unlimited utilization rights for
all acquainted utilization kinds. This particularly includes the right to make
modifications, alterations or other kinds of adaptions as well as to duplicate,
publish, distribute or perform those work results either in original or in
modified, altered form. Furthermore SCM will be authorized to keep them at call,
wirelessly transmit them through transmission lines or other ways und use them
for the operation of data processing facilities.
The employee will attach a personal list with all inventions, software,
specifications, concepts etc. for which any rights (corresponding to either this
§12 or the previous mentioned paragraph §11) have been acquired before the
employment relationship with SCM. As far as the employee brings those rights
into SCM`s business, the Company will be authorized for gratuitous, unlimited
utilization rights unless both parties have agreed upon any other solution in
written form. Both parties agree that SCM
5
will regard any other inventions, software, specifications, concepts, etc. that
have not been listed on the attachment as its own work results for which SCM
will keep the exclusive utilization rights.
13. ADDITIONAL OCCUPATIONS
During the working relationship with the Company the employee will have to draw
her full attention and skills solely to SCM and cannot take over additional
gratuitous or non-gratuitous occupations without a written permission of the
Company management. SCM will only decline the approval in case of justifiable
business issues.
14. CONTRACT VALIDITY AND OTHER REGULATIONS
In case one of the regulations of this contract are or become ineffective the
validity of the other remaining stipulations will not be affected. The
application document is part of this employment contract. Any oral agreements to
this contract do not exist. For legal effect of the contract all modifications
or additions need to be done in written form.
This contract is subject to the Federal German Law.
Stipulated venue is Munich, Germany.
Ismaning, November 16, 2004
/s/ SCM Microsystems GmbH
/s/ Ingo Zankel
SCM Microsystems GmbH
Ingo Zankel
6 |
Name: Commission Regulation (EEC) No 265/81 of 29 January 1981 on the quantities in respect of beef and veal products originating from Botswana, Kenya, Madagascar and Swaziland to be imported during 1981
Type: Regulation
Date Published: nan
31 . 1 . 81 Official Journal of the European Communities No L 27/59 COMMISSION REGULATION (EEC) No 265/81 of 29 January 1981 on the quantities in respect of beef and veal products originating from Botswana, Kenya, Madagascar and Swaziland to be imported during 1981 Whereas, in the case of Botswana, Decision 80/354/EEC of 17 March 1980 (4) currently subjects imports to health measures, HAS ADOPTED THIS REGULATION : Article 1 THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Economic Community, Having regard to Council Regulation (EEC) No 435/80 of 18 February 1980 on the arrangements applicable to agricultural products and certain goods resulting from the processing of agricultural products originating in the African, Caribbean and Pacific States or in the overseas countries and territories ( x ), as amended by Regulation (EEC) No 3486/80 (2 ), and in particular Article 23 thereof, Having regard to Commission Regulation (EEC) No 486/80 of 28 February 1980 laying down detailed rules for the application in beef and veal of Regula tion (EEC) No 435/80 (3 ), and in particular Article 2 (3) thereof, Whereas Regulation (EEC) No 435/80 provides for the possibility of issuing import licences for beef and veal products ; Whereas the quantities in respect of which it will be possible to apply for licences from 1 February 1981 should be fixed ; Applications for licences may be submitted, in accor dance with Article 2 (4) of Regulation (EEC) No 486/80 during the first 10 days of February 1981 , in respect of the following quantities of boned beef and veal : Botswana : Kenya : Madagascar : Swaziland : 18 916 tonnes 142 tonnes 7 579 tonnes 3 363 tonnes Article 2 This Regulation shall enter into force on 1 February 1981 . This Regulation shall be binding in its entirety and directly applicable in all Member States . Done at Brussels , 29 January 1981 . For the Commission Poul DALSAGER Member of the Commission ( ») OJ No L 55, 28 . 2 . 1980 , p . 4 . (2 ) OJ No L 365, 31 . 12 . 1980 , p . 2 . (3 ) OJ No L 56, 29 . 2 . 1980 , p . 22 . (4 ) OJ No L 79 , 23 . 3 . 1980 , p . 23 . |
PARKE BANCORP, INC. 2 PARKE BANCORP, INC. 2 TABLE OF CONTENTS Page Section One Letter to Shareholders 1 Selected Financial Data 3 Management’s Discussion and Analysis of Financial Condition and Results of Operations 4 Market Prices and Dividends 21 Management’s Report on Internal Control Over Financial Reporting 23 Section Two Report of Independent Registered Public Accounting Firm 1 Consolidated Financial Statements 2 Notes to Consolidated Financial Statements 7 Corporate Information 55 To Our Shareholders: 2012 has been another very challenging year for the business community and the banking industry both nationally and regionally. However, Parke Bancorp, Inc. has again generated near record earnings, with $6.3 million, or $1.17 per diluted share, in net income, an increase of 0.5% over 2011. We are again proud of this accomplishment as this is our 12th consecutive year of strong earnings, especially when considering the continued weak real estate market, which is responsible for many non-performing loans in the banking industry and at Parke Bank. Non-performing loans have a negative impact on the Bank’s earnings, through charge offs, increased expenses, legal and carrying costs, combined with the loss of interest income from that asset. Borrowers continue to have use of their property while the bank has to protect its collateral by paying real estate taxes, insurance and maintenance. We are making positive progress in disposing of our non-performing loans by taking an aggressive approach to troubled asset disposition. Although in some cases this has been seriously delayed by the length of time it takes to work through the foreclosure process in New Jersey.By taking an aggressive approach to troubled asset disposition, our losses have been minimized, and in some instances, recoveries have been made. Growth has been very difficult in 2012, with our total assets decreasing 2.6% to $770.5 million as of December 31, 2012. Competition has been fierce, with the big banks starting to aggressively compete in the small loan marketplace, combined with many small businesses deleveraging their balance sheets and avoiding increased debt. The extremely low interest rate environment has increased pressure to modify existing loans to a lower interest rate, which also adds pressure to our net interest margin. However, management and our lending staff have remained diligent, maintaining a net interest margin in excess of 4%, keeping Parke Bank as one of the leaders in our peer group in this category. Persistent low interest rates will increase the pressure on the banking industry’s net interest margin, which will negatively impact Bank earnings. There is no relief for increased interest rates on the near term horizon, which makes it much more important to maintain very tight controls of expenses and to generate earnings through alternative avenues. Although our Bank’s cost efficiency rate has increased to 43%, we are still one of the leaders in our peer group in controlling our Bank’s expenses. The primary reason for the higher ratio is the dramatic increase in regulatory requirements. New regulations in the Dodd-Frank Act brought increases to a community bank’s operating costs which makes it more difficult to provide our customers with prompt quality service. Banking requirements like stress testing and Enterprise Risk Management (ERM) are the new buzz terms in community banking. Although initially reported as requirements for only the biggest banks, it is now an important requirement for community banks, which costs tens of thousands of dollars. We have implemented stress testing of our loan portfolio and implemented an ERM program. Parke Bank has always maintained tight controls over expenses and in this rising cost environment, it is even more important in supporting our strong earnings. 1 There continues to be signs that the economy, and specifically the real estate market, has bottomed out and that specific markets have seen an improvement in real estate sales and values. A specific example is a construction project of 28 townhomes that we were fortunate enough to finance for one of our quality borrowers that in only three months is sold out. We are hopeful that this trend continues and becomes more wide spread. The residential rental market has remained strong, especially in the Philadelphia area. Several previously planned condominium projects have been converted to rental projects and have enjoyed a level of success. These are all positive signs that the economy and the real estate market have a heartbeat and may be coming back to life. Although modest when compared to our past growth rates, our Bank’s loan portfolio grew close to 1% in 2012 to $630 million, a strong accomplishment in a difficult lending environment. Our SBA Company, 44 Business Capital, continues to be the top SBA lender in the Delaware Valley area for the second year in a row. Thanks to an extremely talented and committed staff, this company continues to be a leader in SBA lending. We carefully expanded into the Florida market two years ago and we are now in the top 25 SBA lenders in that market. We continue to carefully analyze potential new markets for expansion. As always, any expansion is balanced with careful credit policies, underwriting, quality staff and servicing of our loan portfolio. We will continue to focus on maintaining our Bank’s financial strength in 2013. This will be accomplished on multiple fronts; continued strong earnings that will strengthen our capital position, which is already twice the amount required for Tier 1 capital of a well capitalized bank, careful control of our Bank’s expenses and a clear focus on reducing our non-performing and classified loans, while complying with all regulatory requirements. Our Board of Directors, management and staff is committed to continuing to work very hard to support a strong return for our investors, which was close to 10% in 2012. We appreciate our shareholders’ commitment and loyalty; it is something that we don’t take for granted. C.R. “Chuck” Pennoni Vito S. Pantilione Chairman President and Chief Executive Officer 2 Selected Financial Data At or for the Year Ended December, 31 Balance Sheet Data: (in thousands) Assets $ Loans, Net $ Securities Available for Sale $ Securities Held to Maturity $ Cash and Cash Equivalents $ OREO $ — $ Deposits $ Borrowings $ Equity $ Operational Data: (in thousands) Interest Income $ Interest Expense Net Interest Income Provision for Loan Losses Net Interest Income after Provision for Loan Losses Noninterest Income (Loss) ) ) Noninterest Expense Income Before Income Tax Expense Income Tax Expense Net Income Attributable to Company and Noncontrolling Interest Net Income Attributable to Noncontrolling Interest ) ) ) — — Preferred Stock Dividend and Discount Accretion — Net Income Available to Common Shareholders $ Per Share Data: 1 Basic Earnings per Common Share $ Diluted Earnings per Common Share $ Book Value per Common Share $ Performance Ratios: Return on Average Assets % Return on Average Common Equity % Net Interest Margin % Efficiency Ratio % Capital Ratios: Equity to Assets % Dividend Payout Ratio % Tier 1 Risk-based Capital2 % Total Risk-based Capital2 % Asset Quality Ratios: Nonperforming Loans/Total Loans % Allowance for Loan Losses/Total Loans % Allowance for Loan Losses/Non-performing Loans % 1 Per share computations give retroactive effect to stock dividends declared in each of 2008-2012 2 Capital ratios for Parke Bank 3 MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS Forward Looking Statements Parke Bancorp, Inc. (the “Company”) may from time to time make written or oral "forward-looking statements", including statements contained in the Company's filings with the Securities and Exchange Commission (including the Proxy Statement and the Annual Report on Form 10-K, including the exhibits), in its reports to stockholders and in other communications by the Company, which are made in good faith by the Company. These forward-looking statements involve risks and uncertainties, such as statements of the Company's plans, objectives, expectations, estimates and intentions, which are subject to change based on various important factors (some of which are beyond the Company's control). The following factors, among others, could cause the Company's financial performance to differ materially from the plans, objectives, expectations, estimates and intentions expressed in such forward-looking statements: the strength of the United States economy in general and the strength of the local economies in which Parke Bank (the “Bank”) conducts operations; the effects of, and changes in, trade, monetary and fiscal policies and laws, including interest rate policies of the Board of Governors of the Federal Reserve System, inflation, interest rates, market and monetary fluctuations; the timely development of and acceptance of new products and services of the Bank and the perceived overall value of these products and services by users, including the features, pricing and quality compared to competitors' products and services; the impact of changes in financial services' laws and regulations (including laws concerning taxes, banking, securities and insurance); technological changes; changes in consumer spending and saving habits; and the success of the Bank at managing the risks resulting from these factors. The Company cautions that the listed factors are not exclusive. Overview The Company's results of operations are dependent primarily on the Bank's net interest income, which is the difference between the interest income earned on its interest-earning assets, such as loans and securities, and the interest expense paid on its interest-bearing liabilities, such as deposits and borrowings. The Bank also generates noninterest income such as service charges, Bank Owned Life Insurance (“BOLI”) income, gains on sales of loans guaranteed by the Small Business Administration (“SBA”) and other fees. The Company's noninterest expenses primarily consist of employee compensation and benefits, occupancy expenses, marketing expenses, professional services, FDIC insurance assessments, data processing costs and other operating expenses. The Company is also subject to losses from its loan portfolio if borrowers fail to meet their obligations. The Company's results of operations are also significantly affected by general economic and competitive conditions, particularly changes in market interest rates, government policies and actions of regulatory agencies. Results of Operation. The Company recorded net income available to common shareholders of $6.3 million, or $1.17 per diluted share, and $6.3 million, or $1.15 per diluted share, for 2012 and 2011, respectively. Pre-tax earnings amounted to $12.3 million for 2012 and $13.7 million for 2011. 4 Total assets of $770.5 million at December 31, 2012 represented a decrease of $20.3 million, or 2.6%, from December 31, 2011. Total loans amounted to $629.7 million at year end 2012 for an increase of $4.6 million, or 0.7% from December 31, 2011. Deposits grew by $2.4 million, an increase of 0.4%. Total capital at December 31, 2012 amounted to $83.5 million and increased $6.3 million, or 8.1%, during the past year. The principal objective of this financial review is to provide a discussion and an overview of our consolidated financial condition and results of operations. This discussion should be read in conjunction with the accompanying financial statements and related notes thereto. 5 Comparative Average Balances, Yields and Rates.The following table sets forth average balance sheets, average yields and costs, and certain other information for the periods indicated. Interest rate spread is the difference between the average yield earned on interest-earning assets and the average rate paid on interest-bearing liabilities. Net interest margin is net interest income divided by average earning assets. All average balances are daily average balances. Nonaccrual loans were included in the computation of average balances, and have been reflected in the table as loans carrying a zero yield. The yields set forth below include the effect of deferred fees, discounts and premiums that are amortized or accreted to interest income or expense. For theYears Ended December 31, Average Balance Interest Income/ Expense Yield/ Cost Average Balance Interest Income/ Expense Yield/
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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 25, 2012 AMBASSADORS GROUP, INC. Delaware No. 0-33347 91-1957010 (State or Other Jurisdiction of Incorporation) (Commission File Number) (IRS Employer Identification No.) Dwight D. Eisenhower Building, 2lint Road, Spokane, WA 99224 (Address of principal executive offices) (Zip Code) Registrant’s telephone number, including area code (509) 568-7800 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)) Item 1.01. Entry into a Material Definitive Agreement. Effective March 31, 2012, Ambassadors Group, Inc. (the "Registrant") entered into an amendment to its Credit Agreement (the "Second Amendment to Credit Agreement") with Wells Fargo Bank, National Association (the "Bank") whereby the Registrant amended the covenants of its existing primary credit facility. Under the terms of the Second Amendment to Credit Agreement, the Registrant may continue to access up to an aggregate principal amount of $20.0 million, through June 1, 2014. The Registrant’s obligation to repay advances under the line of credit is evidenced by a Revolving Line of Credit Note dated May 31, 2011 as amended by the First Modification to Promissory Note effective March 31, 2012.The credit facility contains a subfeature for the issuance of standby letters of credit not to exceed $2.5 million in the aggregate. The Second Amendment to Credit Agreement modified the Registrant’sfinancial covenants as follows: Existing Agreement
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Putnam Investments One Post Office Square Boston, MA 02109 November 2, 2007 Securities and Exchange Commission 450 Fifth Street, N.W. Washington, DC 20549 RE: Putnam Funds Trust (Reg. No. (333-515) (811-07513) (the Trust) Post-Effective Amendment No. 75 to Registration Statement on Form N-1A Ladies and Gentlemen: Pursuant to Rule 497(j) under the Securities Act of 1933, as amended, the Trust hereby certifies that the form of Prospectus and Statement of Additional Information that would have been filed on behalf of the Trust pursuant to Rule 497(c) upon the effectiveness of Post-Effective Amendment No. 75 to the Trusts Registration Statement on Form N-1A (the Amendment) would not have differed from that contained in the Amendment, which is the most recent amendment to such Registration Statement and was filed electronically on October 26, 2007. Comments or questions concerning this certificate may be directed to James F. Clark at 1-800-225-2465, ext. 18939. Very truly yours, Putnam Funds Trust /s/ Charles E. Porter By: Charles E. Porter Executive Vice President, Associate Treasurer and Principal Executive Officer cc: ROPES & GRAY LLP
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Title: Need full custody , dads a in and out of life failure who doesn’t pay to support her in anyway
Question:How can I get full custody of my daughter, I’ve been divorced for two years she is four years old and he has not paid for anything in regards to her he doesn’t even come see her he’s been home from his job up North for two weeks and hasn’t even come to see her even when I asked him to watch her so I could go to work he no showed me and I almost got fired until someone saved my butt. Does he have rights to see her once every several months or so when he feels like it? How do I protect her from getting hurt and treated like a convienent playmate rather than a valued child that deserves more ? Dropping in and out of her life can’t emotionally be teaching her how a man should value a person or teach her how she should be treated. I don’t think joint custody makes sense when I have to track him down and beg him for permission to take her on vacation out of province or country. I’ve taken care of her emotionally, mentally physically and financially, can I apply for full custody? Do his parents have Right to her as much as his visitation rights state? Their asking for her this weekend but anytime she goes there she’s a wreck when coming back, hairs not brushed, bedtime doesn’t exist or rules and than I get the job of cleaning it up for the next week while the rest of the house including her little brother get the brunt of her entitled attitude she comes
Back with. What are my rights? What’s the chances I get full custody?
Answer #1: You can petition for full custody. He can dispute it. Ultimately, if you and your coparent can't work something out, a judge will decide, mostly based on what's in your child's interests.
It's worth getting a lawyer to deal with this, to help you look out for your kid's best interests. Custody disputes often qualify for legal aid, so if you can't afford an attorney, start calling around.
If you have an existing custody order, you'll need to abide by it until the courts amend it. If you don't, then either of you can do more or less as you see fit, but cutting off your daughter's access to her father unilaterally may look bad in court if you're not extremely careful. Unless granted by a court order, his parents have no basis to take custody from _you_, but there's nothing stopping your ex from allowing them to babysit. |
Title: roommate arrested for noise violation with no warning, handcuffed on the spot because he was on the lease
Question:My friends and I hosted a karaoke 'party' in our home last friday. there were ten people and we sang over a small stereo along with youtube videos. the cops showed up at 11PM and asked for someone who lives there. my friend walked to the door and asked what was going on, to which they responded "put your hand above your head", handcuffed him, and took him to jail.
he has no record, and had literally just gotten home 5 minutes prior. we're at a complete loss at to how this is legal, as no warning was ever given. he is being charged with a misdemeanor for disturbing the peace of the neighborhood.
the officer felt bad by the end of the drive after listening to how kind and rational my friend is, and told him to call the county prosecutor this week and it would be dropped. he was advised by a lawyer not to do this. his first court date is next monday. any advice?
EDIT: MICHIGAN
Answer #1: >he was advised by a lawyer not to do this. his first court date is next monday. any advice?
If he retained that lawyer, then he should listen to that lawyer's advice. Plead not guilty at the first court date and make sure he has representation.Answer #2: Well don't ever take legal advice from a cop ... that's the best free advice you'll ever get.Answer #3: If the party was disturbing the peace, and disturbing the peace is an arrestable violation in your jurisdiction, there's nothing wrong with this.
He should hire a lawyer to defend him against the charge. Answer #4: There is no legal requirement to give a warning to stop committing crimes. A little surprised that the state law was used instead of some kind of municipal code but it's all legal. Answer #5: He should NOT talk to the prosecutor. The prosecutor doesn't care what happened, he/she is just trying to get a conviction. He should let his lawyer handle it. |
Title: I paid 1300£ for a new laptop, 2 weeks later it became defective and it's apparently my fault.
Im sorry but im quite bad when it comes to consumer rights so i thought i would ask here for some advise.
I bought a brand new laptop for 1300£ after 13 days it became defective. The laptop has been very well taken care off. Out of nowhere one day once opening the screen the "left hinge" that holds the screen popped off making it impossible to further use. I believe this was either caused by weak materials or defect out of the box as such thing shouldn't happened in such a new device.
Upon contacting "MSI" the computer manufacturer i was told that this was not cover under warranty and since it was bought less than two weeks a go, i could possibly try to contact the supplier where i bought the item and they could possibly help.
Upon sending some pictures to the suppliers email i was told that this was my fault, intentionally broken or dropped and they wouldn't be able to help me.
(Please find the pictures below)
It's fraustating to prove innocence in this, im a stuck with 1300£ gone and having to pay an absurd amount to get this fixed and before doing so i was wondering if there's something else i could do.
Below I'll leave the pictures and the laptop provider's term and conditions.
Pictures:
https://ibb.co/fyFMnH
https://ibb.co/jpywMc
T&C (point 7, 8 & 9)
https://www.box.co.uk/conditions-of-sale
Many thanks!
Answer #1: https://www.which.co.uk/consumer-rights/regulation/consumer-rights-act
Consumer rights act 2015 protects you from such faults. Have a read up, go back to then armed with your new knowledge. Answer #2: If you paid with credit card, check the agreement/benefits. Some cards have extended warranty/purchase protection |
Exhibit 10.26
CONDITIONAL
AMENDMENT TO EMPLOYMENT AGREEMENT
THIS CONDITIONAL AMENDMENT to that certain Employment Agreement, dated as of
October 1, 2001, by and between A. Clayton Perfall (“Employee”) and AHL
Services, Inc., a Georgia corporation (“Employer”) (the “Employment Agreement”),
is made and entered into this 28th day of March, 2003, by and between Employer
and Employee.
BACKGROUND
WHEREAS, Employee currently serves as the Chief Executive Officer of Employer,
pursuant to the terms of the Employment Agreement; and
WHEREAS, Employer and Employee are parties to that certain Agreement and Plan of
Merger by and among Huevos Holdings, Inc. (“Purchaser”) and Employer, Frank A.
Argenbright, Jr., Employee and Caledonia Investments plc, dated as of March
, 2003 (the “Acquisition Agreement”); and
WHEREAS, pursuant to the terms of the Acquisition Agreement, Employer will cease
to exist as a public company in a transaction that qualifies as a “Going Private
Transaction” under the terms of the Employment Agreement (the “Merger”); and
WHEREAS, pursuant to Section 3.3 of the Employment Agreement, upon the closing
of a “Going Private Transaction,” Employee would be entitled to receive a
lump-sum payment, within thirty (30) days of such closing, of $2.5 million in
cash (the “Liquidity Bonus”); and
WHEREAS, Purchaser has requested that Employee receive, in connection with the
Merger and in lieu of the Liquidity Bonus, 1,900,000 restricted shares of Class
B Participating Preferred Stock of Employer, as the surviving corporation
resulting from the Merger (the “Stock”); and
WHEREAS, Employee has received indications from independent appraisers that the
appraised value of the Stock to be received in lieu of the Liquidity Bonus will
be approximately $950,000; and
WHEREAS, Employee intends to obtain a written appraisal of the value of the
Stock upon receipt thereof; and
WHEREAS, despite indications that the current value of the Stock is worth
substantially less than the Liquidity Bonus, Employee believes that the Merger
is in the best interest of Employer and its stockholders and is willing to
receive the Stock in lieu of the Liquidity Bonus upon closing of the Merger, in
order to enable the Merger to proceed;
agree as follows:
1. Condition to Amendment. The Amendment shall be and is hereby fully
conditioned upon the consummation of the Merger and shall be deemed effective
immediately prior to, but contingent upon, such consummation.
2. Going Private Transaction. Subsection 3.3 shall be and hereby is deleted in
its entirety, and the following is substituted therefor:
“3.3 Change in Control or Going Private Transaction. Upon the consummation of
the merger of Huevos Holdings, Inc. with and into Employer, as provided pursuant
to that certain Agreement and Plan of Merger by and among Huevos Holdings, Inc.,
and Employer, Frank A. Argenbright, Jr., Employee and Caledonia Investments plc,
dated as of March , 2003, which merger shall be deemed to be a “Going
Private Transaction” for purposes of this Agreement, Employee shall be entitled
to receive a distribution of 1,900,000 shares of Class B Participating Preferred
Stock of Employer, as the surviving corporation resulting from the Merger.
Employee shall promptly deliver to Employer cash equal to the amount of all
withholding tax obligations (whether federal, state or local) imposed on
Employer by reason of the receipt of Stock hereunder.”
3. Stock Options. Subsection 3.2(b)(iii) shall be and hereby is deleted in its
entirety. Section 4 shall be and hereby is deleted in its entirety, and the
“Section 4 Stock Options. [Intentionally left blank.]”
4. Effect of Amendment. As amended hereby, the Employment Agreement shall be and
2
IN WITNESS WHEREOF, Employee has hereunto set Employee’s hand and, pursuant to
the authorization from its Board of Directors, Employer has caused these
first above written.
EMPLOYEE
/s/ A. CLAYTON PERFALL
A. Clayton Perfall
By:
Name:
Title:
3 |
Name: Commission Implementing Regulation (EU) Noà 1072/2011 of 20à October 2011 entering a name in the register of protected designations of origin and protected geographical indications (Liquirizia di Calabria (PDO))
Type: Implementing Regulation
Subject Matter: consumption; regions of EU Member States; foodstuff; Europe; marketing
Date Published: nan
25.10.2011 EN Official Journal of the European Union L 278/1 COMMISSION IMPLEMENTING REGULATION (EU) No 1072/2011 of 20 October 2011 entering a name in the register of protected designations of origin and protected geographical indications (Liquirizia di Calabria (PDO)) THE EUROPEAN COMMISSION, Having regard to the Treaty on the Functioning of the European Union, Having regard to Council Regulation (EC) No 510/2006 of 20 March 2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs (1), and in particular the first subparagraph of Article 7(4) thereof, Whereas: (1) Pursuant to the first subparagraph of Article 6(2) of Regulation (EC) No 510/2006, Italys application to register the name Liquirizia di Calabria was published in the Official Journal of the European Union (2). (2) As no statement of objection under Article 7 of Regulation (EC) No 510/2006 has been received by the Commission, that name should therefore be entered in the register, HAS ADOPTED THIS REGULATION: Article 1 The name contained in the Annex to this Regulation is hereby entered in the register. Article 2 This Regulation shall enter into force on the 20th day following its publication in the Official Journal of the European Union. This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Brussels, 20 October 2011. For the Commission, On behalf of the President, Dacian CIOLOÃ Member of the Commission (1) OJ L 93, 31.3.2006, p. 12. (2) OJ C 321, 26.11.2010, p. 28. ANNEX Agricultural products intended for human consumption listed in Annex I to the Treaty: Class 1.8. Other products of Annex I to the Treaty (spices, etc.) Class 2.4. Bread, pastry, cakes, confectionery, biscuits and other bakers wares ITALY Liquirizia di Calabria (PDO) |
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 F 1934 Date of Report:July 13, 2010 Commission File Number: 000-53462 BUCKINGHAM EXPLORATION INC. (Exact Name of Registrant as Specified in Charter) NEVADA (state or other jurisdiction of incorporation or organization) Suite 418-831 Royal Gorge Blvd. Cañon City, CO 81212, USA (Address of principal executive offices) (604) 737 0203 Issuer’s telephone number 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)) Item 5.07 Submission of Matters to a Vote of Security Holders. On July 9, 2010, Buckingham Exploration Inc. (the “Company”) received stockholder approval to effect a one-for-four hundred reverse stock split of its issued and outstanding common stock, whereby each block of four hundred shares registered in the name of each stockholder on the applicable record date of the reverse stock split will be converted into one share of the Company’s common stock. The reverse stock split was approved on July 9, 2010 at special meeting of stockholders by the Company’s stockholders voting in person or through proxies solicited under a Definitive Proxy Statement of Schedule 14A, filed with the Securities and Exchange Commission on June 25, 2010. At the meeting 18,712,600 votes were cast, all of which voted in favor of the action. The reverse stock split shall take effect as soon as practicable upon receipt of FINRA approval of the transaction. The number of shares that the Company is authorized to issue will not change as a result of the common stock split and will remain at 80,000,000 common shares and 20,000,000 preferred shares all with a par value of $0.0001. Once the split is declared effective, the Company will issue an 8-K informing its shareholders of the change and procedures to secure new share certificates. SIGNATURES 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. Date: July 13, 2010 BUCKINGHAM EXPLORATION INC. (Registrant) By: /s/ C. Robin Relph C. Robin Relph President and Chief Executive Officer
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EX 99.28(e)(1) Distribution Agreement This Agreement is executed on January 1, 2012, by and between Curian Variable Series Trust (the “Trust”) and Jackson National Life Distributors LLC (“JNLD”) and, as provided in Section 11 below, shall become effective on the effective date of the registration statement of the Trust on Form N-1A (the “Registration Statement”), as amended from time to time under the Investment Company Act of 1940, as amended (the “1940 Act”). Whereas, the Trust is an open-end, management investment company registered under the 1940 Act; Whereas, JNLD is a broker-dealer registered with the Securities and Exchange Commission (“SEC”) and the Financial Industry Regulatory Authority (“FINRA”); Whereas, the Trust is authorized to issue shares of beneficial interest (“Shares”) in separate funds (the “Funds”), with each such Fund representing interests in a separate portfolio of securities and other assets; Whereas, pursuant to Rule 12b-1 under the 1940 Act, the Trust has adopted a Distribution Plan (the “Distribution Plan”), under which, subject to and in accordance with the terms thereof, the Trust may use assets of the Funds to reimburse certain distribution and related service expenses that are primarily intended to result in the sale of such Funds; Whereas, in furtherance of the purposes of the Distribution Plan, the Trust wishes to enter into a distribution agreement with JNLD with respect to the Funds listed in the current prospectus(es), which may from time to time be amended; Whereas, the Trust is required pursuant to Section 352 of the United Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (the “USA PATRIOT ACT”) and regulations of the Department of Treasury thereunder to develop and implement an anti-money laundering compliance program that includes a Customer Identification Program (“AML Program”) reasonably designed to prevent the Trust from being used to launder money or finance terrorist activities, including achieving and monitoring compliance with the applicable requirements of the Bank Secrecy Act of 1970, as amended (the “Bank Secrecy Act”), and implementing regulations of the Department of Treasury; Whereas, the Trust has no employees and does not itself conduct any operations relating to transactions with shareholders that could be the subject of an AML Program, and wishes to conduct such operations solely through its principal underwriter, JNLD; Whereas, JNLD is itself subject to the requirement under Section 352 of the USA PATRIOT ACT to develop and implement an AML Program, and compliance with applicable regulations of the Department of the Treasury, including but not limited to the Office of Foreign Assets Control (OFAC), and JNLD has provided copies of its written policy and procedures to the Trust; and Whereas, JNLD wishes to render the services hereunder to the Trust. Now Therefore, in consideration of the mutual promises and covenants hereinafter set forth, the parties hereto agree as follows: 1.Appointment and Acceptance.The Trust hereby appoints JNLD as distributor of the Shares of the Funds set forth on Schedule A on the terms and for the period set forth in this Agreement, and JNLD hereby accepts such appointment and agrees to render the services and undertake the duties set forth herein.Notwithstanding any other provision hereof, the Trust may terminate, suspend or withdraw the offering of Shares whenever, in its sole discretion, it deems such action to be desirable. 2.General Provisions. (a) In performing its duties as distributor, JNLD shall act in conformity with the Registration Statement of the Trust, and with any instructions received from the Board of Trustees of the Trust (the “Board of Trustees”), the requirements of the Securities Act of 1933, as amended (the “Securities Act”), the Securities Exchange Act of 1934, as amended (the “Exchange Act”), the 1940 Act, FINRA rules, and all other applicable Federal and State laws and regulations. (b) JNLD has appointed a Chief Compliance Officer and has and will operate in compliance with the applicable requirements of FINRA Conduct Rule 3013, and shall cooperate fully with the Trust and its designated officers and Chief Compliance Officer in fulfilling the Trust’s obligations under Rule 38a-1 under the 1940 Act.JNLD holds itself available to receive orders for the purchase or redemption of Shares and shall accept or reject orders to purchase or redeem such Shares on behalf of the Trust in accordance with the provisions of the Registration Statement, and shall transmit such orders as are so accepted to the Trust’s transfer agent promptly for processing. (c) JNLD shall not be obligated to sell any certain number of Shares. Except as provided in this Agreement, no commission or other fee will be paid to JNLD in connection with the sale of Shares. (d) Offering Price.Shares shall be offered for sale at a price equivalent to the net asset value per share of that series or as otherwise set forth in the Trust’s then current prospectus(es). The Trust receives 100% of such net asset value.On each business day on which the New York Stock Exchange is open for business, the Trust shall furnish JNLD with the net asset value of the Shares of each available series and class which shall be determined in accordance with the Trust’s then effective prospectus(es). All Shares shall be sold in the manner set forth in the Trust’s then effective prospectus(es) and statement of additional information (the “SAI”), and in compliance with applicable law. 3.JNLD Expenses.During the term of this Agreement, JNLD shall bear all its expenses incurred in complying with this Agreement, including the following expenses: (a) costs of sales presentations, preparation and delivery of advertising and sales literature, and any other marketing efforts by JNLD in connection with the distribution or sale of Shares; (b) any compensation paid to employees of JNLD in connection with the distribution or sale of the Shares; (c) JNLD may make payments to sub-agents or dealers from JNLD’s own resources, subject to the following conditions: (a) any such payments shall not create any obligation for or recourse against the Fund or any series, and (b) the terms and conditions of any such payments are consistent with the Trust’s prospectus(es) and applicable Federal and State securities laws and are disclosed in the Trust’s prospectus(es) or SAI to the extent such laws may require. (d) Notwithstanding anything in this Agreement to the contrary, JNLD may be reimbursed for expenses or may pay for expenses incurred under this Agreement to the extent permitted by the terms of the Distribution Plan. 4.Distribution Plan. (a) As used herein, the term “12b-1 Fee” refers to a charge against Fund assets, as authorized under the Distribution Plan, to finance distribution and related services of the Funds, as described in the Distribution Plan. (b) In accordance with the terms of the Distribution Plan, JNLD shall provide distribution and related services of the types contemplated under the Distribution Plan and reviewed from time to time by the Board of Trustees with respect to the Funds shown on Schedule A hereto, and may arrange for and compensate others for providing or assisting in providing such services, as described in the Distribution Plan.The Trust, on behalf of each Fund that is subject to the 12b-1 Fee as shown on Schedule A, shall reimburse the Distributor for distribution and related service expenses incurred in promoting the sale of the Fund’s Shares at a rate of up to the 12b-1 Fee rate per annum of the average daily net assets attributable to the Funds shown on Schedule A hereto.Each Fund shall bear exclusively its own costs of such reimbursements.Such distribution and related service expenses shall be calculated and accrued daily and paid within forty-five (45) days of the end of each fiscal quarter of the Fund.In no event shall such payments exceed JNLD's actual distribution and related service expenses for that quarter. 5.Reservation of Right Not to Sell.The Trust reserves the right to refuse at any time or times to sell any of its Shares for any reason deemed adequate by it. 6.Terms and Conditions of Sales.Shares shall be offered for sale only in those jurisdictions where they have been properly registered or are exempt from registration, and only to those groups of people which the Board may from time to time determine to be eligible to purchase such Shares. 7.Orders and Payment for Shares.Orders for Shares shall be directed to the Fund’s Transfer Agent, for acceptance on behalf of the Fund.At or prior to the time of delivery of any of the Trust’s Shares, JNLD shall pay or cause to be paid to the custodian of the Fund’s assets, for the Trust’s account, an amount in cash equal to the net asset value of such Shares.Sales of Shares shall be deemed to be made when and where accepted by the Fund’s Transfer Agent.The Fund’s custodian and Transfer Agent shall be identified in its prospectus(es). 8.Purchases for JNLD’s Own Account.JNLD shall not purchase Trust Shares for JNLD’s own account for purposes of resale to the public, but JNLD may purchase Shares for JNLD’s own investment account upon JNLD’s written assurance that the purchase is for investment purposes and that the Shares will not be resold except through redemption by the Trust. 9.Construction of Agreement. Terms or words used in the Agreement, which also occur in the Declaration of Trust or Bylaws of the Trust, shall have the same meaning herein as given to such terms or words in the Declaration of Trust or Bylaws of the Trust. 10.Conduct of Business.Other than the Trust’s currently effective prospectus(es), JNLD shall not issue any sales material or statements except literature or advertising which conforms to the requirements of Federal and State securities laws and regulations and which have been filed, where necessary, with the appropriate regulatory authorities. JNLD shall comply, and shall require each dealer with whom JNLD has entered into a dealer agreement with, to comply, with the applicable Federal and State laws and regulations where Trust Shares are offered, directly or indirectly, for sale, and shall conduct JNLD’s affairs with the Trust and with dealers, brokers or investors in accordance with FINRA Conduct Rules. JNLD shall assume responsibility for the review, and clearance, of all advertisements and sales literature on behalf of the Trust. 11.Effective Date and Termination of this Agreement.This Agreement shall become effective at the date and time that the Trust’s Registration Statement, reflecting the underwriting arrangements provided by this Agreement, shall become effective under the Securities Act, and shall, unless terminated as provided herein, continue in force for two (2) years from that date, and from year to year thereafter, provided that such continuance for each successive year is specifically approved in advance at least annually by either the Board of Trustees or by the vote of a majority (as defined in the 1940 Act) of the outstanding voting securities of the applicable Funds of the Trust and, in either event, by the vote of a majority of the Trustees of the Trust who are not parties to this Agreement or interested persons of any such party, cast in person at a meeting called for the purpose of voting upon such approval.As used in the preceding sentence, the words “interested persons” shall have the meaning set forth in Section 2(a)(19) of the 1940 Act.Sections 13 and 25 herein shall survive the termination of this Agreement. 12.Termination. This Agreement may be terminated at any time by the Trust or with respect to a particular Fund, such Fund, without the payment of any penalty by giving JNLD at least sixty (60) days’ previous written notice of such intention to terminate.This Agreement may be terminated by JNLD at any time by giving the Trust at least sixty (60) days’ previous written notice of such intention to terminate. 13.Assignment.This Agreement shall terminate automatically in the event of its assignment.As used in the preceding sentence, the word “assignment” shall have the meaning set forth in Section 2(a)(4) of the 1940 Act. 14.Notices.Notices of any kind to be given to JNLD by the Trust shall be in writing and shall be duly given if mailed, first class postage prepaid, or delivered to 7601 Technology Way, Denver, CO 80237 or at such other address or to such individual as shall be specified by JNLD to the Trust. Notices of any kind to be given to the Trust shall be in writing and shall be duly given if mailed, first class postage prepaid, or delivered to One Corporate Way, Lansing, Michigan 48951 or at such other address or to such individual as shall be specified by the Trust. 15.Confidentiality.Both parties agree to keep confidential all information (whether written or oral), ideas, techniques, and materials supplied by the other party, and shall not distribute the same to any other parties, at any time, except with the express written consent of the other party.Both parties agree to discontinue use of and destroy, where applicable, all information, ideas, techniques, and materials supplied by the other party upon termination of this Agreement.Both parties acknowledge that certain information made available to the other party may be deemed nonpublic personal information under the Gramm-Leach-Bliley Act or other federal and state privacy laws and the regulations promulgated thereunder (collectively, “Privacy Laws”).Both parties hereby agree: (a) not to disclose or use such information except as required to carry out its duties under this Agreement or as otherwise permitted by the Privacy Laws; (b) to establish and maintain procedures reasonably designed to insure the security and privacy of all such information; and (c) to cooperate with the other party and provide reasonable assistance in ensuring compliance of such Privacy Laws to the extent applicable to either party. 16.Non-Exclusivity.The services of JNLD to the Trust under this Agreement are not to be deemed exclusive, and JNLD shall be free to render similar services or other services to others so long as its services hereunder are not impaired thereby. 17.Reports.JNLD shall prepare reports for the Board of Trustees on a quarterly basis or more frequent basis showing such information as shall be reasonably requested by the Board of Trustees from time to time. 18.Independent Contractor.JNLD shall for all purposes herein provided be deemed to be an independent contractor and, unless otherwise expressly provided or authorized, shall have no authority to act for or represent the Trust in any way other than as specifically set forth herein.It is understood and agreed that JNLD, by separate agreement with the Trust, may also serve the Trust in other capacities. 19.Counterparts.This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original. 20.Governing Law.This Agreement shall be governed by the laws of Michigan, provided that nothing herein shall be construed in a manner inconsistent with the 1940 Act, the Exchange Act, the Securities Act, or any rule or order of the SEC or any national or regional self-regulatory organization, such as FINRA. 21.Severability.If any provision of this Agreement shall be held or made invalid by a court decision, statute, rule or otherwise, the remainder of this Agreement shall not be affected thereby and, to this extent, the provisions of this Agreement shall be deemed to be severable. 22.AML Program.JNLD agrees to implement and operate an AML Program on behalf of the Trust (“Trust AML Program”) as such Program pertains to shareholder transations effected through services provided by JNLD.JNLD agrees that the Trust AML Program will be reasonably designed to prevent the Trust from being used for money laundering or the financing of terrorist activities and to achieve and monitor compliance with the applicable requirements of the Bank Secrecy Act and the implementing regulations of the Department of Treasury, including a Customer Identification Program. JNLD represents that in addition to its obligations to the Trust pursuant to this Agreement it has established and will maintain a written AML Program as required by FINRA Conduct Rule 3011. 23.Records.JNLD agrees to maintain and preserve reasonable records pertaining to the implementation and operation of the Trust AML Program.JNLD consents, upon reasonable notice, (a) to make information and records regarding the operation of the Trust AML Program available to the SEC for review and (b) to make the Trust AML Program available for inspection by the SEC and to any other regulatory agency with jurisdiction over such programs. 24.Miscellaneous.As used herein, the terms “net asset value,” “offering price,” “investment company,” “open-end investment company,” “principal underwriter,” “interested person,” and “majority of the outstanding voting securities” shall have the meanings set forth in the Securities Act or the 1940 Act and the Rules and Regulations thereunder and the term “assignment” shall have the meaning as set forth in the 1940 Act and the Rules and Regulations thereunder. A copy of the Declaration of Trust of the Trust is on file with the Secretary of the Commonwealth of Massachusetts, and notice is hereby given that this instrument is executed on behalf of the Trustees as Trustees, and is not binding upon any of the Trustees, officers, or shareholders of the Trust individually but binding only upon the assets and property of the Trust. 25.Indemnification.JNLD, its officers, directors, employees, agents or affiliates will not be subject to any liability to Trust or its trustees, officers, employees, agents or affiliates for any error of judgment or mistake of law or for any loss suffered by the Trust, any shareholder of the Trust, either in connection with the performance of JNLD’s duties under this Agreement or its failure to perform due to events beyond the reasonable control of JNLD or its agents, except for a loss resulting from JNLD’s willful misfeasance, or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement. 26.Construction of Agreement. (a) No provision of this Agreement is intended to or shall be construed as protecting JNLD against any liability to the Trust or to the Trust's security holders to which JNLD would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties under this Agreement. (b) Terms or words used in the Agreement, which also occur in the Declaration of Trust or Bylaws of the Trust, shall have the same meaning herein as given to such terms or words in the Declaration of Trust or Bylaws of the Trust. In Witness Whereof, the parties hereto have caused this instrument to be executed by their officers designated below as of the day and year first above written. Attest: Curian Variable Series Trust By: /s/ Kristen K. Leeman By: /s/ Kelly L. Crosser Kristen K. Leeman Name: Kelly L. Crosser Sr. Paralegal Title: Assistant Secretary Attest: Jackson National Life Distributors LLC By: /s/ Catherine Lischer By: /s/ J. Douglas Townsend Name: J. Douglas Townsend Title: EVP Operations Schedule A Fund Maximum 12b-1 Fee Curian Guidance – Maximize Income Fund None Curian Guidance – Balanced Income Fund None Curian Guidance – Rising Income Fund None Curian Guidance – Moderate Growth Fund None Curian Guidance – Maximum Growth Fund None Curian Guidance – Tactical Moderate Growth Fund None Curian Guidance – Tactical Maximum Growth Fund None Curian Guidance – Institutional Alt 65 Fund None Curian Guidance – Institutional Alt 100 Fund None Curian Tactical Advantage 35 Fund .25% Curian Tactical Advantage 60 Fund .25% Curian Tactical Advantage 75 Fund .25% Curian Dynamic Risk Advantage – Diversified Fund .25% Curian Dynamic Risk Advantage – Aggressive Fund .25% Curian Dynamic Risk Advantage – Income Fund .25% Curian/American Funds® Growth Fund .25% Curian/AQR Risk Parity Fund .25% Curian/Epoch Global Shareholder Yield Fund .25% Curian/FAMCO Flex Core Covered Call Fund .25% Curian/Franklin Templeton Natural Resources Fund .25% Curian/Invesco Balanced-Risk Commodities Fund .25% Curian/Nicholas Convertible Arbitrage Fund .25% Curian/PIMCO Credit Income Fund .25% Curian/PineBridge Merger Arbitrage Fund .25% Curian/The Boston Company Equity Income Fund .25% Curian/The Boston Company Multi-Alpha Market Neutral Equity Fund .25%
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FORM 8-K SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Act of 1934 Date of Report (Date of earliest event reported) January 20, 2015 SEYCHELLE ENVIRONMENTAL TECHNOLOGIES, INC. (Exact name of Registrant as specified in its charter) Nevada 0-29373 33-0836954 (State or other jurisdiction of incorporation or organization) (Commission File Number) (I.R.S. Employer Identification No.) 32963 Calle Perfecto San Juan Capistrano, California 92675 (Address of principal executive offices and Zip Code) (949) 234-1999 (Registrant's telephone number including area code) 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)) FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Act of 1934 References in this document to "us," "we," or "Company" refer to Seychelle Environmental Technologies, Inc., a Nevada corporation and our two wholly-owned subsidiaries, Seychelle Water Technologies, Inc. and Fill 2 Pure International, Inc., also both Nevada corporations. Item 7.01 Regulation FD Disclosure On January 20, 2015, we announced information concerning our share buyback program. In accordance with General Instruction B.2. of Form 8-K, the information set forth in this Item 7.01 (including Exhibit 99.1) is furnished pursuant to Item 7.01 and shall not be deemed "filed" for purposes of Section 18 of the Securities Exchange Act of 1934, as amended ("the Exchange Act"), nor shall it be deemed incorporated by reference in any filing under the Securities Act of 1933, as amended, or in the Exchange Act except as may be expressly set forth by specific reference in such a filing. Item 8.01 Other Events. We believe that our common shares are currently undervalued. As a result, our Board of Directors has adopted, effective January 20, 2015, a common share buy-back program to reduce the number of outstanding shares authorizing our management to enter the market to re-purchase up to 1,000,000 of our common shares at such times and market price or prices as management may deem appropriate. This common share buy-back program will be reviewed by our Board on at least a quarterly basis. Item 9.01 Financial Statements and Exhibits. (c) Exhibits. Exhibit Number Description News release dated January 20, 2015 concerning our share buyback program. SIGNATURES 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. SEYCHELLE ENVIRONMENTAL TECHNOLOGIES, INC. Date:January 20, 2015 By: /s/ Dick Parsons Dick Parsons Chief Executive Officer
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Title: Hurt myself on the job but can’t prove it
Question:So I got a new job recently and its good pay (for my area) it’s laborer work and is 12 hour shifts Saturday-Monday. Well after last weekend working my foot just started killing me, so I gave it the week to see if it subsided and now I’m on my second week here and it hurts like hell to walk on. I haven’t ever had an issue like this (I’ve worked at this place before but left do to circumstances, nothing medical). Just worried if I say anything I’ll either lose my job or have to take a couple months off without pay. Anyone have any advice?
Edit: I went to my personal doctor during the week and he said it could be a stress fracture but I didn’t want to get X-rays done just yet so he gave me steroids for inflammation. They haven’t helped.
Answer #1: I don't believe you really have any recourse at this point. You've stated that you're not sure how you did it. You went to see your doctor and you've reported nothing to your place of employment. |
EXHIBIT 10.4 SECURED PROMISSORY NOTE Maker: LC Luxuries Limited, Holder:Keith Hoerling a Nevada corporation Principal Amount: $900,000.00 Rate:0.35% Date: November 19, 2010 Promise to Pay: FOR VALUE RECEIVED, LC Luxuries Limited, a Nevada corporation(“Maker”), hereby promises to pay on or before January 10, 2012 (the “Maturity Date”) to the order of Keith Hoerling (“Holder”), at 2183 Fairview Rd, Ste 101, Costa Mesa, California, or at such other place or to such other party as the Holder may from time to time designate in writing, the principal sum of Nine Hundred Thousand Dollars and no cents ($900,000.00), together with accrued interest on the unpaid principal from time to time outstanding, as set forth in this Secured Promissory Note (this “Note”) until fully paid. This Note is being issued in connection with that certain Agreement and Plan of Reorganization and Merger by and among Weedmaps, LLC, a Nevada limited liability company, and its three members, namely Justin Hartfield, Keith Hoerling, and Douglas Francis (collectively, the “Members”), on the one hand, and Maker and LC Merger Corp., a Nevada corporation and a wholly owned subsidiary of Maker (“LC Merger Sub”), on the other hand, dated November 19, 2010 (the “Merger Agreement”). Payment.The principal, together with all accrued interest on this Note shall be payable on the Maturity Date (the “Note Payment”).ThisNote shall be payable by certified or bank cashier’s check or by wire transfer of immediately available funds to an account designated by Holder in writing. Unless otherwise agreed or required by applicable law, all payments will be applied first to any charges, costs, expenses or late fees then owed to Holder, next to unpaid accrued interest, with any balance applied to principal. Fixed Interest Rate. Commencing the date hereof, this Note shall accrue interest on the unpaid principal from time to time outstanding at a rate of 0.35% per annum. Accrued interest shall be due and payable concurrently with the Note Payment.In addition, accrued interest shall be due and payable upon any prepayment (to the extent thereof), at the maturity hereof (whether by acceleration or otherwise) and, thereafter, upon demand. Prepayment.Prepayment of the principal and all accrued interest on this Note shall be allowed with the consent of Holder, and any such prepayment shall be applied first to interest accrued but unpaid to such date on the outstanding principal balance hereof immediately preceding such prepayment and then to reduction of the principal balance hereof. Events of Default.Holder may, at its option, accelerate the maturity of this Note upon the occurrence of any of the following events (any one of which shall be deemed an “Event of Default”), in which event the unpaid balance of this Note, together with accrued interest, shall become immediately due and payable without demand or notice: 1 1. The failure by Maker to pay the Note Payment on or before the Maturity Date; 2. The material breach or failure by Maker to perform any covenant or undertaking of Maker in this Note or under the Merger Agreement, and (other than failure by Maker to pay the Note Payment on or before the Maturity Date) each of such breach or failure to perform is not cured within ten (10) days following the receipt by Maker of written notice thereof by Holder; or 3. In the event that Maker shall (A) apply for or consent to the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of all or substantially all of its property, (B) make a general assignment for the benefit of creditors, (C) commence a voluntary case under the federal bankruptcy laws (as now or hereafter in effect), (D)be adjudicated as bankrupt or insolvent, (E) file a petition or take advantage of any other law providing for the relief of debtors, or (F)acquiesce to, or fail to have dismissed within forty-five (45) days, any petition filed against it in any involuntary case under such bankruptcy law. Security.This Note is secured by the Collateral, as that term is defined in that certain Security Agreement, of an even date herewith and attached to the Merger Agreement as Exhibit C thereto, by and between Maker and LC Merger Sub, on the one hand, andthe Members and Justin Hartfield as the “Collateral Agent”, on the other hand (the “Security”). Waivers and General Provisions.Maker expressly waives presentment, protest and demand, notice of protest, demand, intention to accelerate the maturity of this Note and dishonor and nonpayment of this Note, and all other notices of any kind, and expressly agrees that this Note, or any payment hereunder, may be extended from time to time without in any way affecting the liability of Maker and endorsers hereof. No single or partial exercise of any power hereunder shall preclude other or further exercise thereof or the exercise of any other power.No delay or omission on the part of the Holder hereof in exercising any right hereunder shall operate as a waiver of such right or of any other right under this Note. Attorneys’ Fees.If an action shall be brought on this Note, the losing party shall pay immediately upon demand all costs and expenses of the prevailing party, including reasonable attorneys’ fees.The obligations set forth in this paragraph are separate and several, shall survive the discharge of this Note and the merger of this Note into any judgment on this Note. 2 Severability.Every provision of this Note is intended to be severable.In the event any term or provision hereof is declared by a court of competent jurisdiction to be illegal or invalid for any reason whatsoever, such illegal or invalid term or provision shall not affect the balance of the terms and provisions hereof, which terms and provisions shall remain binding and enforceable. Successors and Assigns.The provisions contained herein shall be binding upon, and inure to the benefit of, the heirs and successors of the parties hereto.This Note may not be assigned by either party without the prior written consent of the other party, which consent shall not be reasonably withheld. Release.After the payment of all sums for which the Maker is obligated under this Note, the Holder shall deliver, or mail to the Maker at his or her last known address, such one or more good and sufficient instruments as may be necessary to acknowledge payment in full and to release the Security. Governing Law.This Note, and every other agreement entered into or document signed in connection with this Note, shall be governed by and construed in accordance with the laws of the State of California. IN WITNESS WHEREOF, the undersigned has caused this Secured Promissory Note to be executed at Costa Mesa, California as of the date first set forth above. “Maker” LC Luxuries Limited, a Nevada corporation /s/James Pakulis By: James Pakulis, CEO (print) 3
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Filed Pursuant to Rule 433 Registration No. 333-136432 March 4, PRICING TERM SHEET Underwriting Agreement dated March 4, 2009 Series R Notes Issuer: Appalachian Power Company Security: 7.95% Senior Notes, Series R, due 2020 Principal Amount: $350,000,000 Maturity: January 15, 2020 Coupon: 7.95% Interest Payment Dates: January 15 and July 15 of each year First Interest Payment Date: July 15, 2009 Treasury Benchmark: 2.75% due February 15, 2019 Treasury Price: 97-23+ Treasury Yield: 3.015% Reoffer Spread: T+500 basis points Yield to Maturity: 8.015% Price to Public: 99.551% Redemption Terms: Make-whole call: At any time at a discount rate of the Treasury Rate plus 50 basis points Joint Book-Running Managers: Goldman, Sachs & Co. Greenwich Capital Markets, Inc. Wachovia Capital Markets, LLC Settlement Date: March 9, 2009 (T+3) CUSIP: 037735CP0 Ratings: Baa2 (stable outlook) by Moody’s Investors Service, Inc. BBB (stable outlook) by Standard & Poor’s Ratings Services BBB+ (negative outlook) by Fitch Ratings Ltd. Note: A securities rating is not a recommendation to buy, sell or hold securities and may be subject to revision or withdrawal at any time. The issuer has filed a registration statement (including a prospectus) with the SEC for the offering to which this communication relates.Before you invest, you should read the prospectus in that registration statement 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 issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus if you request it by calling Goldman, Sachs & Co. toll free at 1-866-471-2526, Greenwich Capital Markets, Inc. toll free at 1-866-884-2071, or Wachovia Capital Markets, LLC toll free at
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Content Schedule
1.
This Content Schedule incorporates the terms of the Master Reseller Agreement
(the "Master Agreement") between Vodafone Group Services Limited ("VGSL"),
registered in England (registered number 3802001), having its registered office
at Vodafone House, The Connection, Newbury, Berkshire RG14 2FN, United Kingdom
and the Content Provider (as defined below) dated 17 January 2005.
2.
When signed by VGSL and the Content Provider this Content Schedule is a standing
offer by the Content Provider of the applicable Content (as defined below) to
all Vodafone Group Companies on the terms of the Master Agreement and this
Content Schedule:
3.
A Vodafone Group Company may accept the Standing Offer by completing and signing
the Contract Acceptance Notice and following the procedure set out in the Master
Agreement.
1. Content Provider
Waat Media Corporation; United States of America; Company reg. 2512380;
Address: 18226 Ventura Blvd. Suite 102, Tarzana, CA 91356.
2. Content
The Company will supply the following video Content to Vodafone Omnitel N.V. in
accordance with agreement as subject to the Vodafone Omnitel N.V. self
regulatory code.
52 Erotic videos
Real Media (GPRS) max 90 seconds 3GP - profilo low (GPRS) max 90 seconds
3GP - profilo high (Umts) both streaming/download max 150 seconds. max size 2, 8
Mega
naming convention:
videonumber_contentprovider_length_description_description_encoding.filetype
ES:
10001_p_90_jenny_blonde realmedia.rm (real media 90 seconds)
10001_p_90_jenny_blonde_low.3gp (profilo low 90 seconds)
10001_p_30_jenny_blonde_high.3gp (profilo high 30 seconds)
NB
Each video must be in three format and must have the naming convention as
indicated up
52 Erotic video MMS:
max 30 seconds
52 Erotic MMS (slide show)
Games
Titles
· Vivid EroTrix
· Vivid Bombs 'N Boobs
· Peach Babe Quest XXX
· Playgirl Blox
Contents
For each title we need:
· one title sreenshot higt resolution, gif format;
· one title sreenshot higt resolution 200x200, gif or tif format;
· coywryte
and for each title and each devices we need:
· File jad;
· File jar,
· One in game screenshot, git format;
3. Content Provider Branding Guidelines
Waat Media will provide branded content per VGSL's guidelines.
4. Marketing Materials
Waat Media will provide marketing materials as requested by VGSL and local
operators.
5. Content Provider Revenue
Content Provider Revenue shall be [INFORMATION OMITTED AND FILED SEPARATELY WITH
THE COMMISSION UNDER RULE 24B-2] of Net Revenue, less all the Deductions. It is
understood that Deductions (if any) shall be deducted from the Content Provider
1
Revenue actually paid to the Content Provider in accordance with Clause 10.2.
The Content Provider and VGSL shall seek to agree reasonable commercial models
for 'promotional' content and bundled content as and when required.
6. Content Protection
The Content Provider shall be responsible for protecting the Content.
7. Hosting
The Content Provider will provide the Content directly to Vodafone Omnitel NV
for hosting by Vodafone Omnitel NV.
8. Languages
All languages as may be reasonably requested by VGSL from time to time.
9. Territories
Italy only
10. Mobile Devices (to include but not limited to the following)
Category
Handset
UMTS
Motorola V1050
UMTS
Sharp 902
UMTS
Samsung Z105
UMTS
Samsung Z107
UMTS
Sony Ericsson Z1010
UMTS
Sony Ericsson V800
UMTS
Motorola V980
UMTS
Sharp 902
UMTS
Motorola E1000
UMTS
Nokia 6630
VL Advanced
Sharp TQ-GX20
VL Advanced
Nokia 6600
VL Advanced
Motorola V525m
VL Advanced
Sharp TQ-GX10 e GX10i
VL Advanced
SonyEricsson T610
VL Advanced
Panasonic X60
VL Advanced
Panasonic X70
VL Advanced
Sharp TQ-GX30
VL Advanced
Panasonic GD87a
VL Advanced
Nokia 7650
VL Advanced
Nokia 3200
VL Advanced
Nokia 3650
VL Advanced
Nokia 7250 e 7250i
VL Advanced
Panasonic x701
VL Advanced
Samsung SGH E700 E710
VL Advanced
Samsung SGH E810i
VL Advanced
Motorola V600
VL Advanced
Nokia 3100
VL Advanced
Nokia 6230
VL Basic
SonyEricsson T68i
VL Basic
Motorola C550
VL Advanced
SonyEricsson Z600
VL Basic
Motorola T7201
VL Basic
Motorola C350
VL Advanced
Nokia 7610
VL Basic
Panasonic G60
2
VL Basic
Non certificati
VL Advanced
Sagem my-V55
VL Basic
Siemens C62
Alcatel OT735
Sagem CX 2
Alcatel - OT531
Blackberry
VL Advanced
Panasonic X400
VL Advanced
Samsung SGH P400
VL Advanced
Panasonic G50
VL Advanced
Nokia 6220
UMTS
LG 8110
UMTS
LG 8120
N9500
VL Advanced
Nokia 3660
VL Advanced
Samsung SGH E310
VL Basic
LG G5400
VL Basic
SonyEricson T310
VL Advanced
Samsung SGH V200
VL Advanced
Siemens S55
VL Basic
Panasonic GD67
VL Advanced
Siemens MC60
VL Advanced
Panasonic GD87
VL Advanced
Alcatel OT565
VL Advanced
Mitsubishi Trium Eclipse
VL Advanced
Samsung E100
VL Advanced
Nokia 6820
VL Advanced
Siemens Hera
VL Basic
Nokia 6650
VL Advanced
Samsung SGH X100
VL Advanced
Sagem my-G5
VL Advanced
Siemens SXI
VL Basic
Telit G80
VL Basic
Philips Fisio 822
VL Basic
Philips Fisio 825
VL Advanced
Nokia 7600
VL Advanced
Siemens SL55
VL Advanced
Siemens M55
VL Basic
Ericsson T68
VL Advanced
Samsung SGH Z100
VL Basic
BlackBerry 7230
VL Advanced
Siemens A60
VL Advanced
Sharp GX15
VL Advanced
Nokia 3300
VL Advanced
Sagem my-X5
VL Advanced
Motorola V525
VL Advanced
SonyEricsson Amy
VL Advanced
Nokia7200
VL Advanced
PanasonicG51
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VL Basic
EricssonT68
VL Basic
SamsungSGH-S500
VL Basic
SamsungSGH-P100
VL Advanced
AlcatelOneTouch 535
11. Format
Vodafone Omnitel NV shall deliver the Content in the format described in
attached document Exhibit 1.
12. Purchase Options
As agreed from time to time.
13. VGSL Certification
Unless VGSL gives written notice otherwise, all Content requires certification
by a QA Company.
14. Delivery Timetables
The company will make available to Vodafone Omnitel N.V. 52 video clips, 52
video mms, 52 mms, games from April 1st 2005 in the formats indicated on Exhibit
1. (Other Formats if necessary will be made available at a mutually agreed upon
time).
15. Relevant Contacts
The Content Provider:
Technical - Camill Sayadeh
Tel: +1818 708 9995
Mob: +1 818 723 2488
Fax: +1818 708 0598
camill@waatmedia.com
Commercial - Adi Mcabian
Mob: +1818 644 1300
Fax: +1 818 708 0598
adi@waatmedia.com
Financial - Lena Barseghian
Tel: +1 818 708 9995
Mob: +1 818 687 1377
lena@waatmedia.com
VGSL:
Commercial - Andrew Stalbow
Tel: +44 207 212 0591
Mob: +44 7717 618 919
Fax: +44 207 212 0701
E-mail: Andrew.stalbow@vodafone.com
16. Tax Residence
The same country as the registered address of the Content Provider set out
above.
17. Content Provider's bank account details for electronic transfer payments
Payment by VGSL to the Content Provider shall be made by BACS to the following
bank account
Bank: EAST WEST BANK, 18321 Ventura Blvd. Tarzana, CA 91356
Account Name: The Waat Corporation
Account No.: 8270-2648
ABA# 322070381
The currency of this Agreement shall be in Euros. All financial reports,
statements, invoices, charges and payments made by one Party to the other shall
be in Euros.
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18. Special Conditions
The Content Provider will comply with all VGSL/Vodafone content standards,
guidelines and policies provided to the Content Provider from time to time. The
Content Provider shall also provide reasonable assistance to help create such
standards and guidelines from time to time.
The Commencement Date for this Content Schedule shall be 1 April 2005.
The Contents can be distributed/supplied through the following technical
channels:
· the WAP portal
· the VL! Portal
· the WEB portal
· the VO download platform
· the VO streaming platform
· the VO portal
· PDA
· UMTS
· AREA BUSINESS
· BLACKBERRY
Signed on behalf of VGSL:
Signed on behalf of Content Provider:
/s/ Graeme Ferguson
VGSL authorized signatory
/s/ Camill Sayadeh
Content Provider authorized signatory
Print name: Graeme Ferguson
Print name: Camill Sayadeh
Position: Director of Global Content Development
Position: Head of Operations
Date signed: 08/04/2005
Date signed: 29/03/05
*WE HAVE REQUESTED CONFIDENTIAL TREATMENT OF CERTAIN PROVISIONS CONTAINED IN
THIS EXHIBIT. THE COPY FILED AS AN EXHIBIT OMITS THE INFORMATION SUBJECT TO THE
CONFIDENTIALITY REQUEST.*
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Exhibit 1
Format
Real Media (GPRS)
File format
Real Media
Video codec
Real Video 8
Audio codec
Real Audio 8 Voice (G2,RA8)
Bitrate control
Constant bitrate
MaxTarget bitrate
30 Kbps
Video bitrate
23.6 Kbps
Audio bitrate
6.4 Kbps
Encoded Frame rate
10 fps
Exporting mode
Two pass encoding
Frame size
176x144 (QCIF)
3GP - profilo low (GPRS)
Encoder
Helix Producer Plus 10
Container
3GP
Video Codec
MPEG4
Bitrate control
Constant bitrate
Total bitrate
30 Kbps
Video bitrate
21 Kbps
Audio Codec
AMR-NR
Audio bitrate
7950 bps
FpS
12.5
Key frame
5
Hinting Type
Streaming optimized for server
Exporting mode
Two pass encoding
Frame size
176x144 (QCIF)
3GP - profilo high (Umts) both streaming/download
Encoder
Helix Producer Plus 10
Container
3GP
Video Codec
MPEG4
Bitrate control
Constant bitrate
Total bitrate
110 Kbps
Video bitrate
100 Kbps
Audio Codec
AMR-NR
Audio bitrate
10200 bps
FpS
12.5
Key frame
5
Hinting Type
Streaming optimized for server
Exporting mode
Two pass encoding
Max file size
950 KB (very important, be careful)
Frame size
176x144 (QCIF)
The parameters indicated above could be subjected to changes of the values so it
will be retain valid until a new communication of VO.
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