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JIYA ACQUISITION CORP. 780 Third Avenue November 18, 2020 Jiya Holding Company LLC 638 Middlefield Road Palo Alto, CA 94301 Re: Administrative Services Agreement Ladies and Gentlemen: This letter agreement (this “Agreement”) by and among Jiya Acquisition Corp. (the “Company”) and Jiya Holding Company LLC (the “Sponsor”), dated as of the date hereof, will confirm our agreement that, commencing on the date the securities of the Company are first listed on The Nasdaq Capital Market (the “Listing Date”), pursuant to a Registration Statement on Form S-1 and prospectus filed with the U.S. Securities and Exchange Commission (the “Registration Statement”) and continuing until the earlier of the consummation by the Company of an initial business combination or the Company’s liquidation (in each case as described in the Registration Statement) (such earlier date hereinafter referred to as the “Termination Date”): 1. The Sponsor shall make available, or cause to be made available, to the Company, at 638 Middlefield Road, Palo Alto, CA 94301 (or any successor location), office space and secretarial and administrative services as may be reasonably required by the Company. In exchange therefor, the Company shall pay the Sponsor $10,000 per month on the Listing Date and continuing monthly thereafter until the Termination Date; and 2. The Sponsor hereby irrevocably waives any and all right, title, interest, causes of action and claims of any kind as a result of, or arising out of, this Agreement (each, a “Claim”) in or to, and any and all right to seek payment of any amounts due to it out of, the trust account established for the benefit of the public stockholders of the Company and into which substantially all of the proceeds of the Company’s initial public offering will be deposited (the “Trust Account”), and hereby irrevocably waives any Claim it may have in the future as a result of, or arising out of, this Agreement, which Claim would reduce, encumber or otherwise adversely affect the Trust Account or any monies or other assets in the Trust Account, and further agrees not to seek recourse, reimbursement, payment or satisfaction of any Claim against the Trust Account or any monies or other assets in the Trust Account for any reason whatsoever. This Agreement constitutes the entire agreement and understanding of the parties hereto in respect of its subject matter and supersedes all prior understandings, agreements, or representations by or among the parties hereto, written or oral, to the extent they relate in any way to the subject matter hereof or the transactions contemplated hereby. This Agreement may not be amended, modified or waived as to any particular provision, except by a written instrument executed by the parties hereto. No party hereto may assign either this Agreement or any of its rights, interests, or obligations hereunder without the prior written approval of the other party. Any purported assignment in violation of this paragraph shall be void and ineffectual and shall not operate to transfer or assign any interest or title to the purported assignee. This Agreement constitutes the entire relationship of the parties hereto, and any litigation between the parties (whether grounded in contract, tort, statute, law or equity) shall be governed by, construed in accordance with, and interpreted pursuant to the laws of the State of New York. [Signature Page Follows] 2 Very truly yours, JIYA ACQUISITION CORP. By: /s/ Rekha Hemrajani Name: Rekha Hemrajani Title: Chief Executive Officer AGREED AND ACCEPTED BY: JIYA HOLDING COMPANY LLC By: /s/ Richard Van Doren Name: Richard Van Doren Title: Chief Financial Officer [Signature Page to Administrative Services Agreement] 3
Name: Commission Regulation (EEC) No 1722/93 of 30 June 1993 laying down detailed rules for the application of Council Regulations (EEC) No 1766/92 and (EEC) No 1418/76 concerning production refunds in the cereals and rice sectors respectively Type: Regulation Subject Matter: agricultural structures and production; plant product; foodstuff Date Published: nan Avis juridique important\|31993R1722Commission Regulation (EEC) No 1722/93 of 30 June 1993 laying down detailed rules for the application of Council Regulations (EEC) No 1766/92 and (EEC) No 1418/76 concerning production refunds in the cereals and rice sectors respectively Official Journal L 159 , 01/07/1993 P. 0112 - 0122 Finnish special edition: Chapter 3 Volume 50 P. 0151 Swedish special edition: Chapter 3 Volume 50 P. 0151 COMMISSION REGULATION (EEC) No 1722/93 of 30 June 1993 laying down detailed rules for the application of Council Regulations (EEC) No 1766/82 and (EEC) No 1418/76 concerning production refunds in the cereals and rice sectors respectivelyTHE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Economic Community, Having regard to Council Regulation (EEC) No 1766/92 of 30 June 1992 on the common organization of the market in cereals (1), and in particular Article 7 thereof, Having regard to Council Regulation (EEC) No 1418/76 of 21 June 1976 on the common organization of the market in rice (2), as last amended by Regulation (EEC) No 1544/93 (3), and in particular Article 9 thereof, Whereas, in view of the special situation of the market in starch, and particularly the need to keep prices competitive in relation to starch produced in third countries and imported as goods in respect of which the import arrangements do not provide sufficient protection for Community producers, Regulations (EEC) No 1766/92 and (EEC) No 1418/76 provide for the grant of a production refund to enable the user industries concerned to have access to starch and certain derivatives at a lower price than that which would result from applying the rules of the common organization of the market in the products in question; Whereas, pursuant to Article 7 of Regulation (EEC) No 1766/92 and Article 9 of Regulation (EEC) No 1418/76, it is necessary to adopt detailed rules for the grant of production refunds, including rules for control and payment, so that he same rules are applied in all Member States; Whereas the abovementioned Regulations provide for a list to be drawn up of of products the manufacture of which uses starch giving rise to entitlement to the refund; whereas such a list must be capable of amendment on the basis of fixed criteria; Whereas, to ensure that control measures are effective, provision should be made for beneficiaries of the refund to be approved in advance by the Member States in whose territory the abovementioned products are manufactured; Whereas it is necessary to define how the production refund is to be calculated how often it is to be fixed; whereas the most satisfactory calculation method is at present based on the difference between the intervention price for cereals and the price used to calculate the import levy; whereas, for reasons of stability, the production refund should as a general rule be fixed every month; whereas, as a means of checking that the production refund is of the correct value, the prices of maize and wheat should be monitored on the world and Community markets; Whereas production refunds are to be paid for the use of starch and certain derived products in the manufacture of certain goods; whereas detailed information is required to facilitate the appropriate control and payment of the production refunds to applicants; whereas the competent authority in the Member State concerned should be empowered to require applicants to supply any information and allow any checks or inspections necessary to effect such controls; Whereas the manufacturer of the product may not necessarily use basic starch; whereas it is therefore necessary to draw up a list of certain products derived from starch the use of which will give the manufacturer the right to receive the refund; Whereas the origin of the raw materials of the starch used in the manufacture of products eligible for production refunds must be specified; Whereas the special characteristics of esterified or etherified starch could lead to certain speculative processing operations designed to receive the production refund more than once; whereas, so as to prevent such speculation, measures are needed to ensure that esterified or etherified starch is not reprocessed into a raw material the use of which gives the right to apply for a refund; Whereas the production refund should not be paid until processing has taken place; whereas, once processing has taken place, payment should be made within five months following verification by the competent authority that the starch has been processed; whereas, however, it should be possible for the manufacturer to receive an advance before completion of the controls; Whereas the agricultural conversion rate for the refund applicable in national currency should be specified, without prejudice to the possibility of advance fixing in accordance with Articles 13 to 17 of Commission Regulation (EEC) No 1068/93 (4); Whereas Commission Regulation (EEC) No 2220/85 of 22 July 1985 laying down common detailed rules for the application of the system of securities for agricultural products (5), as last amended by Regulation (EEC) No 3745/89 (6), applies to the arrangements provided for in this Regulation; whereas, therefore, the primary requirements of the obligations incumbent on manufacturers and guaranteed by the lodging of a security should be defined; Whereas this Regulation incoporates, whilst adapting them, the provisions of Commission Regulation (EEC) No 2169/86 (7), as last amended by Regulation (EEC) No 1398/91 (8), whereas that Regulation should therefore be repealed; Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Cereals, HAS ADOPTED THIS REGULATION: Article 1 1. A production refund (hereinafter called 'refund') may be granted to natural or legal persons using starch extracted from wheat, maize, rice, broken rice or potatoes, or certain derived products, in the manufacture of the goods listed in Annex I. 2. The list referred to in paragraph 1 may be amended to take account of the level of competition with third countries, and the degree of protection against such competition afforded by the mechanisms of the common agricultural policy, the Commission Customs Tariff or otherwise. 3. At the time of the decision to grant a refund, other factors shall be taken into account, in particular: - the progress made in the technology of starch manufacture and utilization, - the degree to which starch is incorporated in the final product and/or the relative value of starch in the final product and/or the importance of the product as an outlet for starch, in the light of competition with other products. 4. The grant of a refund for a product may not cause distortion in the conditions of competition with other products which are not eligible for such refunds. 5. Should it be estabished that distortion has occurred following the grant of a refund, that refund shall: - be abolished, or - adjusted, in so far as is necessary to eliminate the distortion in the conditions of competition. 6. Starches imported into the Community under an import scheme which gives rise to a levy reduction may not benefit from a production refund. 7. The decisions provided for in this Article shall be adopted by the Commission in accordance with the procedure laid down in Article 23 of Regulation (EEC) No 1766/92 and Article 27 of Regulation (EEC) No 1418/76, as applicable. Article 2 For the purposes of this Regulation the following definitions shall apply: - 'starch' means basic starch or a product derived from starch as listed in Annex II to this Regulation, - 'approved products' means any of the products listed in Annex I, - 'the manufacturer' means the user of the starch for the production of approved products. Article 3 1. In cases where a refund is granted, it shall be fixed once a month. 2. The refund per tonne of starch shall be calculated on the basis inter alia of the difference between: (i) the intervention price for cereals for the month in question taking account of the diffrences in the market prices for maize; and (ii) the average of the cif prices used to calculate the import levy for maize during the first 25 days of the month preceding the month of application, mulitplied by a coefficient of 1,60. 3. In the event of significant fluctuations in the market prices for maize and/or wheat in the Community or on the world market during the period defined in paragraph 1, the refund calculated in accordance with paragraph 2 may be altered to take account of such fluctuations. 4. The refund payable shall be that calculated in accordance with paragraph 2 and, where applicable, paragraph 3, multiplied by the coefficient indicated in Annex II which corresponds to the CN code of the starch actually used to manufacture the approved products. 5. The refund fixed in accordance with paragraphs 1 to 4 shall, where necessary, be corrected by the accession compensatory amountg applicable for the type of starch in question. 6. The decisions provided for in this Article shall be adopted by the Commission in accordance with the procedure laid down in Article 23 of Regulation (EEC) No 1766/92 and Article 27 of Regulation (EEC) No 1418/76, as applicable. Article 4 1. Manufacturers who intend to claim refunds should apply to the competent authority in the Member State where the starch is be used, giving the following information: (a) the name and address of the manufacturer; (b) the range of products in which starch is used, including those which are on the list in Annex I and those which are not, giving a full description and the CN codes; (c) where different from (a), the address(es) of the place(s) where the starch is to be processed into an approved product. Member States may ask the manufacturer for additional information. 2. Manufacturers shall submit a written undertaking to the competent authority, allowing the competent authorities to carry out all checks and inspections required to monitor the use of the starch and that they will provide any information required. 3. The competent authority shall take measures to ensure that the manufacturer is established and officially recognized in the Member State. 4. On the basis of the information specified in paragraphs 1 and 2, the complete authority shall draw up a list of approved manufacturers which it shall keep up to date. Only manufacturers thus approved shall be entitled to claim a refund in accordance with Article 5. Article 5 1. If the manufacturer wishes to apply for a refund, he must address himself in writing to his competent authority to obtain a refund certificate. 2. The application must specify: (a) the name and address of the manufacturer; (b) the quantity of starch to be used; (c) in the case of manufacture of a product falling within CN code 3505 10 50, the quantity of starch which will be used; (d) the place(s) where the starch will be used; (e) the planned dates of the processing operations. 3. The application shall be accompanied by: - the lodging of a security in accordance with Article 8, - a declaration by the supplier of the starch that the product to be used has been produced in accordance with footnote 4 of Annex II. 4. Member States may require additional information. Article 6 1. As soon as applications submitted in accordance with Article 5 are received, the competent authority shall verify them and shall issue the refund certificate forthwith. 2. Member States shall use national forms for the refund certificate which, without prejudice to the other provisions of Community legislation, shall contain at least the information specified in paragraph 3. 3. The refund certificate shall include the information referred to in Article 5 (2), as well as the rate of the refund payable and the final day of validity of the certificate, which shall be the last day of the fifth month following the month of issue. However, during July and August of the 1993/94, 1994/95 and 1995/96 marketing years, certificates shall be valid only until the last day of the month during which the certificate was issued. 4. The rate of refund stated on the certificate shall be that applicable on the date of receipt of the application. However, where any of the quantity of starch quoted on the certificate is processed during the cereals marketing year following that in which the application was received, the refund payable for that starch which is processed in the new marketing year shall be adjusted according to the difference between the intervention price used for the calculation of the refund payable, as defined in Article 3 (2), and that applicable in the month of procession, multiplied by a coefficient of 1,60. The conversion rate to be used to express the amount of the refund in national currency shall be that valid on the day on which the starch was processed. Article 7 1. Manufacturers in possession of a refund certificate delivered in accordance with Article 6 shall be entitled, provided all the requirements of this Regulation have been met, to request payment of the refund indicated on the certificate, after the starch has been used in the manufacture of the approved products concerned. 2. Rights under the certificate shall not be transferable. Article 8 1. The issue of a certificate shall be subject to the lodging of a security by the manufacturer with the competent authority, equal to ECU 15 per tonne of basic starch, where appropriate multiplied by the coefficient corresponding to the type of starch to be used as shown in Annex II. 2. The security shall be released in accordance with Regulation (EEC) No 2220/85. The primary requirement within the meaning of Article 20 of that Regulation shall be the processing of the quantity of starch stated on the application into approved products (as defined) within the period of validity of the certificate. However, if a manufacturer has processed at least 90 % of the quantity of starch stated on the application, he shall be deemed to have fulfilled the aforesaid primary requirement. Article 9 1. The definitive payment of the refund may be made only after the manufacturer has notified the competent authority of the following information: (a) the date or dates of purchase and delivery of the starch; (b) the name and address of the suppliers of the starch; (c) the name and address of the producers of the starch; (d) the date or dates on which the starch was processed; (e) the quantity and type of starch, including the CN codes, which has been used; (f) the quantity of the approved product shown on the certificate and manufactured using the starch. 2. Where the product mentioned on the certificate falls within CN code 3505 10 50, the notification referred to in paragraph 1 shall be accompanied by the lodging of a security equal to the production refund payable on the manufacture of the product in question. 3. Before payment, the competent authority shall establish that the starch has been used for the manufacture of the approved products in accordance with the information stated on the certificate. This will normally be achieved using administrative checks, but these should be supported by physical checks where necessary. 4. All checks provided for in this Regulation shall be completed within five months of the date on which the competent authority received the information required in paragraph 1. 5. Where the quantity of starch processed is greater than the quantity shown on the certificate, then the extra quantity, up to a limit of 5 %, shall be deemed to have been processed under that document, conferring a right to the refund indicated thereon. Article 10 1. The security provided for in Article 9 (2) shall be released only once the competent authority has received proof that the product falling within CN code 3505 10 50 has been: (a) used within the customs territory of the Community to manufacture products other than those listed at Annex II; or (b) exported to third countries. In the case of direct export to third countries, the security shall be released only once the competent authority has received proof that the product in question has left the customs territory of the Community. 2. The proof referred to in paragraphe 1 (a) shall consist of a declaration submitted by the manufacturer to the competent authority, indicating: - whether the product in question is to be processed, - that the product will be used to manufacture only products other than those listed in Annex II, - that the product in question will be sold only to a party who will make the undertaking mentioned in the second indent, on the basis of either a contractual clause established for that purpose or a specific condition mentioned in the sales invoice; the manufacturer shall retain a copy of the sales contract or of the sales invoice, to be kept at the disposal of the competent authority, - that he is aware of the provisions of paragraph 7, - the name and address of the party who receives the product and the quantity involved if the product is transferred, - the number of the T 5 control copy if the buyer is located in another Member State. 3. At the end of each quarter, the manufacturer shall forward copies of the declaration referred to in paragraph 2 to his competent authority within 20 working days. On receipt, the competent authority concerned shall forward the same documents to the competent authority of the buyer within 20 working days. 4. Both manufacturers and buyers of the product falling within CN code 3505 10 50 must have stock records of a type approved by the Member States so that compliance with the undertakings and information contained in the manufacturer's declaration referred to in paragraph 2 can be verified. 5. (a) The verification provided for in paragraph 4 shall be made by the competent authorities of the manufacturer and of the buyer at the end of each quarter. Such checks shall focus on overall data relating to that period for the manufacturers and buyers concerned, and on at least 10 % of all the transactions and utilizations which have taken place. Checks on such verification shall be determined by the competent authorities on the basis of a risk analysis. Each verification operation must be completed not later than five months after the end of each quarter. The competent authority of the manufacturer must have the results of each verification at its disposal not later than 20 working days after the end of each check. Where such verifications take place in two or more Member States, the competent authorities concerned shall communicate the results of the verifications made as part of the procedures referred to in Council Regulation (EEC) No 1468/81 of 19 May 1981 concerning mutual assistance (9). (b) If irregularities are found in 3 % or more of the checks referred to at (a), the competent authorities shall intensify checks. (c) Where the results of verifications so warrant, the authority which released the security shall apply the penalty provided for in paragraph 7 to the manufacturer concerned. 6. When the product in question is the subject of intra-Community trade or is exported to third countries via the territory of another Member State, a T 5 control copy shall be issued in accordance with Commission Regulation (EEC) No 3566/92 (10). Box 104 of the control copy shall include, under the heading 'Other', one of the following: Se utilizarÃ ¡ para la transformaciÃ ³n o la entrega, de conformidad con el artÃ culo 10 del Reglamento (CEE) no 1722/93 o para la exportaciÃ ³n a partir del territorio aduanero de la Comunidad. Til forarbejdning eller levering i overensstemmelse med artikel 10 i forordning (EOEF) nr. 1722/93 eller til udfoersel fra Faellesskabets toldomraade. Zur Verarbeitung oder Lieferung gemaess Artikel 10 der Verordnung (EWG) Nr. 1722/93 oder zur Ausfuhr aus dem Zollgebiet der Gemeinschaft bestimmt. Pros chrisi gia metapoiisi i paradosi symfona me to arthro 10 toy kanonismoy (EOK) arith. 1722/93 i gia exagogi apo to teloneiako edafos tis Koinotitas. To be used for processing or delivery in accordance with Article 10 of Commission Regulation (EEC) No 1722/93 or for export from the customs territory of the Community. Ã utiliser pour la transformation ou la livraison, conformÃ ©ment Ã l'article 10 du rÃ ¨glement (CEE) no 1722/93 ou pour l'exportation Ã partir du territoire douanier de la CommunautÃ ©. Da utilizzare per la trasformazione o la consegna, conformemente all'articolo 10 del regolamento (CEE) n. 1722/93 o per l'esportazione dal territorio doganale della ComunitÃ . Bestemd voor verwerking of levering overeenkomstig artikel 10 van Verordening (EEG) nr. 1722/93 of voor uitvoer uit het douanegebied van de Gemeenschap. A utilizar para transformaÃ §ao ou entrega, em conformidade com o disposto no artigo 10o do Regulamento (CEE) no 1722/93, ou para exportaÃ §ao a partir do territÃ ³rio aduaneiro da Comunidade. 7. If the conditions laid down in paragraphs 1 to 6 are not met, the competent authority of the Member State concerned shall, without prejudice to national sanctions, require payment of an amount equivalent to 150 % of the highest refund applicable to the product in question during the 12 preceding months. Article 11 1. The refund quoted on the certificate shall be paid only for the quantity of starch actually processed. At the same time, the security referred to in Article 8 (1) shall be released in accordance with Title V of Regulation (EEC) No 2220/85. 2. The refund shall be paid not later than five months after the date on which the check provided for in Article 9 (3) is completed. However, at the request of the manufacturer, the competent authority may advance a sum equivalent to the refund 30 days after receipt of the said information. Apart from cases where the product falls within CN code 3505 10 50, this advance shall be subject to the lodging of a security by the manufacturer equal to 115 % of the sum advanced. The security shall be released in accordance with Article 19 (1) of Regulation (EEC) No 2220/85. Article 12 Within three months of the end of each period as defined in Article 3 (1), Member States shall notify the Commission of the type, quantities and origin of starch (maize, wheat, potatoes or rice) for which refunds have been paid and the type and quantities of products for which the starch has been used. Article 13 Regulation (EEC) No 2169/86 is hereby repealed. Article 14 This Regulation shall enter into force on 1 July 1993. For the purpose of releasing the security pursuant to Article 7 of Regulation (EEC) No 2169/86, Article 10 shall also apply in the case of files which are still open at the time of the entry into force of this Regulation. This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Brussels, 30 June 1993. For the Commission RenÃ © STEICHEN Member of the Commission (1) OJ No L 181, 1. 7. 1992, p. 21. (2) OJ No L 166, 25. 6. 1976, p. 1. (3) OJ No L 154, 25. 6. 1993, p. 5. (4) OJ No L 108, 1. 5. 1993, p. 106. (5) OJ No L 205, 3. 8. 1985, p. 5. (6) OJ No L 364, 14. 12. 1989, p. 54. (7) OJ No L 189, 11. 7. 1986, p. 12. (8) OJ No L 134, 29. 5. 1991, p. 19. (9) OJ No L 144, 2. 6. 1981, p. 1. (10) OJ No L 362, 11. 12. 1992, p. 11. ANNEX I Products for which starch and/or its derivatives are used falling within the following codes and chapters of the combined nomenclature /* Tables: see OJ / ANNEX II / Tables: see OJ */ (1) The coefficient shown applies to starch with a dry matter content at a least 87 % in the case of maize, rice and wheat starches, and at least 80 % in the case of potato starch. The production refund payable for basic starch of a lower dry matter content than that shown is to be adjusted using the following formula: 1. Maize, rice of wheat starch: Actual % dry matter 87 Ã Production refund 2. Potato starch: 3 Actual % dry matter 80 Production refund The dry matter content of starch is determined by the method laid down in Annex II to Commission Regulation (EEC) No 1908/84 (OJ No L 178, 5. 7. 1984, p. 22). Where the production refund is paid for starch falling with CN code 1108, the purity of starch in the dry matter must be at least 97 %. When determining the degree of purity of starch, the method to be used in that set out in Annex III to this Regulation. (2) The production refund is payable for products falling within CN codes with a dry matter content of at least 78 %. The production refund payable for products falling within these CN codes with a dry matter content lower than 78 % is to be adjusted using the following formula: Actual % dry matter 78 Ã Production refund (3) he production refund is payable for D-glucitol (sorbitol) in aqueous solution with a dry matter content of at least 70 %. Where the dry matter content is lower than 70 %, the production refund is to be adjusted using the following formula: Actual % dry matter 70 Ã Production refund (4) Directly produced from maize, wheat, rice or potatoes, with the exclusion of all use of by-products obtained at the time of the manufacture of other agricultural products or merchandise. (5) The production refund is payable for the actual starch or dextrin dry matter content. ANNEX III The degree of purity of the starch in dry matter is determined with the aid of the modified polarimetric Ewers method, published in Annex I to the third Commission Directive 72/199/EEC (1) setting out the Community methods of analysis for the official control of animal feed. (1) OJ No L 123, 29. 5. 1972, p. 6.
Exhibit 16.1 January 26, 2012 Office of the Chief Accountant Securities and Exchange Commission 100F Street, NE Washington, D.C. 20549 Dear Sir/Madam: We have read the statements included under Item 4.01 in the Form 8-K dated January 27, 2012 of One E-Commerce Corporation (the "Company") to be filed with the Securities and Exchange Commission and we agree with such statements insofar as they relate to our dismissal and our audit for the years ended December 31, 2010 and 2009, and our reviews of interim financial statements. We cannot confirm or deny that the appointment of PKF Certified Public Accountants was approved by the Board of Directors, or that they were not consulted prior to their appointment as auditors. Very truly yours, /s/ PMB Helin Donovan, LLP PMB Helin Donovan, LLP Austin, Texas
Exhibit 1.1 FIRSTBANK CORPORATION (a Michigan corporation) 33,000 Shares of Fixed Rate Cumulative Perpetual Preferred Stock, Series A Preferred Stock UNDERWRITING AGREEMENT ●, 2012 ● as Representatives of the several Underwriters ● and ● Ladies and Gentlemen: Firstbank Corporation, a Michigan corporation (the “Company”), Firstbank-Alma, Firstbank (Mt. Pleasant), Firstbank-West Branch, Keystone Community Bank and Firstbank-West Michigan (each, a “Bank”) and the United States Department of the Treasury (the “Selling Shareholder”) each confirms its agreement with ● and ● (collectively, the “Underwriters,” which term shall also include any underwriter substituted as hereinafter provided in Section11 hereof), for whom ● and ● are acting as Representatives (in such capacity, the “Representatives”), with respect to the sale by the Selling Shareholder and the purchase by the Underwriters, acting severally and not jointly, of the respective numbers of shares of Fixed Rate Cumulative Perpetual Preferred Stock, Series A Preferred Stock, no par value per share, of the Company (the “Preferred Stock”) set forth in ScheduleA hereto.The aforesaid 33,000 shares of Preferred Stock to be purchased by the Underwriters are referred to herein, collectively, as the “Securities.” The Company understands that the Underwriters propose to make a public offering of the Securities as soon as the Representatives deem advisable after this Agreement has been executed and delivered. The Company has prepared and filed with the Securities and Exchange Commission (the “Commission”) a registration statement on FormS-1 (File No.333-180773) covering the resale of certain securities of the Company from time to time, including the Securities to be sold by the Selling Shareholder under this Agreement, under the Securities Act of 1933, as amended (the “1933 Act”), and the rules and regulations promulgated thereunder (the “1933 Act Regulations”).Promptly after delivery of this Agreement, the Company will prepare and file a final prospectus supplement relating to the Securities in accordance with the provisions of Rule 430A of the 1933 Act Regulations (“Rule 430A”) and Rule 424(b) of the 1933 Act Regulations (“Rule 424(b)”).The information included in such prospectus that was omitted from such registration statement at the time it became effective but that is deemed to be part of such registration statement at the time it became effective pursuant to Rule 430A(b) is referred to herein as the “Rule 430A Information.”Such registration statement has been declared effective by the Commission under the 1933 Act.Such registration statement, as of any time, means such registration statement as amended by any post-effective amendments thereto at such time, including the exhibits and any schedules thereto at such time, the documents incorporated by reference therein at such time pursuant to Item12 of FormS-1 under the 1933 Act and the Rule 430A Information, is referred to herein as the “Registration Statement;” provided, however, that the “Registration Statement” without reference to a time means such registration statement as amended by any post-effective amendments thereto as of the time of the first contract of sale for the Securities, including the exhibits and schedules thereto as of such time, the documents incorporated by reference therein at such time pursuant to Item12 of FormS-1 under the 1933 Act and the Rule 430A Information.Each preliminary prospectus supplement and the base prospectus used in connection with the offering of the Securities, including the documents incorporated by reference therein pursuant to Item12 of FormS-1 under the 1933 Act immediately prior to the Applicable Time (as defined below), are collectively referred to herein as a “preliminary prospectus.”The final prospectus supplement and the base prospectus, in the form first furnished to the Underwriters for use in connection with the offering and sale of the Securities, including the documents incorporated by reference therein pursuant to Item12 of FormS-1 under the 1933 Act immediately prior to the Applicable Time, are collectively referred to herein as the “Prospectus.”For purposes of this Agreement, all references to the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto shall be deemed to include the copy filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system (or any successor system)(“EDGAR”). As used in this Agreement: “Applicable Time” means [:00 P./A.M.], New York City time, on [INSERT DATE] or such other time as agreed by the Company and the Representatives. “General Disclosure Package” means each Issuer General Use Free Writing Prospectus, the most recent preliminary prospectus furnished to the Underwriters for general distribution to investors prior to the Applicable Time and the information specified in ScheduleB hereto, all considered together. “Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule433 of the 1933 Act Regulations (“Rule433”), including, without limitation, any “free writing prospectus” (as defined in Rule405) relating to the Securities that is (i)required to be filed with the Commission by the Company, (ii)a “road show that is a written communication” within the meaning of Rule433(d)(8)(i), whether or not required to be filed with the Commission, or (iii)exempt from filing with the Commission pursuant to Rule433(d)(5)(i) because it contains a description of the Securities or of the offering thereof that does not reflect the final terms, in each case in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the Company’s records pursuant to Rule433(g). “Issuer General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is intended for general distribution to investors, as evidenced by its being specified in ScheduleC hereto. “Issuer Limited Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is not an Issuer General Use Free Writing Prospectus. All references in this Agreement to financial statements and schedules and other information which is “contained,” “included,” “described,” “disclosed” or “stated” (or other references of like import) in the Registration Statement, any preliminary prospectus or the Prospectus shall be deemed to include all such financial statements and schedules and other information incorporated by reference in the Registration Statement, any preliminary prospectus or the Prospectus, as the case may be. This Agreement, the Company’s Restated Articles of Incorporation, as amended by the Certificate of Designations with respect to the Securities (collectively, the “Charter”), and the Company’s By-Laws (the “By-Laws”) are referred to herein, collectively, as the “Operative Documents.” SECTION 1.Representations and Warranties. (a)Representations and Warranties by the Company.The Company represents and warrants to each Underwriter and the Selling Shareholder at the date hereof, the Applicable Time and the Closing Time (as defined below) (each, a “Representation Date”), and agrees with each Underwriter and the Selling Shareholder, as follows: (i)Compliance of the Registration Statement, the Prospectus and Incorporated Documents.The Company meets the requirements for incorporation by reference into the Registration Statement specified in General Instruction VII of Form S-1.Each of the Registration Statement and any post-effective amendment thereto has been declared effective by the Commission under the 1933 Act.No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued under the 1933 Act, no order preventing or suspending the use of any preliminary prospectus or the Prospectus or any amendment or supplement thereto has been issued and no proceedings for any of those purposes have been instituted or are pending or, to the Company’s knowledge, contemplated.The Company has complied with each request (if any) from the Commission for additional information. Each of the Registration Statement and any post-effective amendment thereto, at the time of its effectiveness, complied in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.Each preliminary prospectus and the Prospectus and any amendment or supplement thereto, at the time each was filed with the Commission, complied in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations and are identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T. The documents incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus, at the time they were filed with the Commission, complied and will comply in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the “1934 Act”), and the rules and regulations promulgated thereunder (the “1934 Act Regulations”). 2 (ii)Accurate Disclosure.Neither the Registration Statement nor any amendment thereto, at its effective time or at the Closing Time, contained, contains or will contain an untrue statement of a material fact or omitted, omits or will omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.At the Applicable Time, neither (A)the General Disclosure Package nor (B)any individual Issuer Limited Use Free Writing Prospectus, when considered together with the General Disclosure Package, included, includes or will include an untrue statement of a material fact or omitted, omits or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.Neither the Prospectus nor any amendment or supplement thereto, as of its issue date, at the time of any filing with the Commission pursuant to Rule424(b) or at the Closing Time, included, includes or will include an untrue statement of a material fact or omitted, omits or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.The documents incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus, at the time the Registration Statement became effective, when read together with the other information in the Registration Statement, the General Disclosure Package or the Prospectus, as the case may be, did not, does not and will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. The representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or any amendment thereto or the General Disclosure Package or the Prospectus or any amendment or supplement thereto made in reliance upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives or by the Selling Shareholder, in each case expressly for use therein.For purposes of this Agreement, the only information so furnished by (A)any Underwriter through the Representatives shall be (i) the information under the caption “Auction Process” (except for any statement that refers to the Company, its intentions or its potential activity as a bidder in the auction) and (ii) the information in the first, second and third paragraphs under the caption “Underwriting–Stabilization”, in each case, contained in the Registration Statement, the preliminary prospectus supplement contained in the General Disclosure Package and the Prospectus (collectively, the “Underwriter Information”) and (B)the Selling Shareholder shall be the information in the third and fourth paragraphs under the heading “Selling Shareholder”, in each case, contained in the Registration Statement, the preliminary prospectus contained in the General Disclosure Package and the Prospectus (collectively, the “Selling Shareholder Information”). (iii)Issuer Free Writing Prospectuses.No Issuer Free Writing Prospectus conflicts or will conflict with the information contained in the Registration Statement, any preliminary prospectus or the Prospectus, including any document incorporated by reference therein, that has not been superseded or modified. (iv)Company Not Ineligible Issuer.(A)At the time of filing the Registration Statement and any post-effective amendment thereto, (B)at the earliest time thereafter that the Company or another offering participant made a bona fide offer (within the meaning of Rule164(h)(2) of the 1933 Act Regulations) of the Securities, (C)at the date of this Agreement and (D)at the Applicable Time, the Company was not and is not an “ineligible issuer,” as defined in Rule405, without taking account of any determination by the Commission pursuant to Rule405 that it is not necessary that the Company be considered an ineligible issuer. (v)Independent Accountants.The accountants who certified the financial statements and supporting schedules included in the Registration Statement, the General Disclosure Package and the Prospectus are independent public accountants as required by the 1933 Act, the 1933 Act Regulations, the 1934 Act, the 1934 Act Regulations and the Public Accounting Oversight Board. (vi)Financial Statements; Non-GAAP Financial Measures.The financial statements of the Company included in the Registration Statement, the General Disclosure Package and the Prospectus, together with the related schedules and notes, present fairly the financial position of the Company and its consolidated subsidiaries at the dates indicated and the statement of operations, stockholders’ equity and cash flows of the Company and its consolidated subsidiaries for the periods specified; said financial statements have been prepared in conformity with U.S.generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved.Any financial statements of businesses or properties acquired or proposed to be acquired, if any, included in the Registration Statement, the General Disclosure Package and the Prospectus present fairly the information set forth therein, have been prepared in conformity with GAAP applied on a consistent basis and otherwise have been prepared in accordance with the financial statement requirements of Rule3-05 or Rule3-14 of RegulationS-X, as applicable.The supporting schedules, if any, present fairly in accordance with GAAP the information required to be stated therein.The selected financial data and the summary financial information included in the Registration Statement, the General Disclosure Package and the Prospectus present fairly the information shown therein and have been compiled on a basis consistent with that of the audited financial statements included therein.Any pro forma financial statements and the related notes thereto included in the Registration Statement, the General Disclosure Package and the Prospectus present fairly the information shown therein, have been prepared in accordance with the Commission’s rules and guidelines with respect to pro forma financial statements and have been properly compiled on the bases described therein, and the assumptions used in the preparation thereof are reasonable and the adjustments used therein are appropriate to give effect to the transactions and circumstances referred to therein.Except as included therein, no historical or pro forma financial statements or supporting schedules are required to be included in the Registration Statement, any preliminary prospectus or the Prospectus under the 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations.All disclosures contained in the Registration Statement, the General Disclosure Package or the Prospectus, if any, regarding “non-GAAP financial measures” (as such term is defined by the rules and regulations of the Commission) comply with RegulationG under the 1934 Act and Item10 of Regulation S-K under the 1933 Act, to the extent applicable.Any interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus fairly presents the required information and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto. 3 (vii)No Material Adverse Change.Except as described in the Registration Statement, the General Disclosure Package and the Prospectus, since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus, (A)there has been no material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Change”), (B)there have been no transactions entered into by the Company or any of its subsidiaries, other than those in the ordinary course of business, which are material with respect to the Company and its subsidiaries considered as one enterprise, and (C)except for regular dividends on the Company’s capital stock in amounts per share that are consistent with past practice, there has been no dividend or distribution of any kind declared, paid or made by the Company on any class or series of its capital stock. (viii)Good Standing of the Company.The Company has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Michigan and has all requisite power and authority to own, lease and operate its properties, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under, and to consummate the transactions contemplated in, the Operative Documents.The Company is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not, singly or in the aggregate, result in a material adverse effect (A)in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, or (B)on the ability of the Company to enter into and perform its obligations under, or consummate the transactions contemplated in, the Operative Documents (a “Material Adverse Effect”).The Company is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended.The Company has furnished to the Representatives complete and correct copies of the Charter and By-Laws and all amendments thereto, and no change thereto is contemplated or has been authorized or approved by the Company or its stockholders. (ix)Good Standing of Subsidiaries.Each “significant subsidiary” of the Company (as such term is defined in Rule1-02 of Regulation S-X) (including each Bank) (each, a “Significant Subsidiary” and, collectively, the “Significant Subsidiaries”) has been duly organized and is validly existing and in good standing under the laws of the jurisdiction of its incorporation or other organization, has all requisite power and authority to own, lease and operate its properties, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and, in the case of each Bank, to enter into, and perform its obligations under, this Agreement and is duly qualified to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify or to be in good standing would not, singly or in the aggregate, result in a Material Adverse Effect.Except as described in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding shares of capital stock of or other equity interests in each Significant Subsidiary have been duly authorized and validly issued, are fully paid and non-assessable and are owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity.None of the outstanding shares of capital stock of or other equity interests in any Significant Subsidiary were issued in violation of the preemptive or similar rights of any securityholder of such Significant Subsidiary or any other entity.The only subsidiaries of the Company are (A) the subsidiaries listed on Exhibit21 to the Registration Statement and (B)certain other subsidiaries which, considered in the aggregate as a single subsidiary, do not constitute a “significant subsidiary” within the meaning of Rule1-02 of Regulation S-X.The deposit accounts of each of the Company’s banking subsidiaries are insured up to the applicable limits by the Deposit Insurance Fund of the Federal Deposit Insurance Corporation (the “FDIC”) to the fullest extent permitted by law and the rules and regulations of the FDIC, and no proceeding for the revocation or termination of such insurance is pending or, to the knowledge of the Company, threatened. (x)Regulatory Matters.Except as described in the Registration Statement, the General Disclosure Package and the Prospectus, neither the Company nor any of its subsidiaries is subject or is party to, or has received any notice or advice that any of them may become subject or party to any investigation with respect to, any corrective, suspension or cease-and-desist order, agreement, consent agreement, memorandum of understanding or other regulatory enforcement action, proceeding or order with or by, or is a party to any commitment letter or similar undertaking to, or is subject to any directive by, or has been a recipient of any supervisory letter from, or has adopted any board resolutions at the request of, any Regulatory Agency (as defined below) that currently relates to or restricts in any material respect the conduct of their business or that in any manner relates to their capital adequacy, credit policies, management or business (each, a “Regulatory Agreement”), nor has the Company or any of its subsidiaries been advised by any Regulatory Agency that it is considering issuing or requesting any Regulatory Agreement.There is no unresolved violation, criticism or exception by any Regulatory Agency with respect to any report or statement relating to any examinations of the Company or any of its subsidiaries.The Company and its subsidiaries are in compliance in all material respects with all laws administered by the Regulatory Agencies.As used herein, the term “Regulatory Agency” means any federal or state agency charged with the supervision or regulation of depositary institutions or holding companies of depositary institutions, or engaged in the insurance of depositary institution deposits, or any court, administrative agency or commission or other authority, body or agency having supervisory or regulatory authority with respect to the Company or any of its subsidiaries. (xi)Capitalization.The authorized, issued and outstanding shares of capital stock of the Company are as set forth in the last balance sheet included in the Registration Statement, the preliminary prospectus supplement contained in the General Disclosure Package and the Prospectus (except for subsequent issuances, if any, pursuant to this Agreement, pursuant to reservations, agreements or employee benefit plans referred to in the Registration Statement, the General Disclosure Package and the Prospectus or pursuant to the exercise of convertible securities or options referred to in the Registration Statement, the General Disclosure Package and the Prospectus).The outstanding shares of capital stock of the Company, including the Securities, have been duly authorized and validly issued and are fully paid and non-assessable.None of the outstanding shares of capital stock of the Company, including the Securities, were issued in violation of the preemptive or other similar rights of any securityholder of the Company or any other entity.The outstanding capital stock of the Company, including the Preferred Stock, conforms to all statements relating thereto contained in the Registration Statement, the General Disclosure Package and the Prospectus and such statements conform to the rights set forth in the instruments defining the same. 4 (xii)Authorization of Agreement.This Agreement has been duly authorized, executed and delivered by each of the Company and each Bank. (xiii)Filing of the Certificate of Designations; Form of Certificate.The Certificate of Designations for the Securities has been duly filed with the Secretary of State of the State of Michigan.The form of certificate representing the Securities complies with the requirements of Michigan state law, the Charter and the By-Laws. (xiv)Registration Rights.There are no persons with registration rights or other similar rights to have any securities registered for sale pursuant to the Registration Statement or otherwise registered for sale or sold by the Company under the 1933 Act pursuant to this Agreement other than any rights that have been disclosed in the Registration Statement, the General Disclosure Package and the Prospectus and have been waived. (xv)Absence of Violations, Defaults and Conflicts.Neither the Company nor any of its subsidiaries is (A)in violation of its charter, by-laws or similar organizational document, (B)in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which it or any of them may be bound or to which any of the properties, assets or operations of the Company or any of its subsidiaries is subject (collectively, “Agreements and Instruments”), except for such defaults that would not, singly or in the aggregate, result in a Material Adverse Effect, or (C)in violation of any law, statute, rule, regulation, judgment, order, writ or decree of any arbitrator, court, governmental body, regulatory body, administrative agency (including, without limitation, each applicable Regulatory Agency) or other authority, body or agency having jurisdiction over the Company or any of its subsidiaries or any of their respective properties, assets or operations (each, a “Governmental Entity”), except for such violations that would not, singly or in the aggregate, result in a Material Adverse Effect.The execution, delivery and performance of the Operative Documents and the consummation of the transactions contemplated in this Agreement and in the Registration Statement, the General Disclosure Package and the Prospectus, including the purchase of Securities by the Company in the offering contemplated hereby, and compliance by the Company and each Bank with their respective obligations under the Operative Documents have been duly authorized by the Company and each Bank, as the case may be, by all requisite action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties, assets or operations of the Company or any of its subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not, singly or in the aggregate, result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter, by-laws or similar organizational document of the Company or any of its subsidiaries or any law, statute, rule, regulation, judgment, order, writ or decree of any Governmental Entity.As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other financing instrument (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of the related financing by the Company or any of its subsidiaries. (xvi)Absence of Labor Dispute.No labor dispute with the employees of the Company or any of its subsidiaries exists or, to the knowledge of the Company, is imminent, and the Company is not aware of any existing or imminent labor disturbance by the employees of any of its or any subsidiary’s principal suppliers, manufacturers, customers or contractors, which could, singly or in the aggregate, result in a Material Adverse Effect. (xvii)Absence of Proceedings.Except as described in the Registration Statement, the General Disclosure Package and the Prospectus, there is no action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity now pending, or, to the knowledge of the Company, threatened, against or affecting the Company or any of its subsidiaries, which could, singly or in the aggregate, result in a Material Adverse Effect, or which might materially and adversely affect their respective properties, assets or operations, or the consummation of the transactions contemplated in this Agreement, or the performance by the Company of its obligations under the Operative Documents.The aggregate of all pending legal or governmental proceedings to which the Company or any of its subsidiaries are a party or of which any of their respective properties, assets or operations are the subject which are not described in the Registration Statement, the General Disclosure Package and the Prospectus, including ordinary routine litigation incidental to the business, would not, singly or in the aggregate, result in a Material Adverse Effect. (xviii)Accuracy of Contracts; Exhibits.All descriptions in the Registration Statement, the General Disclosure Package and the Prospectus of contracts and other documents to which the Company or any of its subsidiaries are a party are accurate in all material respects. There are no contracts, instruments or other documents which are required to be described in the Registration Statement, any preliminary prospectus or the Prospectus or to be filed as exhibits to the Registration Statement which have not been so described and filed as required. (xix)Absence of Further Requirements.No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any Governmental Entity is necessary or required for the Company or each Bank to enter into, or perform their respective obligations under, the Operative Documents or the consummation of the transactions contemplated in this Agreement, except such as have been already obtained or as may be required under the 1933 Act, the 1933 Act Regulations, the securities laws of any state or non-U.S. jurisdiction or the rules of Financial Industry Regulatory Authority, Inc. (“FINRA”). 5 (xx)Possession of Licenses and Permits.The Company and its subsidiaries possess such permits, licenses, approvals, consents and other authorizations (collectively, “Governmental Licenses”) issued by the appropriate Governmental Entities necessary to conduct the business now operated by them, except where the failure so to possess would not, singly or in the aggregate, result in a Material Adverse Effect.The Company and its subsidiaries are in compliance with the terms and conditions of all Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in a Material Adverse Effect.All of the Governmental Licenses are valid and in full force and effect, except when the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, result in a Material Adverse Effect.Neither the Company nor any of its subsidiaries has received any notice of proceedings relating to the revocation or modification of any Governmental Licenses which, if the subject of an unfavorable decision, ruling or finding, could, singly or in the aggregate, result in a Material Adverse Effect. (xxi)Title to Property.The Company and its subsidiaries have good and marketable title to all real property owned by them and good title to all other properties owned by them, in each case, free and clear of all mortgages, pledges, liens, security interests, claims, restrictions or encumbrances of any kind except such as (A)are described in the Registration Statement, the General Disclosure Package and the Prospectus or (B)do not, singly or in the aggregate, materially affect the value of such property and do not materially interfere with the use made and proposed to be made of such property by the Company or any of its subsidiaries.All of the leases and subleases material to the business of the Company and its subsidiaries, considered as one enterprise, and under which the Company or any of its subsidiaries holds properties described in the Registration Statement, the General Disclosure Package or the Prospectus, are in full force and effect, and neither the Company nor any such subsidiary has any notice of any material claim of any sort that has been asserted by anyone adverse to its rights under any of the leases or subleases mentioned above or affecting or questioning its rights to the continued possession of the leased or subleased premises under any such lease or sublease. (xxii)Possession of Intellectual Property.The Company and its subsidiaries own or possess, or can acquire on reasonable terms, adequate patents, patent rights, licenses, inventions, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), trademarks, service marks, trade names or other intellectual property (collectively, “Intellectual Property”) necessary to carry on the business now operated by them, and neither the Company nor any of its subsidiaries has received any notice or is otherwise aware of any infringement of or conflict with asserted rights of others with respect to any Intellectual Property or of any facts or circumstances which would render any Intellectual Property invalid or inadequate to protect the interest of the Company or any of its subsidiaries therein, and which infringement or conflict, if the subject of an unfavorable decision, ruling or finding, or invalidity or inadequacy, could, singly or in the aggregate, result in a Material Adverse Effect. (xxiii)Environmental Laws.Except as described in the Registration Statement, the General Disclosure Package and the Prospectus or would not, singly or in the aggregate, result in a Material Adverse Effect, (A)neither the Company nor any of its subsidiaries is in violation of any federal, state, local or foreign statute, law, rule, regulation, ordinance, code, policy or rule of common law or any judicial or administrative interpretation thereof, including any judicial or administrative order, consent, decree or judgment, relating to pollution or protection of human health, the environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata) or wildlife, including, without limitation, laws and regulations relating to the release or threatened release of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous substances, petroleum or petroleum products, asbestos-containing materials or mold (collectively, “Hazardous Materials”) or to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials (collectively, “Environmental Laws”), (B)the Company and its subsidiaries have all permits, authorizations and approvals required under any applicable Environmental Laws and are each in compliance with their requirements, (C)there are no pending or threatened administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation, investigation or proceedings relating to any Environmental Law against the Company or any of its subsidiaries and (D)there are no events or circumstances that would reasonably be expected to form the basis of an order for clean-up or remediation, or an action, suit or proceeding by any private party or Governmental Entity, against or affecting the Company or any of its subsidiaries relating to Hazardous Materials or any Environmental Laws. (xxiv)Accounting Controls and Disclosure Controls.The Company and each of its subsidiaries maintain effective internal control over financial reporting (as defined under Rule13-a15 and 15d-15 of the 1934 Act Regulations) and a system of internal accounting controls sufficient to provide reasonable assurances that:(A)transactions are executed in accordance with management’s general or specific authorization; (B)transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets; (C)access to assets is permitted only in accordance with management’s general or specific authorization; (D)the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences; and (E)any interactive data in eXtensible Business Reporting Language included in the Registration Statement, the General Disclosure Package and the Prospectus fairly presents the required information and is prepared in accordance with the Commission’s rules and guidelines applicable thereto.Except as described in the Registration Statement, the General Disclosure Package and the Prospectus, since the end of the Company’s most recent audited fiscal year, there has been (1)no material weakness in the Company’s internal control over financial reporting (whether or not remediated) and (2)no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.The Company and each of its subsidiaries maintain an effective system of disclosure controls and procedures (as defined in Rule13a-15 and Rule15d-15 of the 1934 Act Regulations) that are designed to ensure that the information required to be disclosed by the Company in the reports that it files or submits under the 1934 Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and forms, and is accumulated and communicated to the Company’s management, including its principal executive officer or officers and principal financial officer or officers, as appropriate, to allow timely decisions regarding disclosure. 6 (xxv)Compliance with the Sarbanes-Oxley Act; Registration and Listing of Common Stock.There is and has been no failure on the part of the Company or any of the Company’s directors or officers, in their capacities as such, to comply in all material respects with any provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith, including Section402 related to loans and Sections302 and 906 related to certifications.The Company’s common stock has been duly registered under the 1934 Act and duly listed on the Nasdaq Global Select Market and the Company is in compliance in all material respects with the applicable rules and regulations with respect to such registrationand listing.The Company has taken no action designed to, or reasonably likely to have the effect of, terminating the registration of the Company’s common stock under the 1934 Act or the listing of the Company’s common stock on the Nasdaq Global Select Market and has not received any communication that the Commission or the Nasdaq Global Select Market has terminated, intends to terminate, or is contemplating terminating, such registration or listing, respectively. (xxvi)Payment of Taxes.All United States federal income tax returns of the Company and its subsidiaries required by law to be filed have been filed and all taxes shown by such returns or otherwise assessed, which are due and payable, have been paid, except assessments against which appeals have been or will be promptly taken and as to which adequate reserves have been provided.The United States federal income tax returns of the Company and its subsidiaries through the fiscal year ended December31, 20● have been settled and no assessment in connection therewith has been made against the Company or any of its subsidiaries.The Company and its subsidiaries have filed all other tax returns that are required to have been filed by them pursuant to applicable foreign, state, local or other law except insofar as the failure to file such returns would not, singly or in the aggregate, result in a Material Adverse Effect, and has paid all taxes due pursuant to such returns or pursuant to any assessment received by the Company or any of its subsidiaries, except for such taxes, if any, as are being contested in good faith and as to which adequate reserves have been established by the Company.The charges, accruals and reserves on the books of the Company in respect of any income and corporation tax liability for any years not finally determined are adequate to meet any assessments or re-assessments for additional income tax for any years not finally determined, except to the extent of any inadequacy that would not, singly or in the aggregate, result in a Material Adverse Effect. (xxvii)Insurance.The Company and its subsidiaries carry or are entitled to the benefits of insurance, with financially sound and reputable insurers, in such amounts and covering such risks as is generally maintained by companies of established repute engaged in the same or similar business, and all such insurance is in full force and effect.The Company has no reason to believe that it or any of its subsidiaries will not be able (A)to renew its existing insurance coverage as and when such policies expire or (B)to obtain comparable coverage from similar institutions as may be necessary or appropriate to conduct its business as now conducted and at a cost that would not, singly or in the aggregate, result in a Material Adverse Effect.Neither of the Company nor any of its subsidiaries has been denied any insurance coverage which it has sought or for which it has applied. (xxviii)Investment Company Act.Neither the Company nor any Bank is required, or upon the consummation of the transactions contemplated in this Agreement will be required, to register as an “investment company” under the Investment Company Act of 1940, as amended (the “1940 Act”). (xxix)Absence of Manipulation.Neither the Company nor any subsidiary or other affiliate of the Company has taken, nor will the Company or any such subsidiary or other affiliate take, directly or indirectly, any action which is designed, or would be expected, to cause or result in, or which constitutes, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities or to result in a violation of RegulationM under the 1934 Act. (xxx)Foreign Corrupt Practices Act.None of the Company, any of its subsidiaries or, to the knowledge of the Company, any director, officer, agent, employee, affiliate or other person acting on behalf of the Company or any of its subsidiaries is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”), including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and the Company, its subsidiaries and, to the knowledge of the Company, its other affiliates have conducted their businesses in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith. (xxxi)Money Laundering Laws.The operations of the Company and its subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any Governmental Entity (collectively, the “Money Laundering Laws”).No action, suit or proceeding by or before any Governmental Entity involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the best knowledge of the Company, threatened. (xxxii)OFAC.None of the Company, any of its subsidiaries or, to the knowledge of the Company, any director, officer, agent, employee, affiliate or other person acting on behalf of the Company or any of its subsidiaries is (A)an individual or entity (“Person”) currently the subject or target of anysanctions administered or enforced by the United States Government, including, without limitation, the U.S.Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), the United Nations Security Council (“UNSC”), the European Union, Her Majesty’s Treasury (“HMT”), or other relevant sanctions authority (collectively, “Sanctions”) or (B)located, organized or resident in a country or territory that is the subject of Sanctions. (xxxiii)Relationship with Underwriters.Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, the Company does not have anymaterial lending or other relationship with the Underwriters or any affiliate of any Underwriter. 7 (xxxiv)Statistical and Market-Related Data.Any statistical and market-related data included in the Registration Statement, the General Disclosure Package or the Prospectus are based on or derived from sources that the Company believes, after reasonable inquiry, to be reliable and accurate and, to the extent required, the Company has obtained the written consent to the use of such data from such sources. (xxxv)Prohibition on Dividends.Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, no subsidiary of the Company is currently prohibited, directly or indirectly, under any order of any Regulatory Agency (other than orders applicable to bank or savings and loan holding companies and their subsidiaries generally), under any applicable law, or under any agreement or other instrument to which it is a party or is subject, from paying any dividends to the Company, from making any other distribution on such subsidiary’s capital stock, from repaying to the Company or any other subsidiary of the Company any loans or advances to such subsidiary or from transferring any of such subsidiary’s properties, assets or operations to the Company or any other subsidiary of the Company. (xxxvi)Not a U.S.Real Property Holding Corporation.The Company is not, and has not been, a U.S.real property holding corporation within the meaning of Section897 of the Internal Revenue Code of 1986, as amended. (xxxvii)Fair Saleable Value of Assets.Each of the Company and its subsidiaries owns and, after giving effect to the transactions contemplated in this Agreement, will own assets the fair saleable value of which are greater than (A)the total amount of its liabilities (including known contingent liabilities) and (B)the amount that will be required to pay the probable liabilities of its existing debts as they become absolute and matured considering the financing alternatives reasonably available to it.The Company has no knowledge of any facts or circumstances which lead it to believe that it or any of its subsidiaries will be required to file for reorganization or liquidation under the bankruptcy or reorganization laws of any jurisdiction, and has no present intent to so file. (xxxviii)Affiliated Transactions or Relationships.No transaction has occurred or relationship exists between or among the Company or any of its subsidiaries, on the one hand, and its affiliates, officers or directors, on the other hand, that is required to be described in the Registration Statement, the preliminary prospectus contained in the General Disclosure Package or the Prospectus, including any document incorporated by reference therein, that is not so described therein. (b)Representations and Warranties by the Bank.Each Bank represents and warrants to each Underwriter and the Selling Shareholder at each Representation Date, and agrees with each Underwriter, as follows: (i)Good Standing.Each Bank has been duly organized and is validly existing and in good standing under the laws of the jurisdiction of its organization, has all requisite power and authority to own, lease and operate its properties, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under, and to consummate the transactions contemplated in, this Agreement and is duly qualified to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify or to be in good standing would not, singly or in the aggregate, result in a Material Adverse Effect.The deposit accounts of each Bank are insured up to the applicable limits by the Deposit Insurance Fund of the FDIC to the fullest extent permitted by law and the rules and regulations of the FDIC, and no proceeding for the revocation or termination of such insurance is pending or, to the knowledge of the Company, threatened. (ii)Regulatory Matters.Except as described in the Registration Statement, the General Disclosure Package and the Prospectus, each Bank is not subject or party to, and has not received any notice or advice that it may become subject or party to any investigation with respect to, any Regulatory Agreement, and each Bank has not been advised by any Regulatory Agency that it is considering issuing or requesting any Regulatory Agreement.There is no unresolved violation, criticism or exception by any Regulatory Agency with respect to any report or statement relating to any examinations of any Bank.Each Bank is in compliance in all material respects with all laws administered by the Regulatory Agencies. (iii)Authorization of Agreement.This Agreement has been duly authorized, executed and delivered by each Bank. (iv)Absence of Violations, Defaults and Conflicts.Each Bank is not (A)in violation of its charter, by-laws or similar organizational document, (B)in default in the performance or observance of any obligation, agreement, covenant or condition contained in any Agreement and Instrument to which such Bank is a party or by which it may be bound or to which any of the properties, assets or operations of such Bank is subject, except for such defaults that would not, singly or in the aggregate, result in a Material Adverse Effect, or (C)in violation of any law, statute, rule, regulation, judgment, order, writ or decree of any Governmental Entity (including, without limitation, each applicable Regulatory Agency) having jurisdiction over such Bank or any of its properties, assets or operations, except for such violations that would not, singly or in the aggregate, result in a Material Adverse Effect. (v)Noncontravention.The execution, delivery and performance of this Agreement and compliance by each Bank with its obligations under this Agreement have been duly authorized by such Bank by all requisite action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties, assets or operations of such Bank pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not, singly or in the aggregate, result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter, by-laws or similar organizational document of such Bank or any law, statute, rule, regulation, judgment, order, writ or decree of any Governmental Entity. (vi)Absence of Further Requirements.No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any Governmental Entity is necessary or required for the performance by each Bank of its obligations under this Agreement. 8 (vii)Investment Company Act.No Bank is required to register as an “investment company” under the 1940 Act. (c)Representations and Warranties by the Selling Shareholder.The Selling Shareholder represents and warrants to, and agrees with, the Company and each Underwriter at each Representation Date as follows: (i)Good and Marketable Title.The Selling Shareholder now has and at the Closing Time will have good and marketable title to the Securities to be sold by it, free and clear of any liens, encumbrances, equities and claims, and full right, power and authority to effect the sale and delivery of the Securities.Upon the delivery of, against payment for, the Securities pursuant to this Agreement and assuming an Underwriter does not have notice of any adverse claim (within the meaning of the Uniform Commercial Code as in effect in the State of New York), such Underwriter will acquire good and marketable title thereto, free and clear of any liens, encumbrances, equities and claims. (ii)Authorization of Agreement.The Selling Shareholder has full right, power and authority to execute and deliver this Agreement and to perform its obligations hereunder, and this Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder. (iii)Absence of Further Requirements.No consent, approval or waiver is required under any instrument or agreement to which the Selling Shareholder is a party or by which the Selling Shareholder is bound in connection with the offering, sale or purchase by the Underwriters of any of the Securities by the Selling Shareholder under this Agreement or the consummation by the Selling Shareholder of any of the other transactions contemplated hereunder. (d)Officer’s Certificates.Any certificate signed by any officer of the Company or any of its subsidiaries (including each Bank) and delivered to the Representatives or to counsel for the Underwriters shall be deemed a representation and warranty by the Company and, if applicable, each Bank to each Underwriter as to the matters covered thereby. SECTION 2.Sale and Delivery to Underwriters; Closing. (a)Securities.On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Selling Shareholder agrees to sell to each Underwriter, severally and not jointly, and each Underwriter, severally and not jointly, agrees to purchase from the Selling Shareholder , at the price per share set forth in ScheduleA, the number of Securities set forth in ScheduleA opposite the name of such Underwriter, plus any additional number of Securities which such Underwriter may become obligated to purchase pursuant to the provisions of Section11 hereof, subject, in each case, to such adjustments among the Underwriters as the Representatives in their sole discretion shall make to eliminate any sales or purchases of fractional shares. (b)Payment.Payment of the purchase price for, and delivery of certificates for, the Securities shall be made at the offices of[●], or at such other place as shall be agreed upon by the Representatives and the Selling Shareholder, at 9:00A.M. (New York City time) on the third (fourth, if the pricing occurs after 4:30P.M. (New York City time) on any given day) business day after the date hereof (unless postponed in accordance with the provisions of Section11), or such other time not later than ten business days after such date as shall be agreed upon by the Representatives and the Selling Shareholder (such time and date of payment and delivery being herein called “Closing Time”). Payment shall be made to the Selling Shareholder by wire transfer of immediately available funds to a bank account designated by the Selling Shareholder against delivery to the Representatives for the respective accounts of the Underwriters of certificates for the Securities to be purchased by them.It is understood that each Underwriter has authorized the Representatives, for their account, to accept delivery of, receipt for, and make payment of the purchase price for, the Securities, which it has agreed to purchase.● and ●, individually and not as Representatives of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Securities to be purchased by any Underwriter whose funds have not been received by the Closing Time but such payment shall not relieve such Underwriter from its obligations hereunder. SECTION 3.Covenants of the Company.The Company covenants with each Underwriter and the Selling Shareholder as follows: (a)Compliance with Commission Requests.The Company, subject to Section3(b), hereof will comply with the requirements of Rule430A, and will notify the Representatives and the Selling Shareholder immediately, and confirm the notice in writing, (i)when any post-effective amendment to the Registration Statement or any new registration statement relating to the Securities shall become effective or any amendment or supplement to the General Disclosure Package or the Prospectus shall have been used or filed, as the case may be, in each case only as permitted by Section3 hereof, (ii)of the receipt of any comments from the Commission, (iii)of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the General Disclosure Package or the Prospectus, including any document incorporated by reference therein, or for additional information, (iv)of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or of the issuance of any order preventing or suspending the use of any preliminary prospectus or the Prospectus or any amendment or supplement thereto, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes or of any examination pursuant to Section8(d) or 8(e) of the 1933 Act concerning the Registration Statement and (v)if the Company becomes the subject of a proceeding under Section8A of the 1933 Act in connection with the offering of the Securities.The Company will effect all filings required under Rule424(b), in the manner and within the time period required by Rule424(b) (without reliance on Rule424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus.The Company will make every reasonable effort to prevent the issuance of any stop, prevention or suspension order and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment. 9 (b)Continued Compliance with Securities Laws.The Company will comply with the 1933 Act and the 1933 Act Regulations so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Registration Statement, the General Disclosure Package and the Prospectus.If at any time when a prospectus relating to the Securities is (or, but for the exception afforded by Rule172 of the 1933 Act Regulations (“Rule172”), would be) required by the 1933 Act to be delivered in connection with sales of the Securities any event shall occur or condition shall exist as a result of which it is necessary, in the opinion of counsel for the Underwriters, the Company or the Selling Shareholder, to (i)amend the Registration Statement in order that the Registration Statement will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii)amend or supplement the General Disclosure Package or the Prospectus in order that the General Disclosure Package or the Prospectus, as the case may be, will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser or (iii)amend the Registration Statement or amend or supplement the General Disclosure Package or the Prospectus, as the case may be, including, without limitation, any document incorporated therein by reference, in order to comply with the requirements of the 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations, the Company will promptly (A)give the Representatives and the Selling Shareholder written notice of such event or condition, (B)prepare any amendment or supplement as may be necessary to correct such statement or omission or to make the Registration Statement, the General Disclosure Package or the Prospectus comply with such requirements and, a reasonable amount of time prior to any proposed filing or use, furnish the Representatives and the Selling Shareholder with copies of any such amendment or supplement and (C)file with the Commission any such amendment or supplement and use its best efforts to have any amendment to the Registration Statement declared effective by the Commission as soon as possible if the Company is not eligible to file an automatic shelf registration statement at such time, provided that the Company shall not file or use any such amendment or supplement to which the Representatives, the Selling Shareholder or counsel for the Underwriters or the Selling Shareholder shall object. (c)Filing or Use of Amendments or Supplements.The Company has given the Representatives and the Selling Shareholder written notice of any filings made pursuant to the 1934 Act or 1934 Act Regulations within 48 hours prior to the Applicable Time and will give the Representatives and the Selling Shareholder written notice of its intention to file or use any amendment to the Registration Statement or any amendment or supplement to the General Disclosure Package or the Prospectus, whether pursuant to the 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations or otherwise, from the Applicable Time to the later of (i)the time when a prospectus relating to the Securities is no longer required by the 1933 Act (without giving effect to Rule172) to be delivered in connection with sales of the Securities and (ii)the Closing Time, and will furnish the Representatives and the Selling Shareholder with copies of any such amendment or supplement a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file or use any such amendment or supplement to which the Representatives, the Selling Shareholder or counsel for the Underwriters or the Selling Shareholder shall reasonably object. (d)Delivery of Registration Statement.The Company has furnished or will deliver to the Representatives and the Selling Shareholder and counsel for the Underwriters and the Selling Shareholder, without charge, signed copies of the Registration Statement as originally filed and each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference therein) and signed copies of all consents and certificates of experts, and will also deliver to the Representatives, without charge, a conformed copy of the Registration Statement as originally filed and each amendment thereto (without exhibits) for each of the Underwriters.The signed copies of the Registration Statement and each amendment thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T. (e)Delivery of Prospectuses.The Company has delivered to each Underwriter and the Selling Shareholder, without charge, as many copies of each preliminary prospectus as such Underwriter reasonably requested, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act.The Company will furnish to each Underwriter and the Selling Shareholder, without charge, during the period when a prospectus relating to the Securities is (or, but for the exception afforded by Rule172, would be) required by the 1933 Act to be delivered in connection withsales of the Securities, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter or the Selling Shareholder, as applicable, may reasonably request.The Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T. (f)Blue Sky Qualifications.The Company will use its best efforts, in cooperation with the Underwriters and the Selling Shareholder, to qualify the Securities for offering and sale under the applicable securities laws of such states and non-U.S. jurisdictions as the Representatives and the Selling Shareholder may designate and to maintain such qualifications in effect so long as required to complete the distribution of the Securities; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. (g)Earnings Statements.The Company will timely file such reports pursuant to the 1934 Act as are necessary in order to make generally available to its securityholders as soon as practicable an earnings statement for the purposes of, and to provide to the Underwriters the benefits contemplated by, the last paragraph of Section11(a) of the 1933 Act. (h)Restriction on Sale of Securities.During a period of 30 days from the date of this Agreement, the Company will not, without the prior written consent of the Representatives, (i)directly or indirectly, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of any shares of preferred stock or any securities convertible into or exercisable or exchangeable for preferred stock or file any registration statement under the 1933 Act with respect to any of the foregoing or (ii)enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of preferred stock, whether any such swap or transaction described in clause(i) or (ii)above is to be settled by delivery of preferred stock or such other securities, in cash or otherwise. 10 (i)Reporting Requirements.The Company, during the period when a prospectus relating to the Securities is (or, but for the exception afforded by Rule172, would be) required by the 1933 Act to be delivered in connection with sales of the Securities, will file all documents required to be filed with the Commission pursuant to the 1934 Act within the time periods required by, and each such document will meet the requirements of, the 1934 Act and 1934 Act Regulations. (j)Issuer Free Writing Prospectuses.The Company agrees that, unless it obtains the prior written consent of the Representatives and the Selling Shareholder, it will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus,” or a portion thereof, required to be filed by the Company with the Commission or retained by the Company under Rule433; provided that the Representatives and the Selling Shareholder will be deemed to have consented to the Issuer Free Writing Prospectuses listed on ScheduleC hereto and any “road show that is a written communication” within the meaning of Rule433(d)(8)(i) that has been reviewed by the Representatives and the Selling Shareholder.The Company represents that it has treated or agrees that it will treat each such free writing prospectus consented to, or deemed consented to, by the Representatives and the Selling Shareholder as an Issuer Free Writing Prospectus and that it has complied and will comply with the applicable requirements of Rule433 with respect thereto, including timely filing with the Commission where required, legending and record keeping.If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or condition as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement, any preliminary prospectus or the Prospectus or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Representatives and the Selling Shareholder in writing and will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission. (k)DTC.The Company will cooperate with the Underwriters and use its best efforts to permit the Securities to be eligible for clearance, settlement and trading through the facilities of The Depository Trust Company (“DTC”). SECTION 4.Covenants of the Selling Shareholder.The Selling Shareholder covenants and agrees with the Underwriters and the Company as follows: (a)No Free Writing Prospectuses.It has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus,” or portion thereof, required to be filed with the Commission without the prior written consent of the Representatives and the Company. (b)Restriction on Sale of Remaining Shares.During a period of 30 days from the date of this Agreement, the Selling Shareholder will not, without the prior written consent of the Representatives, (i)directly or indirectly, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of any shares of Preferred Stock that do not constitute Securities to be sold under this Agreement (the “Remaining Shares”) or exercise any right with respect to the registration of any of the Remaining Shares, or cause to be filed any registration statement in connection therewith, under the 1933 Act or (ii)enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Remaining Shares, whether any such swap or transaction described in clause(i) or (ii)above is to be settled by delivery of Preferred Stock or such other securities, in cash or otherwise; provided, however, that the foregoing restrictions shall not apply to any sales of the Remaining Shares by the Selling Shareholder to the Company. SECTION 5.Payment of Expenses. (a)Expenses.The Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including (i)the preparation, printing and filing of the Registration Statement (including financial statements and exhibits) as originally filed and each amendment thereto, (ii)the preparation, printing and delivery to the Underwriters of copies of each preliminary prospectus, each Issuer Free Writing Prospectus and the Prospectus and any amendments or supplements thereto and any costs associated with electronic delivery of any of the foregoing by the Underwriters to investors, (iii)the preparation, issuance and delivery of the certificates for the Securities to the Underwriters, including any stock or other transfer taxes and any stamp or other duties payable upon the sale, issuance or delivery of the Securities to the Underwriters, (iv)the fees and disbursements of the Company’s counsel, accountants and other advisors, (v)the qualification of the Securities under securities laws in accordance with the provisions of Section3(f) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Underwriters in connection therewith and in connection with the preparation of the Blue Sky Survey and any supplement thereto, (vi)the fees and expenses of any transfer agent or registrar for the Securities, (vii)the costs and expenses of the Company relating to investor presentations on any “road show” undertaken in connection with the marketing of the Securities, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations, travel and lodging expenses of the representatives and officers of the Company and any such consultants, and the cost of aircraft and other transportation chartered in connection with the road show, (viii)the filing fees incident to, and the reasonable fees and disbursements of counsel to the Underwriters in connection with, the review by FINRA, if required, of the terms of the sale of the Securities, (ix)the reasonable fees and expenses of counsel for the Selling Shareholder in an amount not to exceed $25,000, (x)the fees and expenses of making the Securities eligible for clearance, settlement and trading through the facilities of DTC, and (xi)the costs and expenses (including, without limitation, any damages or other amounts payable in connection with legal or contractual liability) associated with the reforming of any contracts for sale of the Securities made by the Underwriters caused by a breach of the representation contained in the second sentence of Section1(a)(ii). 11 (b)Termination of Agreement.If this Agreement is terminated by the Representatives in accordance with the provisions of Section6 or Section10(a)(i) or (iii)hereof, the Company shall reimburse the Underwriters for all of their out-of-pocket expenses, including the reasonable fees and disbursements of counsel for the Underwriters. (c)Other Agreement.The provisions of this Section5 shall not supersede or otherwise affect any agreement that the Company and the Selling Shareholder may otherwise have entered into for the allocation of such expenses between them. SECTION 6.Conditions of Underwriters’ Obligations.The obligations of the several Underwriters hereunder are subject to the accuracy of the representations and warranties contained herein or in certificates of any officer of the Company or any of its subsidiaries (including each Bank) or any representative of the Selling Shareholder delivered pursuant to the provisions hereof, to the performance by the Company of its covenants and other obligations hereunder, and to the following further conditions: (a)Effectiveness of Registration Statement, etc.Each of the Registration Statement and any post-effective amendment thereto has been declared effective by the Commission under the 1933 Act.Each preliminary prospectus (to the extent not included in the Registration Statement or any post-effective amendment thereto at the time of the related effectiveness), each Issuer Free Writing Prospectus and the Prospectus (which contains the Rule 430A Information) have been filed with the Commission pursuant to Rule424 (without reliance, in the case of the Prospectus, on Rule424(b)(8)) and Rule433, as applicable, within the time period prescribed by, and in compliance with, the 1933 Act Regulations or, in the case of the Prospectus, a post-effective amendment to the Registration Statement that includes the Rule 430A Information has been filed with, and declared effective by, the Commission in accordance with the requirements of Rule 430A.No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued under the 1933 Act, no order preventing or suspending the use of any preliminary prospectus or the Prospectus or any amendment or supplement thereto has been issued and no proceedings for any of those purposes have been instituted or are pending or, to the Company’s knowledge, contemplated.The Company has complied with each request (if any) from the Commission for additional information. (b)Opinion of Counsel for Company.At the Closing Time, the Representatives and the Selling Shareholder shall have received the favorable opinion, dated the Closing Time, of Varnum LLP, counsel for the Company, in form and substance satisfactory to the Representatives and the Selling Shareholder, together with signed or reproduced copies of such letter for each of the other Underwriters, to the effect set forth in ExhibitA hereto and to such further effect as counsel to the Representatives and the Selling Shareholder may reasonably request. (c)Opinion of Counsel for Underwriters.At the Closing Time, the Representatives shall have received the favorable opinion, dated the Closing Time, of[●],counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters, with respect to such matters as the Representatives may require.In giving such opinion, such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law of the State of New York and the federal securities laws of the United States, upon the opinions of counsel satisfactory to the Representatives.Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers and other representatives of the Company and its subsidiaries and certificates of public officials. (d)Officers’ Certificate.At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus, any Material Adverse Change, and the Representatives and the Selling Shareholder shall have received a certificate of the Chief Executive Officer or the President and of the chief financial or chief accounting officer of each of the Company and each Bank, dated the Closing Time, to the effect that (i)there has been no Material Adverse Change, (ii)the representations and warranties of the Company or each Bank, as the case may be, in this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (iii)the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Time, and (iv)the conditions specified in Section6(a) hereof have been satisfied. (e)Accountant’s Comfort Letters.At the time of the execution of this Agreement, the Representatives and the Selling Shareholder shall have received from Plante & Moran PLLC a letter or letters, dated such date, in form and substance satisfactory to the Representatives and the Selling Shareholder, together with signed or reproduced copies of such letter or letters for each of the other Underwriters, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters or selling shareholders, as applicable, with respect to the financial statements and financial information contained in the Registration Statement, the General Disclosure Package and the Prospectus. (f)Bring-down Comfort Letters.At the Closing Time, the Representatives and the Selling Shareholder shall have received from Plante & Moran PLLC a letter or letters, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter or letters furnished pursuant to Section6(e) hereof, except that the specified date referred to shall be a date not more than three business days prior to the Closing Time. (g)No Objection.FINRA has confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements relating to the offering of the Securities. (h)Maintenance of Rating.Since the execution of this Agreement, there shall not have been any decrease in or withdrawal of the rating of any securities of the Company or any of its subsidiaries (including each Bank) by any “nationally recognized statistical rating organization” (as defined for purposes of Section3(a)(62) of the 1934 Act) or any notice given of any intended or potential decrease in or withdrawal of any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. (i)Clearance, Settlement and Trading.Prior to the Closing Time, the Company, Registrar & Transfer Company (or another transfer agent acceptable to the Underwriters) and DTC shall have executed and delivered the Letter of Representations, dated the Closing Time, and the Securities shall be eligible for clearance, settlement and trading through the facilities of DTC. 12 (j)Additional Documents.At the Closing Time, counsel for the Underwriters shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company and each Bank in connection with this Agreement shall be satisfactory in form and substance to the Representatives and counsel for the Underwriters. (k)Termination of Agreement.If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Representatives by notice to the Company at any time at or prior to Closing Time, and such termination shall be without liability of any party to any other party except as provided in Section4 and except that Sections1, 7, 8, 9, 15, 16 and 17 shall survive any such termination and remain in full force and effect. SECTION 7.Indemnification. (a)Indemnification of Underwriters.The Company and each Bank, jointly and severally, agree to indemnify and hold harmless each Underwriter, its affiliates (as such term is defined in Rule501(b) of the 1933 Act Regulations (each, an “Affiliate”)), selling agents, partners, officers and directors, each person, if any, who controls any Underwriter within the meaning of Section15 of the 1933 Act or Section20 of the 1934 Act and the Selling Shareholder as follows: (i)against any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), including the Rule 430A Information, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included (A)in any preliminary prospectus, any Issuer Free Writing Prospectus, the General Disclosure Package or the Prospectus (or any amendment or supplement thereto) or (B)in any materials or information provided to investors by, or with the approval of, the Company in connection with the marketing of the offering of the Securities (“Marketing Materials”), including any roadshow or investor presentations made to investors by the Company (whether in person or electronically), or the omission or alleged omission in any preliminary prospectus, any Issuer Free Writing Prospectus, the General Disclosure Package or the Prospectus (or any amendment or supplement thereto) or in any Marketing Materials of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (ii)against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any Governmental Entity, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section7(d) hereof) any such settlement is effected with the written consent of the Company; (iii)against any and all expense whatsoever, as incurred (including the fees and disbursements of counsel chosen by the Representatives), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any Governmental Entity, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i)or (ii)above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in the Registration Statement (or any amendment thereto), including the Rule 430A Information, or in the General Disclosure Package or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with the Underwriter Information or the Selling Shareholder Information. (b)Indemnification of Company, Directors and Officers.Each Underwriter severally agrees to indemnify and hold harmless the Company, its directors, each of its officers who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section15 of the 1933 Act or Section20 of the 1934 Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in Section7(a) hereof, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), including the Rule 430A Information, or in the General Disclosure Package or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with the Underwriter Information. 13 (c)Actions against Parties; Notification.Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement.In case any such action is brought against any indemnified party and such indemnified party seeks or intends to seek indemnity from an indemnifying party, the indemnifying party will be entitled to participate in and, to the extent that it shall elect, jointly with all other indemnifying parties similarly notified, by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party; provided, however, if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that a conflict may arise between the positions of the indemnifying party and the indemnified party in conducting the defense of any such action or that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel to assume such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying party to such indemnified party of such indemnifying party’s election so to assume the defense of such action and approval by the indemnified party of counsel, the indemnifying party will not be liable to such indemnified party under this Section 7 for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof unless (i) the indemnified party shall have employed separate counsel in accordance with the proviso to the immediately preceding sentence (it being understood, however, that the indemnifying party shall not be liable for the expenses of more than one separate counsel (together with local counsel), approved by the indemnifying party (or by the Representatives in the case of Sections 7(b) and 8 hereof), representing the indemnified parties who are parties to such action) or (ii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of commencement of the action, in each of which cases the fees and expenses of counsel shall be at the expense of the indemnifying party.No indemnifying party shall, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any Governmental Entity, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section7 or Section8 hereof (whether or not the indemnified parties are actual or potential parties thereto), unless such settlement, compromise or consent (i)includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (ii)does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party. (d)Settlement without Consent if Failure to Reimburse.If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section7(a)(ii) effected without its written consent if (i)such settlement is entered into more than 45days after receipt by such indemnifying party of the aforesaid request, (ii)such indemnifying party shall have received notice of the terms of such settlement at least 30days prior to such settlement being entered into and (iii)such indemnifying party shall not have reimbursed such indemnified party in accordance with such request (other than those fees and expenses that are being contested in good faith) prior to the date of such settlement. (e)Exclusion.Notwithstanding the foregoing, the indemnification provided for in this Section7 and the contribution provided for in Section8 shall not apply to any Bank to the extent that such indemnification or contribution, as the case may be, by such Bank is found by any Regulatory Agency, or in a final judgment by a court of competent jurisdiction, to constitute a covered transaction under Section23A of the Federal Reserve Act. SECTION 8.Contribution.If the indemnification provided for in Section7 hereof is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, (i)in such proportion as is appropriate to reflect the relative benefits received by the Company, each Bank and the Selling Shareholder, on the one hand, and the Underwriters, on the other hand, from the offering of the Securities pursuant to this Agreement or (ii)if the allocation provided by clause(i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause(i) above but also the relative fault of the Company, each Bank and the Selling Shareholder, on the one hand, and the Underwriters, on the other hand, in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, each Bank and the Selling Shareholder, on the one hand, and the Underwriters, on the other hand, in connection with the offering of the Securities pursuant to this Agreement shall be deemed to be in the same respective proportions as the total net proceeds from the offering of the Securities pursuant to this Agreement (before deducting expenses) received by the Company, each Bank and the Selling Shareholder, on the one hand, and the total underwriting discount received by the Underwriters, on the other hand, in each case as set forth on the cover of the Prospectus, bear to the aggregate initial public offering price of the Securities as set forth on the cover of the Prospectus. The relative fault of the Company, each Bank and the Selling Shareholder, on the one hand, and the Underwriters, on the other hand, shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company, each Bank or the Selling Shareholder or by the Underwriters, as the case may be, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section8 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section8.The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section8 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any Governmental Entity, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission. 14 Notwithstanding the provisions of this Section8, no Underwriter shall be required to contribute any amount in excess of the underwriting discount received by such Underwriter in connection with the Securities underwritten by it and distributed to the public. No person guilty of fraudulent misrepresentation (within the meaning of Section11(f) of the 1933 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section8, each person, if any, who controls an Underwriter within the meaning of Section15 of the 1933 Act or Section20 of the 1934 Act and each Underwriter’s Affiliates, selling agents, partners, officers and directors shall have the same rights to contribution as such Underwriter, and each director of the Company, each officer of the Company who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section15 of the 1933 Act or Section20 of the 1934 Act shall have the same rights to contribution as the Company.The Underwriters’ respective obligations to contribute pursuant to this Section8 are several in proportion to the number of Securities set forth opposite their respective names in ScheduleA hereto and not joint. SECTION 9.Representations, Warranties and Agreements to Survive.All representations, warranties and agreements contained in this Agreement, or in certificates of officers of the Company or any of its subsidiaries (including each Bank) submitted pursuant hereto, shall remain operative and in full force and effect regardless of (i)any investigation made by or on behalf of any Underwriter or its Affiliates, partners, officers, directors and or selling agents, any person controlling any Underwriter or the Company’s officers or directors or any person controlling the Company or the Selling Shareholder or any representative of the Selling Shareholder and (ii)delivery of and payment for the Securities. SECTION 10.Termination of Agreement. (a)Termination.The Representatives may terminate this Agreement, by notice to the Company and the Selling Shareholder, at any time at or prior to the Closing Time, (i)if there has been, in the judgment of the Representatives, since the time of execution of this Agreement or since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus, any Material Adverse Change, or (ii)if there has occurred any material adverse change in the financial markets in the United States or the international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving a prospective change in national or international political, financial or economic conditions, in each case the effect of which is such as to make it, in the judgment of the Representatives, impracticable or inadvisable to proceed with the completion of the offering of the Securities or to enforce contracts for the sale of the Securities, or (iii)if trading in any securities of the Company has been suspended or materially limited by the Commission or the Nasdaq Global Select Market, or (iv)if trading generally on the New York Stock Exchange or in the Nasdaq Global Market has been suspended or materially limited, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices have been required, by any of said exchanges or by order of the Commission, FINRA or any other Governmental Entity, or (v) if a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States or with respect to Clearstream or Euroclear systems in Europe, or (vi)if a banking moratorium has been declared by either Federal, New York or Michigan authorities. (b)Liabilities.If this Agreement is terminated pursuant to this Section, such termination shall be without liability of any party to any other party except as provided in Section5 hereof, and provided further that Sections1, 7, 8, 9, 15, 16 and 17 shall survive such termination and remain in full force and effect. SECTION 11.Default by One or More of the Underwriters.If one or more of the Underwriters shall fail at the Closing Time to purchase the Securities which it or they are obligated to purchase under this Agreement (the “Defaulted Securities”), the Representatives shall have the right, within 36hours thereafter, to make arrangements for one or more of the non-defaulting Underwriters, or any other underwriters, to purchase all, but not less than all, of the Defaulted Securities in such amounts as may be agreed upon and upon the terms herein set forth; if, however, the Representatives shall not have completed such arrangements within such 36-hour period, then: (i)if the number of Defaulted Securities does not exceed 10% of the number of Securities to be purchased on such date, each of the non-defaulting Underwriters shall be obligated, severally and not jointly, to purchase the full amount thereof in the proportions that their respective underwriting obligations hereunder bear to the underwriting obligations of all non-defaulting Underwriters, or (ii)if the number of Defaulted Securities exceeds 10% of the number of Securities to be purchased on such date, this Agreement shall terminate without liability on the part of any non-defaulting Underwriter. No action taken pursuant to this Section11 shall relieve any defaulting Underwriter from liability in respect of its default. In the event of any such default which does not result in a termination of this Agreement, either the Representatives or the Selling Shareholder shall have the right to postpone Closing Time for a period not exceeding seven days in order to effect any required changes in the Registration Statement, the General Disclosure Package or the Prospectus or in any other documents or arrangements.As used herein, the term “Underwriter” includes any person substituted for an Underwriter under this Section11. SECTION 12.Notices.All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted by any standard form of telecommunication.Notices to the Underwriters shall be directed to the Representatives care of ● at ●, and ● at ●; notices to the Company and all of the Banks shall be directed to it at Firstbank Corporation, 311 Woodworth Avenue, Alma, Michigan 48801, Attention:Chief Executive Officer, with a copy to Varnum LLP, 333 Bridge Street, N.W., Suite 1700, Grand Rapids, Michigan 49504, Attention:Harvey Koning; and notices to the Selling Shareholder shall be directed to it at 1500 Pennsylvania Avenue, N.W., Washington, D.C.20220, Attention:Chief Counsel, Office of Financial Stability, facsimile number (202)927-9225. 15 SECTION 13.No Advisory or Fiduciary Relationship.Each of the Company and each Bank acknowledges and agrees that (a)the purchase and sale of the Securities pursuant to this Agreement, including the determination of the initial public offering price of the Securities and any related discounts and commissions, is an arm’s-length commercial transaction between the Company and each Bank, on the one hand, and the several Underwriters, on the other hand, (b)in connection with the offering of the Securities and the process leading thereto, each Underwriter is and has been acting solely as a principal and is not the agent or fiduciary of the Company or any of its subsidiaries or any of their respective stockholders, creditors or employees or any other party, (c)no Underwriter has assumed or will assume an advisory or fiduciary responsibility in favor of the Company or any of its subsidiaries, including each Bank, with respect to the offering of the Securities or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company or any of its subsidiaries, including each Bank, on other matters) or any other obligation to the Company or any of its subsidiaries, including each Bank, with respect to the offering of the Securities except the obligations expressly set forth in this Agreement, (d)the Underwriters and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Company and each Bank, and (e)the Underwriters have not provided any legal, accounting, financial, regulatory or tax advice with respect to the offering of the Securities and each of the Company and each Bank has consulted its own respective legal, accounting, financial, regulatory and tax advisors to the extent it deemed appropriate. SECTION 14.Parties.This Agreement shall inure to the benefit of and be binding upon the Underwriters, the Company, each Bank and the Selling Shareholder and their respective successors.Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm or corporation, other than the Underwriters, the Company, each Bank and the Selling Shareholder and their respective successors and the controlling persons, Affiliates, selling agents, officers and directors referred to in Sections7 and 8 and their heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision herein contained.This Agreement and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of the Underwriters, the Company, each Bank and the Selling Shareholder and their respective successors, and said controlling persons, Affiliates, selling agents, officers and directors and their heirs and legal representatives, and for the benefit of no other person, firm or corporation.No purchaser of Securities from any Underwriter shall be deemed to be a successor by reason merely of such purchase. SECTION 15.Trial by Jury.Each of the parties hereto other than the Selling Shareholder (on its behalf and, to the extent permitted by applicable law, on behalf of its stockholders and affiliates) hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby. SECTION 16.GOVERNING LAW.THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF, THE STATE OF NEW YORK WITHOUT REGARD TO ITS CHOICE OF LAW PROVISIONS (OTHER THAN SECTION 5-1), PROVIDED THAT ALL RIGHTS AND OBLIGATIONS OF THE SELLING SHAREHOLDER UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE FEDERAL LAWS OF THE UNITED STATES OF AMERICA. SECTION 17.Consent to Jurisdiction.Each of the parties hereto other than the Selling Shareholder agrees that any legal suit, action or proceeding arising out of or based upon this Agreement or the transactions contemplated hereby (“Related Proceedings”) shallbe instituted in (i)the federal courts of the United States of America located in the City and County of New York, Borough of Manhattan or(ii)the courts of the State of New York located in the City and County of New York, Borough of Manhattan (collectively, the “Specified Courts”), and irrevocably submits to the exclusive jurisdiction (except for proceedings instituted in regard to the enforcement of a judgment of any Specified Court (a “Related Judgment”), as to which such jurisdiction is non-exclusive) of the Specified Courts in any such suit, action or proceeding.Service of any process, summons, notice or document by mail to such party’s address set forth above shall be effective service of process for any suit, action or proceeding brought in any Specified Court.Each of the parties hereto irrevocably and unconditionally waives any objection to the laying of venue of any suit, action or proceeding in the Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim in any Specified Court that any such suit, action or proceeding brought in any Specified Court has been brought in an inconvenient forum. SECTION 18.TIME.TIME SHALL BE OF THE ESSENCE OF THIS AGREEMENT.EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME. SECTION 19.Counterparts.This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same Agreement. SECTION 20.Effect of Headings.The Section headings herein are for convenience only and shall not affect the construction hereof. 16 If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Underwriters, the Company, each Bank and the Selling Shareholder in accordance with its terms. Very truly yours, FIRSTBANK CORPORATION By: Name:Thomas R. Sullivan Title:President and Chief Executive Officer FIRSTBANK-ALMA By: Name: Title: FIRSTBANK (MT. PLEASANT) By: Name: Title: FIRSTBANK-WEST BRANCH By: Name: Title: KEYSTONE COMMUNITY BANK By: Name: Title: 17 FIRSTBANK-WEST MICHIGAN By: Name: Title: UNITED STATES DEPARTMENT OF THE TREASURY, as Selling Shareholder By: Name: Title: CONFIRMED AND ACCEPTED, as of the date first above written: ● ● By:● By: Authorized Signatory By:● By: Name: Title: For themselves and as Representatives of the other Underwriters named in ScheduleA hereto. 18 SCHEDULE A The purchase price per share for the Securities to be paid by the several Underwriters shall be $●, being an amount equal to the initial public offering price set forth in Schedule B less $● per share. Name of Underwriter Number of Securities ● ● Total Sch A SCHEDULE B 1. The initial public offering price per share for the Securities shall be $●. 2. The number of Securities to be sold by the Selling Shareholder shall be 33,000 3. The settlement date / Closing Time shall be ●. Sch B SCHEDULE C Issuer Free Writing Prospectuses 1.[SPECIFY EACH ISSUER GENERAL USE FREE WRITING PROSPECTUS] Sch C
UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C.20549 FORM 8-A/A (Amendment No. 1) FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES PURSUANT TO SECTION 12(b) OR (g) OF THE SECURITIES EXCHANGE ACT OF 1934 HERTZ GLOBAL HOLDINGS, INC. (Exact name of registrant as specified in its charter) Delaware 20-3530539 (State or other jurisdiction of incorporation) (IRS Employer Identification Number) 999 Vanderbilt Beach Road, 3rd Floor Naples, Florida (Address of principal executive offices) (Zip Code) Securities to be registered pursuant to Section 12(b) of the Act: Title of Each Class to be so Registered Name of Each Exchange on Which Each Class is to be Registered Preferred Stock Purchase Rights New York Stock Exchange If this form relates to the registration of a class of securities pursuant to Section 12(b) of the Exchange Act and is effective pursuant to General Instruction A.(c), check the following box. x If this form relates to the registration of a class of securities pursuant to Section 12(g) of the Exchange Act and is effective pursuant to General Instruction A.(d), check the following box. o Securities to be registered pursuant to Section 12(g) of the Act: None. Securities Act registration statement file number to which this form relates : N/A (If applicable) EXPLANATORY NOTE This Amendment No. 1 to the Registrant’s Registration Statement on Form 8-A/A is being filed to reflect an amendment to the Rights Agreement (the “Rights Agreement”), dated as of December 30, 2013, between Hertz Global Holdings, Inc. (the “Company”) and Computershare Trust Company, N.A., as Rights Agent (the “Rights Agent”). Item 1. Description of Registrant’s Securities to be Registered. On September 15, 2014, the Company executed an amendment (the “Amendment”) to the Rights Agreement.The Amendment (1) increases the ownership threshold for a person to become an “Acquiring Person” and trigger consequences under the Rights Agreement to 20% for all acquirers and (2) adds “qualifying offer” provisions, whereby the Rights (as defined in the Rights Agreement) will automatically expire concurrently with (but no earlier than 100 days after the commencement of such qualifying offer) the purchase of 50% (including any shares held by the offeror) of the Company’s outstanding common stock on a fully diluted basis pursuant to a tender or exchange offer (which meets certain conditions set forth in the Amendment) for all of the outstanding shares of Company common stock at the same price and for the same consideration, provided that the offeror irrevocably commits to purchase all remaining untendered shares at the same price and the same consideration actually paid pursuant to the offer. The foregoing is a summary of the terms of the Amendment.The summary does not purport to be complete and is qualified in its entirety by reference to the Amendment, a copy of which is attached as Exhibit 4.1 and incorporated herein by reference. Item 2. Exhibits. 1. Certificate of Designation of Series A Junior Participating Preferred Stock of Hertz Global Holdings, Inc. (incorporated by reference to Exhibit 3.1 of the Current Report on Form 8-K dated December 30, 2013 of Hertz Global Holdings, Inc.). 2. Rights Agreement, dated as of December 30, 2013, between Hertz Global Holdings, Inc. and Computershare Trust Company, N.A., as Rights Agent (incorporated by reference to Exhibit 4.1 of the Current Report on Form 8-K dated December 30, 2013 of Hertz Global Holdings, Inc.). 3. Amendment No. 1 to Rights Agreement, dated as of September 15, 2014, between Hertz Global Holdings, Inc. and Computershare Trust Company, N.A., as Rights Agent (incorporated by reference to Exhibit 4.1 of the Registrant’s Current Report on Form 8-K filed on September 16, 2014. SIGNATURES Pursuant to the requirements of Section 12 of the Securities Exchange Act of 1934, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereto duly authorized. Date: September 16, 2014 HERTZ GLOBAL HOLDINGS, INC. By: /s/J. Jeffrey Zimmerman Name: J. Jeffrey Zimmerman Title: Executive Vice President, General Counsel and Secretary
EXHIBIT 10.1THIS PRIVATE PLACEMENT SUBSCRIPTION AGREEMENT (THE “SUBSCRIPTION AGREEMENT”) RELATES TO AN OFFERING OF SECURITIES IN AN OFFSHORE TRANSACTION TO PERSONS WHO ARE NOT U.S. PERSONS (AS DEFINED HEREIN) PURSUANT TO REGULATIONS UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE“1933 ACT”). NONE OF THE SECURITIES TO WHICH THIS SUBSCRIPTION AGREEMENT RELATES HAVE BEEN REGISTERED UNDER THE 1, UNLESS SO REGISTERED, NONE MAY BE OFFERED OR SOLD, DIRECTLY OR INDIRECTLY, IN THE UNITED STATES OR TO U.S. PERSONS (AS DEFINED HEREIN) EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF REGULATION S UNDER THE 1933 ACT, PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933 ACT, OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE 1, HEDGING TRANSACTIONS INVOLVING THE SECURITIES MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE 1933 ACT.PRIVATE PLACEMENT SUBSCRIPTIONOFFSHORE SUBSCRIBERS OUTSIDE THE UNITED STATES ONLYMAGICSTEM GROUP CORP. INSTRUCTIONS TO SUBSCRIBER:1. COMPLETE the information on Page2 of this Subscription Agreement. You must reside outside NorthAmerica to use this form.2. PAYMENT of the subscription price must be paid by check, bank draft or wire transfer to the Company.3. EMAIL an executed copy of this Subscription Agreement to . MAGICSTEM GROUP CORP. PRIVATE PLACEMENT SUBSCRIPTION AGREEMENTThe undersigned (the “Subscriber”) hereby irrevocably subscribes for and agrees to purchase from Magicstem Group Corp. (the“Issuer”) that number of common shares of the Issuer (the “Shares”) set out below at a price of US$0.005 per Share. Subscriber Information Shares to be PurchasedNumber of Shares: (Name of Subscriber)Account Reference (if applicable): Aggregate Subscription Price: X (the “Subscription Proceeds”)(Signature of Subscriber – if the Subscriber is an Individual)X (Signature of Authorized Signatory – if the Subscriber is not an Individual)Please complete if purchasing as agent or trustee for a principal (beneficial purchaser) (a “Disclosed Principal”) and not purchasing as trustee or agent for accounts fully managed by it.(Name and Title of Authorized Signatory – if the Subscriber is not an Individual)(Name of Disclosed Principal)(SIN, SSN, or other Tax Identification Number of the Subscriber)(Address of Disclosed Principal)(Subscriber’s Address, including city and province or state or residence)(Account Reference, if applicable)(SIN, SSN, or other Tax Identification Number of Disclosed Principal)(Telephone Number)(Email Address)Register the Shares as set forth below:Deliver the Shares as set forth below:(Name to Appear on Share Certificate)(Attention - Name)(Account Reference, if applicable)(Account Reference, if applicable)(Address, including Postal Code)(Address, including Postal Code)(Telephone Number) - 2 -ACCEPTANCEThe Issuer hereby accepts the subscription as set forth above on the terms and conditions contained in this Subscription Agreement. as of the day of October, 2016. MAGICSTEM GROUP CORP.Per: Chi Man Ng, CEO, President, and Director - 3 -TERMS AND CONDITIONS OF SUBSCRIPTION FOR SHARES Purchase of Shares 1.SUBSCRIPTION1.1The Subscriber hereby irrevocably subscribes for and agrees to purchase Shares in the amount set out on Page 2 of this Subscription Agreement, at a price of US$0.005 per Share (such subscription and agreement to purchase being the “Subscription”), for the Subscription Proceeds, which Subscription Proceeds are tendered herewith, on the basis of the representations and warranties and subject to the terms and conditions set forth herein.1.2The Shares are also referred to herein as the “Securities”.1.3The Company hereby agrees to sell the Shares to the Subscriber on the basis of the representations and warranties and subject to the terms and conditions set forth herein. Subject to the terms hereof, the Subscription Agreement will be effective upon its acceptance by the Company.1.4Unless otherwise provided, all dollar amounts referred to in this Subscription Agreement are in lawful money of the United States of America.2.PAYMENT2.1The Subscription Proceeds must be wired to Magicstem Group Corp. on the Closing Date (as defined herein).2.2The Subscriber must complete, sign and return to the Company an executed copy of this Subscription Agreement.2.3The Subscriber shall complete, sign and return to the Company as soon as possible, on request by the Company, any documents, questionnaires, notices and undertakings as may be required by regulatory authorities, stock exchanges and/or applicable law.3.CLOSINGClosing of the purchase and sale of the Shares shall occur on the date note more than 30 days from the execution of this Subscription Agreement by the Subscriber and the Company (the “Closing Date”).4.ACKNOWLEDGEMENTS OF SUBSCRIBERThe Subscriber acknowledges and agrees that: (a)the Securities have not been registered under the U.S. Securities Act of 1933, as amended (the “1933 Act”), or under any securities or “blue sky” laws of any state of the United States and are being offered only in a transaction not involving any public offering within the meaning of the 1933 Act, and, unless so registered, may not be offered or sold in the United States or to a U.S. Person, as that term is defined in Regulation “S” (“Regulation S”) promulgated by the Securities and Exchange Commission (the “SEC”) pursuant to the 1933 Act, except in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act, or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the 1933 Act, and in each case only in accordance with applicable state securities laws;(b)the Company will refuse to register any transfer of any of the Securities not made in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act or pursuant to an available exemption from, or in a transaction not subject to, the registration requirements of the 1933 Act; - 4 - (c)the decision to execute this Subscription Agreement and purchase the Shares has not been based upon any oral or written representation as to fact or otherwise made by or on behalf of the Company and such decision is based solely upon information provided by the Company in this Subscription Agreement (the “Company Information”).(d)the Subscriber and the Subscriber’s advisor(s) have had a reasonable opportunity to review the Company Information and to ask questions of and receive answers from the Company regarding the offering, and to obtain additional information, to the extent possessed or obtainable without unreasonable effort or expense, necessary to verify the accuracy of the information contained in the Company Information, or any other document provided to the Subscriber;(e)by execution hereof the Subscriber has waived the need for the Company to communicate its acceptance of the purchase of the Securities pursuant to this Subscription Agreement;(f)the Company is entitled to rely on the representations and warranties and the statements and answers of the Subscriber contained in this Subscription Agreement and the Subscriber will hold harmless the Company from any loss or damage it may suffer as a result of the Subscriber’s failure to correctly complete this Subscription Agreement;(g)the Subscriber will indemnify and hold harmless the Company and, where applicable, its respective directors, officers, employees, agents, advisors and shareholders from and against any and all loss, liability, claim, damage and expense whatsoever (including, but not limited to, any and all fees, costs and expenses whatsoever reasonably incurred in investigating, preparing or defending against any claim, lawsuit, administrative proceeding or investigation whether commenced or threatened) arising out of or based upon any acknowledgment, representation or warranty of the Subscriber contained herein or in any other document furnished by the Subscriber to the Company in connection herewith, being untrue in any material respect or any breach or failure by the Subscriber to comply with any covenant or agreement made by the Subscriber to the Company in connection therewith;(h)the issuance and sale of the Shares to the Subscriber will not be completed if it would be unlawful or if, in the discretion of the Company acting reasonably, it is not in the best interests of the Company;(i)the Subscriber has been advised to consult the Subscriber’s own legal, tax and other advisors with respect to the merits and risks of an investment in the Securities and with respect to the applicable resale restrictions, and it is solely responsible (and the Company is not in any way responsible) for compliance with: (i)any applicable laws of the jurisdiction in which the Subscriber is resident in connection with the distribution of the Securities hereunder, and(ii)applicable resale restrictions; (j)the Subscriber has not acquired the Shares as a result of, and will not itself engage in, any “directed selling efforts” (as defined in Regulation S) in the United States in respect of any of the Securities which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the Securities; provided, however, that the Subscriber may sell or otherwise dispose of any of the Securities pursuant to registration of any of the Securities pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein; - 5 - (k)the Subscriber is not a U.S. Person (as defined in Regulation S), is outside the United States when receiving and executing this Subscription Agreement and is acquiring the Shares as principal for its own account or for account of the Disclosed Principal, as applicable, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalization thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Shares, other than the Disclosed Principal, if applicable; (l)the statutory and regulatory basis for the exemption claimed for the offer and sale of the Shares, although in technical compliance with Regulation S, would not be available if the offering is part of a plan or scheme to evade the registration provisions of the 1933 Act;(m)the Company has advised the Subscriber that the Company is relying on an exemption from the requirements to provide the Subscriber with a prospectus and to sell the Shares through a person registered to sell securities and, as a consequence of acquiring the Securities pursuant to this exemption, certain protections, rights and remedies, including statutory rights of rescission or damages, will not be available to the Subscriber;(n)the Subscriber acknowledges that the Company has not undertaken, and will have no obligation, to register any of the Securities under the 1933 Act, except as set out in this Agreement;(o)neither the SEC, nor any other securities regulatory authority has reviewed or passed on the merits of the Securities;(p)no documents in connection with this offering have been reviewed by the SEC, nor by any other securities regulatory authority or state securities administrators;(q)there is no government or other insurance covering any of the Securities; and(r)this Subscription Agreement is not enforceable by the Subscriber unless it has been accepted by the Company, and the Subscriber acknowledges and agrees that the Company reserves the right to reject any subscription for any reason. 5.REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SUBSCRIBER5.1The Subscriber hereby represents and warrants to and covenants with the Company, as of the date of this Agreement and as of the Closing Date (which representations, warranties and covenants shall survive the Closing Date) that: (a)the Subscriber is purchasing the Shares as principal for its own account and not for the benefit of any other person;(b)the Subscriber is outside the United States when receiving and executing this Subscription Agreement;(c)the Subscriber is not a “U.S. Person”, as defined in Regulation S;(d)the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person, as defined in Regulation S;(e)the Subscriber is resident in the jurisdiction set out on Page 2 of this Subscription Agreement;(f)the Subscriber: (i)is knowledgeable of, or has been independently advised as to, the applicable securities laws of the securities regulators having application in the jurisdiction in which the Subscriber is resident (the “International Jurisdiction”) which would apply to the acquisition of the Shares, - 6 - (ii)is purchasing the Shares pursuant to exemptions from prospectus or equivalent requirements under applicable securities laws or, if such is not applicable, the Subscriber is permitted to purchase the Shares under the applicable securities laws of the securities regulators in the International Jurisdiction without the need to rely on any exemptions,(iii)acknowledges that the applicable securities laws of the authorities in the International Jurisdiction do not require the Company to make any filings or seek any approvals of any kind whatsoever from any securities regulator of any kind whatsoever in the International Jurisdiction in connection with the issue and sale or resale of the Shares,(iv)represents and warrants that the acquisition of the Shares by the Subscriber does not trigger: A.any obligation to prepare and file a prospectus or similar document, or any other report with respect to such purchase in the International Jurisdiction, orB.any continuous disclosure reporting obligation of the Company in the International Jurisdiction, and (v)the Subscriber will, if requested by the Company, deliver to the Company a certificate or opinion of local counsel from the International Jurisdiction which will confirm the matters referred to in subparagraphs (ii), (iii) and (iv) above to the satisfaction of the Company, acting reasonably; (g)the Subscriber is acquiring the Shares as principal, or for account of the Disclosed Principal, as applicable, and for investment only and not with a view to, or for, resale, distribution or fractionalization thereof, in whole or in part, and, in particular, it, or the Disclosed Principal, has no intention to distribute either directly or indirectly any of the Securities in the United States or to U.S. Persons (as defined in Regulation S);(h)the Subscriber acknowledges that it has not acquired the Shares as a result of, and will not itself engage in, any “directed selling efforts” (as defined in Regulation S) in the United States in respect of any of the Securities which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the Securities; provided, however, that the Subscriber may sell or otherwise dispose of any of the Securities pursuant to registration of any of the Securities pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein;(i)the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation and all necessary approvals by its directors, shareholders and others have been obtained to authorize execution and performance of this Subscription Agreement on behalf of the Subscriber;(j)the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to, or, if applicable, the constating documents of, the Subscriber, or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;(k)the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber; - 7 - (l)the Subscriber has received and carefully read this Subscription Agreement;(m)the Subscriber (i) has adequate net worth and means of providing for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investment, and (iii) is able to bear the economic risks of an investment in the Shares for an indefinite period of time, and can afford the complete loss of such investment;(n)the Subscriber is able to fend for itself in the subscription, has the degree of knowledge, education and experience in financial and business matters as to enable the Subscriber to evaluate the merits and risks of the investment in the Shares and the Company;(o)the Subscriber understands and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgements, representations, warranties, covenants and agreements contained in this Subscription Agreement, and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Subscriber shall promptly notify the Company;(p)the Subscriber is aware that an investment in the Company is speculative and involves certain risks, including the possible loss of the investment;(q)the Subscriber is not an underwriter of, or dealer in, the Company’s Securities, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;(r)the Subscriber has made an independent examination and investigation of an investment in the Shares and the Company and has depended on the advice of its legal and financial advisors and agrees that the Company will not be responsible in anyway whatsoever for the Subscriber’s decision to invest in the Shares and the Company;(s)if the Subscriber is acquiring the Shares as a fiduciary or agent for one or more investor accounts, the Subscriber has sole investment discretion with respect to each such account, and the Subscriber has full power to make the foregoing acknowledgements, representations and agreements on behalf of such account;(t)the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and(u)no person has made to the Subscriber any written or oral representations: (i)that any person will resell or repurchase any of the Securities, (ii)that any person will refund the purchase price of any of the Securities, or(iii)as to the future price or value of any of the Securities. 5.2In this Subscription Agreement, the term “U.S. Person” shall have the meaning ascribed thereto in Regulation S promulgated under the 1933 Act and for the purpose of the Subscription Agreement includes any person in the United States. - 8 - 6.ACKNOWLEDGEMENT AND WAIVERThe Subscriber has acknowledged that the decision to purchase the Shares was made based solely on the Company Information. The Subscriber hereby waives, to the fullest extent permitted by law, any rights of withdrawal, rescission or compensation for damages to which the Subscriber might be entitled in connection with the distribution of any of the Securities. Because the Subscriber is not purchasing the Shares under a prospectus, the Subscriber will not have the civil protections, rights and remedies that would otherwise be available to the Subscriber under the securities laws in United States, including statutory rights of rescission or damages. 7.REPRESENTATIONS AND WARRANTIES WILL BE RELIED UPON BY THE COMPANYThe Subscriber acknowledges that the acknowledgements, representations and warranties contained herein are made by it with the intention that they may be relied upon by the Company and its legal counsel in determining the Subscriber’s eligibility to purchase the Shares under applicable securities legislation, or (if applicable) the eligibility of others on whose behalf it is contracting hereunder to purchase the Shares under applicable securities legislation. The Subscriber further agrees that by accepting delivery of the certificates representing the Securities, it will be representing and warranting that the acknowledgements representations and warranties contained herein are true and correct as of the date hereof and the date of delivery and will continue in full force and effect notwithstanding any subsequent disposition by the Subscriber of all of the Securities. 8.RESALE RESTRICTIONS 8.1The Subscriber acknowledges that any resale of any of the Securities will be subject to resale restrictions contained in the securities legislation applicable to the Subscriber or proposed transferee. The Subscriber acknowledges that none of the Securities have been registered under the 1933 Act or the securities laws of any state of the United States. The Securities may not be offered or sold in the United States unless registered in accordance with federal securities laws and all applicable state securities laws or exemptions from such registration requirements are available.8.2The Subscriber acknowledges that restrictions on the transfer, sale or other subsequent disposition of the Securities by the Subscriber may be imposed by securities laws in addition to any restrictions referred to in Section above, and, in particular, the Subscriber acknowledges and agrees that none of the Securities may be offered or sold to a U.S. Person or for the account or benefit of a U.S. Person (other than a distributor) prior to the end of the Distribution Compliance Period. 9.ACKNOWLEDGEMENT AND WAIVERThe Subscriber has acknowledged that the decision to purchase the Securities was solely made on the basis of information concerning the Company that was available to the Subscriber on the EDGAR database maintained by the SEC at www.sec.gov 10.LEGENDING OF SUBJECT SECURITIES10.1The Subscriber hereby acknowledges that that upon the issuance thereof, and until such time as the same is no longer required under the applicable securities laws and regulations, the certificates representing any of the Securities will bear a legend in substantially the following form:“THESE SECURITIES WERE ISSUED IN AN OFFSHORE TRANSACTION TO PERSONS WHO ARE NOT U.S. PERSONS (AS DEFINED IN REGULATION S UNDER THE 1933 ACT) PURSUANT TO REGULATIONS UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”). ACCORDINGLY, NONE OF THE SECURITIES TO WHICH THIS CERTIFICATE RELATES HAVE BEEN REGISTERED UNDER THE 1933 ACT, OR ANY U.S. STATE SECURITIES LAWS, AND, UNLESS SO REGISTERED, NONE MAY BE OFFERED OR SOLD IN THE UNITED STATES OR, DIRECTLY OR INDIRECTLY, TO U.S. PERSONS EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF REGULATION S UNDER THE 1933 ACT, PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE 1, HEDGING TRANSACTIONS INVOLVING THE SECURITIES MAY NOT BE CONDUCTED UNLESS IN ACCORDANCE WITH THE 1933 ACT.” - 9 - 10.2The Subscriber hereby acknowledges and agrees to the Company making a notation on its records or giving instructions to the registrar and transfer agent of the Company in order to implement the restrictions on transfer set forth and described in this Subscription Agreement.11.COSTSThe Subscriber acknowledges and agrees that all costs and expenses incurred by the Subscriber (including any fees and disbursements of any special counsel retained by the Subscriber) relating to the purchase of the Shares shall be borne by the Subscriber. 12.GOVERNING LAWThis Subscription Agreement is governed by the laws of the State of Nevada. The Subscriber, in its personal or corporate capacity and, if applicable, on behalf of each beneficial purchaser for whom it is acting, irrevocably attorns to the exclusive jurisdiction of the Courts of the State of Nevada. 13.SURVIVALThis Subscription Agreement, including without limitation the representations, warranties and covenants contained herein, shall survive and continue in full force and effect and be binding upon the parties hereto notwithstanding the completion of the purchase of the Shares by the Subscriber pursuant hereto. 14.ASSIGNMENTThis Subscription Agreement is not transferable or assignable. 15.SEVERABILITYThe invalidity or unenforceability of any particular provision of this Subscription Agreement shall not affect or limit the validity or enforceability of the remaining provisions of this Subscription Agreement. 16.ENTIRE AGREEMENTExcept as expressly provided in this Subscription Agreement and in the agreements, instruments and other documents contemplated or provided for herein, this Subscription Agreement contains the entire agreement between the parties with respect to the sale of the Shares and there are no other terms, conditions, representations or warranties, whether expressed, implied, oral or written, by statute or common law, by the Company or by anyone else. 17.NOTICESAll notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted by any standard form of telecommunication. Notices to the Subscriber shall be directed to the delivery address on Page 2 and notices to the Company shall be directed to it at the address stated on the first page of this Subscription Agreement. - 10 - 18.COUNTERPARTS AND ELECTRONIC MEANSThis Subscription Agreement may be executed in any number of counterparts, each of which, when so executed and delivered, shall constitute an original and all of which together shall constitute one instrument. Delivery of an executed copy of this Subscription Agreement by electronic facsimile transmission or other means of electronic communication capable of producing a printed copy will be deemed to be execution and delivery of this Subscription Agreement as of the date hereinafter set forth. - 11 -
EXHIBIT 99 NEWTON FEDERAL BANK ANNOUNCES CLOSING OF STOCK OFFERING AND COMPLETION OF REORGANIZATION TRANSACTION Covington, Georgia, April 27, 2017 — Newton Federal Bank (the “Bank”) announced that it has completed its reorganization, effective today, into the mutual holding company structure and the related stock offering of Community First Bancshares, Inc. (the “Company”), the Bank’s new holding company.As a result of the reorganization, the Bank has become a wholly-owned subsidiary of the Company, the Company has issued and sold 46% of its outstanding shares to subscribers in the stock offering, including the Bank’s ESOP, and the Company has issued 54% of its outstanding shares to Community First Bancshares, MHC, the Company’s federally-chartered mutual holding company. The Company’s common stock is expected to trade on the Nasdaq Capital Market under the trading symbol “CFBI” beginning on Friday, April 28, 2017. Johnny Smith, the Bank’s President and Chief Executive Officer, said, “We want to thank our customers and our employees for their support and vote of confidence in the future of the Bank. Our customers, employees and community have all been the key to Newton Federal’s enduring history of success and the Bank and the Company will remain committed to their customers, employees, community and shareholders going forward.” BSP Securities, LLC, acted as marketing agent in the stock offering and served as financial advisor to the Company and the Bank in connection with the reorganization and stock offering.Luse Gorman, PC, acted as legal counsel to the Company and the Bank in connection with the reorganization and stock offering. Silver, Freedman, Taff & Tiernan LLP acted as legal counsel to BSP Securities, LLC in connection with the reorganization and stock offering. Newton Federal Bank is a federally-chartered savings bank serving the financial needs of its customers located in Newton County, Georgia and the contiguous counties.Newton Federal Bank conducts business from its corporate headquarters and main office and two branch offices in Covington, Georgia.Newton Federal Bank also has a loan production office located in Bogart, Georgia and anticipates opening a loan production office in Braselton, Georgia by the end of the second quarter of 2017. This press release contains certain forward-looking statements about the reorganization and stock offering.Forward-looking statements include statements regarding anticipated future events and can be identified by the fact that they do not relate strictly to historical or current facts.They often include words such as “believe,” “expect,” “anticipate,” “estimate,” and “intend” or future or conditional verbs such as “will,” “would,” “should,” “could,” or “may”.Forward-looking statements, by their nature, are subject to risks and uncertainties.Certain factors that could cause actual results to differ materially from expected results include delays in consummation of the offering, increased competitive pressures, changes in the interest rate environment, general economic conditions or conditions within the securities markets, and legislative and regulatory changes that could adversely affect the business in which the Company and the Bank are engaged. The shares of common stock are not savings accounts or savings deposits, may lose value and are not insured by the Federal Deposit Insurance Corporation or any other government agency. For more information please contact: Johnny S. Smith President and Chief Executive Officer, Newton Federal Bank (770) 786-7088
Title: Kid claimed he was a Salesperson for a Spa and Sold me fake services Question:Hi reddit lawyers and legal advisors, So Last month (December 9th) to be exact, a young gentlemen came in my Real Estate office and posed himself as a Salesperson for a Spa. He offered a package deal of 2 massage and 2 facials for 40 $. He seemed really genuine and gave me the rundown of how his mom was opening up a new spa in the area and this was only a limited time offer to get people into the door. The Spa in question was supposed to be open the 1st of January. I bought 2 packages, one my Fiance and one for me. We've been driving by the location that he said it was going to be open and this place is nowhere to be found. We then called the number on the certificate he gave us and it leads to some lady up in La Jolla, California who has absolutely no idea what I am talking about. I am from San Diego, California by the way. So we decided to look up the credit card charge to see if any information about the individual could be found. This douche charged me on an Iphone and it linked straight to his account with his name. We googled his name and low and behold here he was. We have found his facebook, his twitter, his moms facebook, his dads facebook. The kid lives in the immediate area where he was trying to scam people. My fiancé has sent him a message via facebook requesting that he give the money back before we take legal action. So my question is. What exactly can be done to someone who has sold fake services to someone. Is this considered some form of Fraud? Or am I just the naïve idiot that believed in something too good to be true. Please any advice is welcome. Thanks Answer #1: Call the police and your credit card company. They may issue a chargeback (and hit him with some fees). Answer #2: You can report him to the police. Separately, you can sue him for your money back.
EXHIBIT 10.1 LOAN AGREEMENT by and among DAYSTAR TECHNOLOGIES, INC., as the Company, and LC CAPITAL MASTER FUND, LTD as the Purchaser, and LAMPE, CONWAY & CO., LLC as Agent Dated as of June 15, 2007 LOAN AGREEMENT This LOAN AGREEMENT (this “Agreement”) is dated as of June 15, 2007 and is by and among DayStar Technologies, Inc., a Delaware corporation (the “Company”), LC Capital Master Fund, Ltd. (the “Purchaser”) and Lampe, Conway & Co., LLC, a Delaware limited liability company, as the agent and collateral agent for the Holders (“Lampe”, and in such capacities, together with its successors and assigns in such capacities, “Agent”). WHEREAS, the Company intends to raise not less than $25,000,000 through an equity financing consummated before July 31, 2007 (such transaction, the “Transaction”); WHEREAS, the Company has requested that the Purchaser provide the Company with certain financing to fund the Company’s general working capital and general corporate purposes before the consummation of the Transaction; and WHEREAS, to effect such requested financing, the Company desires to issue and sell to the Purchaser, and the Purchaser desires to purchase from the Company, a Secured Fixed-Rate Note in the aggregate principal amount of $4,000,000 due December 15, 2007 (such note or any note issued from time to time in substitution therefor pursuant to this Agreement, the “Note”), all upon the terms and subject to the conditions more fully set forth in this Agreement; NOW THEREFORE, in consideration of the mutual agreements, representations, warranties and covenants herein contained, the parties hereto agree as follows: 1. DEFINITIONS. As used in this Agreement, the following terms shall have the following respective meanings: “Additional Mortgage” has the meaning given thereto in Section 6.10. “Additional Mortgaged Property” has the meaning given thereto in Section 6.10. “Affiliate” means any Person that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, a Person, as such terms are used and construed under Rule 144. “Agent” has the meaning given thereto in the first paragraph hereof. “Agreed Amount” has the meaning given thereto in Section 7.2(b). “Applicable Law” means all laws, rules and regulations applicable to a Person, its Property or a transaction, as the case may be, including all applicable common law principles and all provisions of all applicable federal, state, local and foreign constitutions, treatises, codes, statutes, rules, regulations, orders and ordinances of any Governmental Authority; and writs, orders, judgments, injunctions and decrees of all courts and arbitrators. 1 Loan Agreement “Applicable Price” means, with respect to any portion of the outstanding principal amount on the Note, an amount equal to 102.0% of such outstanding principal amount. “Applicable Rate” means 10% per annum. “Board” means the board of directors of the Company. “Business Day” means any day other than a Saturday, Sunday or a day on which banks and trust companies in New York, New York are authorized by law, regulation or executive order to remain closed. “Capital Stock” means the capital stock or other equity interests of a Person. “Capitalized Leases” means all leases that have been or should be, in accordance with GAAP, recorded as capitalized leases. “Cash Equivalents” means (a) marketable direct obligations issued or unconditionally guaranteed by the U.S. Treasury including treasury bills, notes and bonds, backed by the full faith and credit of the United States, (b) securities issued by corporations or agencies formed by the United States government, backed by the full faith and credit of the United States, in each case maturing within six (6) months from the date of acquisition thereof, (c) certificates of deposit or bankers’ acceptances, including Eurodollar and Yankee issues, which have a rating from Standard & Poor’s rating service (“S&P”) of A or higher or Moody’s Investors Service, Inc. (“Moody’s”) of A2 or higher, (d) commercial paper, corporate bonds, medium term notes and euronotes issued by foreign or domestic entities with an S&P rating of A or P 1, as applicable, or higher or a Moody’s rating of A2 or A1, as applicable, or higher, (e) municipal notes with an S&P rating of P 1 or higher or a Moody’s investment grade rating of 1/S or higher, (f) municipal bonds with an S&P or Moody’s rating of AAA, (g) taxable and tax advantaged auction rate securities with an S&P rating of A2 or higher or a Moody’s rating of A or higher and tax free auction rate securities with an S&P or Moody’s rating of AAA, (h) money market funds invested in any of the assets listed in clauses (a) – (g), and (i) repurchase obligations relating to any of the assets listed in clauses (a) – (g). “Change of Control” means any of the following events: (a) the sale, lease, transfer or other disposition, in one or a series of related transactions, of all or substantially all of the assets of the Company and its Subsidiaries taken as a whole, (b) the Company shall fail to beneficially own, directly or indirectly, 100% of the outstanding equity of any of its Subsidiaries, on a fully diluted basis, (c) in connection with any merger, acquisition, restructuring or similar transaction (including any transaction of the type described in Section 6.22), the composition of the Board (as measured by voting power) shall change by 50% or more, (d) the consolidation or merger of any Grantor pursuant to which such party’s common stock (or other Capital Stock) would be converted into cash, securities or other Property, other than a merger or consolidation of the Grantors (i) with or into a Person who, with the consent of Collateral Agent (acting at the direction of the Majority Holders), becomes a Grantor hereunder, or (ii) with or into another Grantor, (e) a “change in control” as defined in any document governing Indebtedness (in excess of $1,000,000) of any Grantor that is not a natural person that gives the holders of such Indebtedness the right to accelerate or otherwise require payment of such Indebtedness prior to the maturity date thereof. 2 Loan Agreement “Claim Notice” has the meaning given thereto in Section 7.2(a). “Claimed Amount” has the meaning given thereto in Section 7.2(a). “Closing” shall have the meaning given thereto in Section 2.3. “Closing Date” means the date on which the Closing shall occur. “Collateral” means, collectively, all of the real, personal and mixed property (including Capital Stock) in which Liens are, or are purported to be, granted pursuant to the Collateral Documents as security for the Obligations. “Collateral Agent” means the Agent. “Collateral Documents” means the Security Agreement, the Mortgages and all other instruments or documents delivered by the Company pursuant to this Agreement or any of the other Loan Documents in order to grant the Collateral Agent, on behalf of the Secured Parties, a Lien on any real, personal or mixed property of the Company as security for the Note, in each case including any financing statements, notices and the like filed, recorded or delivered in connection therewith. “Company” has the meaning given thereto in the first paragraph hereof. “Contingent Obligation”, as applied to any Person, means any direct or indirect liability, contingent or otherwise, of that Person (i) with respect to any Indebtedness, lease, dividend or other obligation of another if the primary purpose or intent thereof by the Person incurring the Contingent Obligation is to provide assurance to the obligee of such obligation of another that such obligation of another will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such obligation will be protected (in whole or in part) against loss in respect thereof, (ii) with respect to any acceptance, letter of credit or surety bond or similar facility issued for the account of that Person or as to which that Person is otherwise liable for reimbursement of drawings, or (iii) under Hedge Agreements. Contingent Obligations shall include (a) the direct or indirect Guaranty, endorsement (otherwise than for collection or deposit in the ordinary course of business), co-making, discounting with recourse or sale with recourse by such Person of the obligation of another, (b) the obligation to make take-or-pay or similar payments if required regardless of non-performance by any other party or parties to an agreement, and (c) any liability of such Person for the obligation of another through any agreement (contingent or otherwise) (1) to purchase, repurchase or otherwise acquire such obligation or any security therefor, or to provide funds for the payment or discharge of such obligation (whether in the form of loans, advances, stock purchases, capital contributions or otherwise) or (2) to maintain the solvency or any balance sheet item, level of income or financial condition of another if, in the case of any agreement described under subclauses (1) or (2) of this sentence, the primary purpose or intent thereof is as described in the preceding sentence. The amount of any Hedge Agreement shall be determined pursuant to the definition of “Swaps”. The amount of any other Contingent Obligation shall be equal to the amount of the obligation so guaranteed or otherwise supported or, if less, the amount to which such Contingent Obligation is specifically limited. 3 Loan Agreement “Control Agreement” means (a) an agreement which satisfies the requirements of “control” in favor of the Collateral Agent (on behalf of the Holders) over a Deposit Account, Security Account, investment property, electronic chattel paper or letter-of-credit rights, in each case within the meaning of the UCC, or (b) a similar agreement or arrangement, as applicable, with respect to Deposit Accounts or Security Accounts maintained outside the United States by a Grantor with respect to which a Lien or similar right may be granted under applicable law. “Currency Agreement” means any foreign exchange contract, currency swap agreement, futures contract, option contract, synthetic cap or other similar agreement or arrangement to which the Company or any of its Subsidiaries is a party. “DayStar Solar” means DayStar Solar, LLC, a Colorado limited liability company. “Deposit Accounts” means a demand, time, savings, passbook or similar account maintained with a Person engaged in the business of banking, including a savings bank, savings and loan association, credit union or trust company or as otherwise defined in the UCC. “Disposition” means, with respect to any Property, any sale, lease, sale and leaseback, assignment, conveyance, grant of restriction, transfer or other disposition thereof; and the terms “Dispose” and “Disposed of” shall have correlative meanings. “Electronic Notice” shall have the meaning given thereto in Section 9.3(a). “Environmental Protection Laws” means any law, statute or regulation enacted by any jurisdiction in connection with or relating to the protection or regulation of the environment, including, without limitation, those laws, statutes and regulations regulating the disposal, removal, production, storing, refining, handling, transferring, processing or transporting of hazardous or toxic substances, and any orders, decrees or judgments issued by any court of competent jurisdiction in connection with any of the foregoing. “Event of Default” has the meaning given thereto in Section 6.1(a). “Existing Liens” means the Liens existing on the date hereof that are described on Schedule 6.17. “Financial Statements” shall have the meaning given thereto in Section 3.4. “First Priority” means, with respect to any Lien purported to be created in any Collateral pursuant to the Security Agreement, that (i) such Lien is perfected and has priority over any other lien on such Collateral (other than Permitted Liens) and (ii) such Lien is the only Lien (other than Permitted Liens) to which such Collateral is subject. “GAAP” shall have the meaning given thereto in Section 3.4. 4 Loan Agreement “Governing Body” means the board of directors or other body having the power to direct or cause the direction of the management and policies of a Person that is a corporation, partnership, trust or limited liability company. “Governmental Authority” means any: (a) nation, principality, state, commonwealth, province, territory, county, municipality, district or other jurisdiction of any nature; (b) federal, state, local municipal, foreign or other government; (c) governmental or quasi governmental authority of any nature (including any governmental division, subdivision, department, agency, bureau, branch, office, commission, council, board, instrumentality, officer, official, representative, organization, unit, body or entity and any court or other tribunal); (d) multinational organization or body; or (e) individual, entity or body exercising, or entitled to exercise, any executive, legislative, judicial, administrative, regulatory, police, military or taxing authority or power of any nature. “Grantors” means the Company and each Subsidiary Guarantor, each of the Grantors individually being a “Grantor”. “Guaranty” means, with respect to any Person, any obligation (except the endorsement in the ordinary course of business of negotiable instruments for deposit or collection) of such Person guaranteeing or in effect guaranteeing any indebtedness, dividend or other obligation of any other Person in any manner, whether directly or indirectly, including (without limitation) obligations incurred through an agreement, contingent or otherwise, by such Person: (i) to purchase such indebtedness or obligation or any property constituting security therefor; (ii) to advance or supply funds (x) for the purchase or payment of such indebtedness or obligation, or (y) to maintain any working capital or other balance sheet condition or any income statement condition of any other Person or otherwise to advance or make available funds for the purchase or payment of such indebtedness or obligation; (iii) to lease properties or to purchase properties or services primarily for the purpose of assuring the owner of such indebtedness or obligation of the ability of any other Person to make payment of the indebtedness or obligation; or (iv) otherwise to assure the owner of such indebtedness or obligation against loss in respect thereof. In any computation of the indebtedness or other liabilities of the obligor under any Guaranty, the indebtedness or other obligations that are the subject of such Guaranty shall be assumed to be direct obligations of such obligor. “Hedge Agreement” means an Interest Rate Agreement or a Currency Agreement designed to hedge against fluctuations in interest rates or currency values, respectively, and not entered into for speculative purposes. 5 Loan Agreement “Holders” means collectively the Purchaser, each of its transferees from time to time (if any) and each transferee from time to time (if any) of any other Holder. Each of the Holders individually is herein referred to as a “Holder”. “Indebtedness” means, as applied to any Person, all indebtedness for borrowed money, whether current or funded, or secured or unsecured. “Indemnified Party” has the meaning given thereto in Section 7.2(b). “Indemnifying Party” has the meaning given thereto in Section 7.2(b). “Intellectual Property” has the meaning given thereto in Section 3.13. “Interest Payment Date” means each of (i) the date that is 30 calendar days after the date hereof and (ii) the same day of each month thereafter. “Interest Rate Agreement” means any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement or other similar agreement or arrangement to which the Company or any of its Subsidiaries is a party. “Interests” means any stock, shares, partnership interests, voting trust certificates, certificates of interest or participation in any profit-sharing agreement or arrangement, options, warrants, bonds, debentures, notes, or other evidences of indebtedness, secured or unsecured, convertible, subordinated, certificated or uncertificated, or otherwise, or in general any instruments commonly known as “securities” or any certificates of interest, shares or participations in temporary or interim certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire, any of the foregoing. “Investment” means (i) any direct or indirect purchase or other acquisition by the Company or any of its Subsidiaries of, or of a beneficial interest in, any Interests of any other Person (including any Subsidiary of the Company), (ii) any direct or indirect redemption, retirement, purchase or other acquisition for value, by any Subsidiary of the Company from any Person other than the Company or any of its Subsidiaries, of any equity Interests of such Subsidiary, (iii) any direct or indirect loan, advance (other than advances to employees for moving, entertainment and travel expenses, drawing accounts and similar expenditures in the ordinary course of business and advances to customers in the ordinary course of business that are recorded as accounts receivable on the balance sheet of the Company or its Subsidiaries and deposits, prepayments and other credits to suppliers made in the ordinary course of business consistent with the past practices of the Company and its Subsidiaries) or other extension of credit or capital contribution (by means of any transfer of cash or other Property to others or any payment for Property or services for the account or use of others) by the Company or any of its Subsidiaries to any other Person (other than a Wholly-Owned Subsidiary of the Company that is a Grantor), including all indebtedness and accounts receivable from that other Person that are not current assets or did not arise from sales to that other Person in the ordinary course of business, or (iv) Interest Rate Agreements or Currency Agreements not constituting Hedge Agreements. The amount of any Investment shall be the original cost of such Investment plus the cost of all additions thereto, without any adjustments for increases or decreases in value, or write-ups, write-downs or write-offs with respect to such Investment (other than adjustments for the 6 Loan Agreement repayment of, or the refund of capital with respect to, the original principal amount of any such Investment) plus, in the case of Interest Rate Agreements or Currency Agreements, the obligations thereunder as determined pursuant to the definition of “Swaps”. “IP Collateral” means, collectively, the Intellectual Property that constitutes Collateral under the Security Agreements. “Landlord Consent, Estoppel and Collateral Access Agreement”, with respect to any Material Leasehold Property, means a letter, certificate or other instrument in writing from the lessor under the related lease, satisfactory in form and substance to the Collateral Agent, pursuant to which such lessor agrees, for the benefit of the Collateral Agent, (a) that without any further consent of such lessor or any further action on the part of the Company or Subsidiary holding such Leasehold Property, such Leasehold Property may be encumbered pursuant to a mortgage and may be assigned to the purchaser at a foreclosure sale or in a transfer in lieu of such a sale (and to a subsequent third party assignee if the Collateral Agent, the Purchaser, or an Affiliate of either so acquires such Leasehold Property), (b) that such lessor shall not terminate such lease as a result of a default by the Company or its Subsidiary thereunder without first giving the Collateral Agent notice of such default and at least 30 days (or, if such default cannot reasonably be cured by the Collateral Agent within such period, such longer period as may reasonably be required) to cure such default, (c) that the Collateral Agent and/or its designated representatives may have access to all Collateral located on the Leasehold Property during reasonable business hours, that such lessor will not to hinder the Collateral Agent or any such representatives in enforcing the Collateral Agent’s or the Secured Parties’ remedies with respect to the Collateral and that such lessor waives any rights, claims, interest or liens with respect to such Collateral and (d) to such other matters relating to such Leasehold Property as the Collateral Agent may reasonably request. “Leasehold Property” means any leasehold interest of the Company or its Subsidiaries as lessee under any lease of real property. “Lien” means, with respect to any property or asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such property or asset, whether or not filed, recorded or otherwise perfected under applicable law, other than (a) those resulting from taxes which have not yet become delinquent, (b) minor liens and encumbrances that do not materially detract from the value of the property or materially impair the operations of the Company or materially interfere with the use of such property or asset or (c) those relating to Indebtedness incurred prior to the date hereof and any replacement thereof. “Loan Documents” means, collectively, this Agreement, the Note, the Subsidiary Guaranty executed by DayStar Solar, the Security Agreement and any other document delivered in connection therewith. “Losses” has the meaning given thereto in Section 7.1. “Majority Holders” means Holders of at least a majority in principal amount of the Outstanding Notes. 7 Loan Agreement “Material Adverse Effect” means any material adverse change in or effect on: (x) the business, condition (financial or otherwise), assets, liabilities, operations, management, performance, properties, or prospects of any Grantor, (y) the ability of each Grantor to perform its obligations under the Loan Documents or (z) the ability of the Purchaser or the Agent to enforce the Loan Documents; provided that notwithstanding anything contained in this definition, no event disclosed in the Company’s public filings with the SEC prior to May 18, 2007, shall constitute a Material Adverse Effect (to the extent the scope of such disclosures accurately reflect the magnitude of such condition or liability). “Material Leasehold Property” means a Leasehold Property reasonably determined by the Collateral Agent to be of material value as Collateral or of material importance to the operations of the Company or any of its Subsidiaries; provided, however, no Leasehold Property with respect to which the aggregate amount of all rents payable during any one Fiscal Year never exceeds $100,000 shall be a “Material Leasehold Property” “Material Subsidiary” means any Subsidiary of the Company that owns Property with a fair market value of more than $100,000. “Maturity Date” means the date that is six months from the date hereof. “Monthly Period” means (i) a period beginning on the date hereof and ending on the date that is one day before the first Interest Payment Date and (ii) each other period beginning on an Interest Payment Date and ending on the date that is one day before the next consecutive Interest Payment Date. “Mortgage” means (a) a security instrument (whether designated as a deed of trust or a mortgage or by any similar title) executed and delivered by any Grantor, in such form as is reasonably satisfactory to the Collateral Agent, in such case with such changes thereto as may be recommended by the Collateral Agent’s local counsel based on local laws or customary local mortgage or deed of trust practices, or (b) at the Collateral Agent’s option, in the case of an Additional Mortgaged Property, an amendment to an existing Mortgage, in form reasonably satisfactory to the Collateral Agent, adding such Additional Mortgaged Property to the Real Property Assets encumbered by such existing Mortgage. “Mortgages” means all such instruments, including any Additional Mortgages, collectively. “Non-U.S. Subsidiary” means any Subsidiary of the Company that is not a U.S. Subsidiary. “Note” has the meaning given thereto in the recitals hereto. “Note Sale Proceeds” means the proceeds from the sale of the Note contemplated by this Agreement and any interest accrued on such proceeds. “Obligations” means all obligations of every nature of each Grantor from time to time owed to the Collateral Agent, the Agent, the Purchaser or any of them under the Loan Documents, whether for principal, interest, prepayment premium, fees, expenses, indemnification or otherwise. 8 Loan Agreement “Outstanding Notes” means all Notes issued and outstanding on the date of determination. “Organizational Documents” means with respect to any Person, its charter, certificate or articles of incorporation, bylaws, articles of organization, operating agreement, members agreement, partnership agreement, voting trust, or similar agreement or instrument governing the formation or operation of such Person. “Perfection Certificate” means an Officers’ Certificate of the Company in form and substance approved by the Collateral Agent, completed and with the schedules and attachments contemplated thereby. “Permitted Dispositions” means (a) sales or other dispositions of equipment (as the term is defined in the UCC) that is substantially worn, damaged, or obsolete in the ordinary course of business, (b) sales of inventory (as the term is defined in the UCC) to buyers in the ordinary course of business, (c) the use or transfer of money or Cash Equivalents in a manner that is not prohibited by the terms of this Agreement or the other Loan Documents, and (d) the licensing, on a non-exclusive basis, of patents, trademarks, copyrights, and other intellectual property rights in the ordinary course of business. “Permitted Indebtedness” means (i) the Obligations and (ii) purchase money security interest financing and Capitalized Leases, collectively not to exceed in aggregate $200,000 per annum and made in the ordinary course of business. “Permitted Investments” means (a) Investments in cash and Cash Equivalents, (b) Investments in negotiable instruments for collection, and (c) advances made in connection with purchases of goods or services in the ordinary course of business. “Permitted Liens” means such of the following as to which no enforcement, collection, execution, levy or foreclosure proceeding shall have been commenced: (a) Liens for taxes, assessments and governmental charges or levies to the extent not required to be paid under Section 6.7; (b) Liens imposed by law, such as materialmen’s, mechanics’, carriers’, workmen’s and repairmen’s Liens and other similar Liens arising in the ordinary course of business securing obligations that are not overdue for a period of more than 30 days; (c) pledges or deposits to secure obligations under workers’ compensation laws or similar legislation or to secure public or statutory obligations; (d) judgment liens that do not give rise to an Event of Default under this Agreement; (e) Existing Liens; and (f) Liens arising in connection with Permitted Indebtedness, provided that, to the extent that any Permitted Indebtedness is a Capitalized Lease or a purchase money obligation, no such Lien shall extend to or cover any Collateral or assets other than the assets subject to such Permitted Indebtedness. “Person” (whether or not capitalized) means an individual, entity, partnership, limited liability company, corporation, association, trust, joint venture, unincorporated organization, and any government, governmental department or agency or political subdivision thereof. “Property” or “Properties” means, unless otherwise specifically limited, real, personal or mixed assets or property of any kind, tangible or intangible, choate or inchoate. 9 Loan Agreement “Purchaser” has the meaning given thereto in the first paragraph hereof. “Purchaser Indemnitee” and “Purchaser Indemnitees” have the meaning given thereto in Section 7.1. “Real Property Asset” means, at any time of determination, any interest then owned (whether in fee, leasehold or otherwise) by any Grantor in any real property. “Response Notice” has the meaning given thereto in Section 7.2(b). “Rights” has the meaning given thereto in Section 3.13. “Rule 144” means Rule 144 promulgated under the Securities Act and any successor or substitute rule, law or provision. “SEC” means the Securities and Exchange Commission. “Secured Parties” is defined in the Security Agreement. “Securities Act” means the Securities Act of 1933, as amended, and all of the rules and regulations promulgated thereunder. “Securities Accounts” has the meaning given thereto in the UCC. “Security Agreement” means the Security Agreement by and between the Company and the Purchaser, in substantially the form attached hereto as Exhibit D. “Solvency Certificate” is defined in Section 5.1(j). “Solvent”, with respect to any Person, means that as of the date of determination both (i) the aggregate value of all the tangible and intangible assets and properties of such Person at their respective present estimated fair saleable values is (1) greater than the total amount of liabilities of such Person and (2) not less than the amount that will be required to pay the probable liabilities on such Person’s presently existing debts as they become due considering all financing alternatives and potential asset sales reasonably available to such Person or anticipated; (ii) such Person’s capital is not, after taking into account the proceeds of anticipated future debt and equity financings and the practices of venture capital backed companies, unreasonably small in relation to its business or any contemplated or undertaken transaction; and (iii) such Person does not intend to incur, or believe that it will incur, debts beyond its ability to pay such debts as they become due. For purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability. “Subsidiary” means, as to any Person, any corporation, association or other business entity in which such Person or one or more of its Subsidiaries or such Person and one or 10 Loan Agreement more of its Subsidiaries owns sufficient equity or voting interests to enable it or them (as a group) ordinarily, in the absence of contingencies, to elect a majority of the directors (or Persons performing similar functions) of such entity, and any partnership or joint venture if more than a 50% interest in the profits or capital thereof is owned by such Person or one or more of its Subsidiaries or such Person and one or more of its Subsidiaries. Unless the context otherwise clearly requires, any reference to a “Subsidiary” is a reference to a Subsidiary of the Company. “Subsidiary Guarantor” means DayStar Solar and each other Person that has executed and delivered the Subsidiary Guaranty (whether as an original signatory thereto or pursuant to a Subsidiary Guaranty Joinder). “Subsidiary Guaranty” means a Subsidiary Guaranty in form and substance satisfactory to the Collateral Agent. “Subsidiary Guaranty Joinder” shall mean the Joinder Agreement to the Subsidiary Guaranty in form and substance satisfactory to the Collateral Agent. “Swaps” means, with respect to any Person, payment obligations with respect to Interest Rate Agreements, Hedge Agreements and similar obligations obligating such Person to make payments, whether periodically or upon the happening of a contingency. For the purposes of the Loan Documents, the amount of the obligation under any Swap shall be the amount determined in respect thereof as of the end of the then most recently ended fiscal quarter of such Person, based on the assumption that such Swap had terminated at the end of such fiscal quarter, and in making such determination, if any agreement relating to such Swap provides for the netting of amounts payable by and to such Person amounts by and to such Person, then in each such case, the amount of such obligation shall be the net amount so determined. “Tax Return” means any report, return, document, declaration or other information or filing required to be supplied to any Taxing Authority, including information returns, any documents with respect to accompanying payments of estimated Taxes, or with respect to or accompanying requests for extensions of time in which to file any such return, report, document, declaration or other information. “Taxes” means “any and all taxes, charges, fees, levies or other assessments, including income, gross receipts, excise, real or personal property, sales, withholding, social security, retirement, unemployment, occupation, use, goods and services, license, value added, capital, net worth, payroll, profits, franchise, transfer and recording taxes, fees and charges, and any other taxes, taxing authority (whether state, county, local or foreign) (each, a “Taxing Authority”), including any interest, fines, penalties or additional amounts attributable to or imposed upon any such taxes or other assessments. “Taxing Authority” has the meaning given thereto in the definition of the term “Taxes” in this Section 1. “Transaction” has the meaning given thereto in the recitals hereto. 11 Loan Agreement “Transaction Proceeds” has the meaning given thereto in Section 2.5(b). “UCC” means the Uniform Commercial Code, as adopted in the State of New York, as amended or supplemented from time to time or, if the context hereof requires, any other applicable law or regulation of any other state or of any foreign jurisdiction in which the Collateral agent obtains or has the right to obtain an enforceable (and “perfected”) Lien on any Collateral. “U.S. Subsidiary” means any Subsidiary of the Company that is incorporated or organized under the laws of the United States of America, any state thereof or in the District of Columbia. “Wholly-Owned Subsidiary” means, at any time, any Subsidiary one hundred percent (100%) of all of the equity interests (except directors’ qualifying shares) and voting interests of which are owned by any one or more of the Company and the Company’s other Wholly-Owned Subsidiaries at such time. 2. GENERAL 2.1 AUTHORIZATION OF NOTE. The Company has authorized the issue and sale of the Note, a form of which is attached as Exhibit B. 2.2 Sale and Purchase of Note. Subject to the terms and conditions of this Agreement, the Company will issue and sell to the Purchaser, and the Purchaser will purchase from the Company, on the date hereof, a Note in the principal amount specified opposite the Purchaser’s name in Exhibit A at the purchase price of 100% of the principal amount thereof. 2.3 Closing. The sale and purchase of the Note shall occur at the offices of Milbank, Tweed, Hadley & McCloy, LLP, 1 Chase Manhattan Plaza, New York, New York, at 10:00 a.m., Eastern Standard time, on the date hereof (the “Closing”). At the Closing, the Company will deliver to the Purchaser the Note to be purchased by the Purchaser in the form of a single Note (or such greater number of Notes in denominations of at least $100,000 as the Purchaser may request) dated the Closing Date and registered in the Purchaser’s name (or in the name of its nominee), against delivery by the Purchaser to the Company or its order of the aggregate amount of the purchase price therefor, which will be paid by immediately available funds by wire transfer for the account of the Company designated by the Company for receipt of such wire transfer. 2.4 Interest. (a) Interest Rates. Except as provided in clause (b) below, the Company shall pay interest on the unpaid principal amount of the Note owing to each Holder from the dated hereof until such principal amount shall be paid in full at the Applicable Rate, payable monthly in immediately available funds. 12 Loan Agreement (b) Default Rate. Upon the occurrence and during the continuation of an Event of Default, the Company shall pay interest on the amount of all Obligations owing as of the end of each day at a per annum rate equal to 2 percentage points above the Applicable Rate, unless Agent or Majority Holders waive such interest rate adjustment in writing. (c) Payment. At any time that Obligations are outstanding, interest shall be due and payable, and the Company shall pay interest, in arrears, on each Interest Payment Date (subject to Section 2.6(a)). Any interest not paid when due shall be compounded and shall accrue interest at the rate then applicable to Obligations under Sections 2.4(a) or 2.4(b). (d) Payment Dates. Whenever any payment hereunder or under the Notes shall be stated to be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of payment of interest. (e) Computation. All interest and fees chargeable under the Loan Documents shall be computed on the basis of a 360 day year for the actual number of days elapsed. (f) Intent to Limit Charges to Maximum Lawful Rate. In no event shall the interest rate or rates payable under this Agreement, plus any other amounts paid in connection herewith, exceed the highest rate permissible under any law that a court of competent jurisdiction shall, in a final determination, deem applicable. The Company, the Purchaser and Agent, in executing and delivering this Agreement, intend legally to agree upon the rate or rates of interest and manner of payment stated within it; provided, however, that, anything contained herein to the contrary notwithstanding, if said rate or rates of interest or manner of payment exceeds the maximum allowable under applicable law, then, ipso facto, as of the date of this Agreement, Borrower is and shall be liable only for the payment of such maximum as allowed by law, and payment received from Borrower in excess of such legal maximum, whenever received, shall be applied to reduce the principal balance of the Obligations to the extent of such excess. 2.5 Maturity; Prepayment. (a) Maturity. On the Maturity Date, the Company shall pay all outstanding principal at the Applicable Price plus all accrued and unpaid interest on the Note. (b) Mandatory Prepayment. Upon the consummation of the Transaction or any other financing occurring after the Closing Date (other than the exercise of currently outstanding warrants), the Company shall use the proceeds from the Transaction or such other financing (the “Transaction Proceeds”), before using the Transaction Proceeds for any other purpose, to prepay all outstanding principal at the Applicable Price plus all accrued and unpaid interest on the Note. To the extent that the Transaction Proceeds are not sufficient to prepay fully all outstanding principal at the Applicable Price and all accrued and unpaid interest on the Note, the Transaction Proceeds shall first be used to pay all accrued and unpaid interest on the Note before being used to prepay the principal at the Applicable Price. 13 Loan Agreement (c) Optional Prepayment. At any time, Company may prepay the outstanding principal on the Note, in whole or in part, in increments of not less than $100,000, at the Applicable Price, provided that the Company shall also pay or have paid all accrued and unpaid interest then payable on the Note. 2.6 Apportionment and Application. (a) Except as otherwise provided in the Loan Documents, aggregate principal and interest payments shall be apportioned ratably among the Holders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Holder). All such payments, and all proceeds of Collateral received by Agent, shall be applied as follows: (i) first, to pay any expenses or indemnification (including, but not limited to, any amounts due under Section 6.15 or Section 7) then due to Agent or any Holder under the Loan Documents, until paid in full, (ii) second, to pay interest due in respect of the Notes until paid in full, (iii) third, to pay all principal amounts then due and payable with respect to the Notes until paid in full, (iv) fourth, to the Company or such other Person entitled thereto under applicable law. (b) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.6 shall not apply to any payment made by the Company to Holders or Agent and specified by the Company to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement or any other Loan Document. (c) In the event of a direct conflict between the priority provisions of this Section 2 and any similar other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2 shall control and govern. 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby represents and warrants to the Purchaser, as of the date hereof and except as set forth on the disclosure schedule furnished by the Company to the Purchaser (the “Disclosure Schedule”) attached hereto, as follows: 3.1 Incorporation. The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, and the Company is in 14 Loan Agreement good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or the character of the property owned by it makes such qualification necessary, except where the failure to be so qualified would not result in a Material Adverse Effect. The Company has all requisite corporate power and authority to carry on its business as now conducted and to carry out the transactions contemplated hereby. The Company is not in violation of any of the provisions of its Certificate of Incorporation (or other charter document) or By-laws. 3.2 Capitalization. The authorized capital stock of the Company consists of (i) 60,000,000 shares of Common Stock, of which 14,947,562 shares were outstanding as of the date hereof, and (ii) 3,000,000 shares of preferred stock, none of which were outstanding as of the date hereof. All shares of the Company’s issued and outstanding capital stock have been duly authorized, are validly issued and outstanding, and are fully paid and nonassessable. Except as set forth in Schedule 3.2 to the Disclosure Schedule, there are no existing options, warrants, calls, preemptive (or similar) rights, subscriptions or other rights, agreements, arrangements or commitments of any character obligating the Company to issue, transfer or sell, or cause to be issued, transferred or sold, any shares of the capital stock of the Company or other equity interests in the Company or any securities convertible into or exchangeable for such shares of capital stock or other equity interests, and there are no outstanding contractual obligations of the Company to repurchase, redeem or otherwise acquire any shares of its capital stock or other equity interests. The issuance and sale of the Note will not obligate the Company to issue or sell shares of Common Stock or other securities to any Person and will not result in a right of any holder of Company securities to adjust the exercise, conversion, exchange or reset price under such securities. 3.3 Authorization. All corporate action on the part of the Company, its officers and directors necessary for the authorization, execution, delivery and performance of this Agreement and the other Loan Documents, and the consummation of the transactions contemplated herein and therein, has been taken. When executed and delivered by the Company, each of this Agreement and the other Loan Documents shall constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as such may be limited by bankruptcy, insolvency, reorganization or other laws affecting creditors’ rights generally and by general equitable principles. The Company has all requisite corporate power and authority to enter into this Agreement and the Loan Documents and to carry out and perform its obligations under their respective terms. 3.4 Financial Statements. The Company has delivered to the Purchaser its audited financial statements (balance sheet, profit and loss statement, statement of stockholders’ equity and statement of cash flows, including notes thereto) for the fiscal year ended December 31, 2006, and its unaudited financial statements (balance sheet, income statement and statement of cash flows) for the three months ended March 31, 2007 (collectively, the “Financial Statements”). The Financial Statements have been prepared in accordance with generally accepted accounting principles applied on a consistent basis throughout the periods indicated and with each other (“GAAP”), except that the unaudited Financial Statements do not contain footnotes required by GAAP. The Financial Statements are accurate and complete in all material respects, are consistent with the books and records of the Company (which in turn are accurate and complete in all material respects) and fairly present the financial condition and operating 15 Loan Agreement results of the Company as of the dates, and for the periods, indicated therein, subject in the case of unaudited Financial Statements to normal year-end audit adjustments. Except as set forth in the Financial Statements or as disclosed in Schedule 3.4, the Company does not have any material liabilities (whether or not required to be disclosed in accordance with GAAP) arising out of transactions entered into at or prior to the Closing other than (i) liabilities and obligations that have arisen after December 31, 2006, in the ordinary course of business and consistent with past practice of the Company and (ii) obligations under contracts and commitments incurred in the ordinary course of business and consistent with past practice of the Company that would not be required to be reflected in Financial Statements prepared in accordance with GAAP which, in both cases, individually or in the aggregate, are not material to the financial condition or operating results of the Company and (iii) except as otherwise reflected in the Financial Statements. Except as disclosed in the Financial Statements, the Company is not a guarantor or indemnitor of any indebtedness of any other person, firm or corporation. The Company maintains and will continue to maintain a standard system of accounting established and administered in accordance with GAAP. 3.5 Consents. All consents, approvals, orders and authorizations required on the part of the Company in connection with the execution or delivery of, or the performance of the obligations under, this Agreement and the Loan Documents, and the consummation of the transactions contemplated herein and therein, have been obtained and will be effective as of the date hereof. The execution and delivery by the Company of this Agreement and the Loan Documents, the consummation of the transactions contemplated herein and therein, and the issuance of the Note do not require the consent or approval of the stockholders of, or any lender to, the Company. 3.6 No Conflict; Compliance With Laws. (a) The execution, delivery and performance by the Company of this Agreement and the other Loan Documents, and the consummation of the transactions contemplated hereby and thereby, including the issuance of the Note, do not and will not (i) conflict with or violate any provision of the Certificate of Incorporation (or other charter documents) or By-laws of the Company, (ii) breach, conflict with or result in any violation of or default (or an event that with notice or lapse of time or both would become a default) under, or give rise to a right of termination, amendment, acceleration or cancellation (with or without notice or lapse of time, or both) of any obligation, contract, commitment, lease, agreement, mortgage, note, bond, agreement or other instrument or obligation to which the Company is a party or by which it or any of its properties or assets are bound, or (iii) result in a violation of any statute, law, rule, regulation, order, ordinance or restriction applicable to the Company or any of its properties or assets, or any judgment, writ, injunction or decree of any court, judicial or quasi-judicial tribunal applicable to the Company or any of its properties or assets. (b) The Company is not (i) in default under or in violation of (and no event has occurred that has not been waived that, with notice or lapse of time or both, would result in a default by the Company), nor has the Company received written notice of a claim that it is in default under or that it is in violation of, any indenture, loan or credit agreement or any other agreement or instrument to which it is a party or by which it or any of its properties or assets is bound (whether or not such default or violation has been waived), nor is it (ii) in 16 Loan Agreement including without limitation all foreign, federal, state and local laws relating to taxes, environmental protection, occupational health and safety, product quality and safety and employment and labor matters, except in each case as does not, and could not, reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. 3.7 Brokers or Finders. The Company has not dealt with any broker or finder in connection with the transactions contemplated by this Agreement or the Loan Documents, and the Company has not incurred, nor shall it incur, directly or indirectly, any liability for any brokerage or finders’ fees or agents’ commissions or any similar charges in connection with this Agreement or the Loan Documents, or any transaction contemplated hereby or thereby. 3.8 Absence of Litigation. There are no pending or, to the knowledge of any senior management person at the Company, threatened actions, suits, claims, proceedings or investigations against or involving the Company. 3.9 No Undisclosed Liabilities; Indebtedness. (a) Except as reflected or reserved against in the Financial Statements or as otherwise disclosed in Schedule 3.9(a), there are no liabilities against, relating to or affecting the Company or its assets and Properties, other than liabilities incurred in the ordinary course of business consistent with past practice that could not reasonably be expected to have, individually or in the (b) Set forth on Schedule 3.9(b) of the Disclosure Schedules is a true and complete list of all Indebtedness of each Grantor outstanding immediately prior to the Closing that is to remain outstanding after the Closing Date and such Schedule accurately reflects the aggregate principal amount of such Indebtedness. Except as disclosed in Schedule 3.9(b) of the Disclosure Schedules, the Company is not in default, and no waiver of default is currently in effect, in the performance of any agreements related to, or in the payment of any principal or interest on, any Indebtedness and no event or condition exists with respect to any Indebtedness of the Company that would permit (or that with notice or the lapse of time, or both, would permit) one or more Persons to cause such Indebtedness to become due and payable before its stated maturity or before its regularly scheduled dates of payment. (c) Set forth on Schedule 3.9(c) of the Disclosure Schedules is a true and complete list of all Contingent Obligations of each Grantor outstanding immediately prior to the Closing that is to remain outstanding after the Closing Date and such Schedule accurately reflects the aggregate amount of such Contingent Obligations. Neither the Company nor any Subsidiary is in default under, and no waiver of default is currently in effect with respect to, any Contingent Obligations or agreements related thereto. No event or condition exists with respect to any Contingent Obligations of the Company or any Subsidiary that would permit (or that with notice or the lapse of time, or both, would permit) one or more Persons to cause such Contingent Obligations to become fixed, due and payable. (d) Except as set forth on Schedule 3.9(d) of the Disclosure Schedules and as set forth herein, the Company has not agreed or consented to cause or permit in the future (upon the happening of a contingency or otherwise) any of its Property, whether now owned or hereafter acquired, to be subject to a Lien. 17 Loan Agreement 3.10 Contracts. The Company’s material contracts, agreements, instruments and other documents are legal, valid, binding and in full force and effect and are enforceable by the Company in accordance with their respective terms, except as such may be limited by bankruptcy, insolvency, reorganization or other laws affecting creditors’ rights generally and by general equitable principles. 3.11 Title to Assets. The Company has good and marketable title to all real and personal property owned by it that is material to the business of the Company, in each case free and clear of all Liens, except those, if any, reflected in the Financial Statements or incurred in the ordinary course of business consistent with past practice. Any real property and facilities held under lease by the Company are held by it or them under valid, subsisting and enforceable leases (subject to laws of general application relating to bankruptcy, insolvency, reorganization, or other similar laws affecting creditors’ rights generally and other equitable remedies) with which the Company is in compliance in all material respects. 3.12 Labor Relations. No labor or employment dispute exists or, to the knowledge of the Company, is imminent or threatened, with respect to any of the employees or consultants of the Company that has, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. 3.13 Intellectual Property. The Company is the sole and exclusive owner of, or, to the Company’s knowledge, has the exclusive right to use, all right, title and interest in and to all material foreign and domestic patents, patent rights, trademarks, service marks, trade names, brands, copyrights (whether or not registered and, if applicable, including pending applications for registration) and other proprietary rights or information, owned or used by the Company (collectively, the “Rights”), and in and to each material invention, software, trade secret, and technology used by the Company (the Rights and such other items, the “Intellectual Property”), and, to the Company’s knowledge, the Company owns and has the right to use the same, free and clear of any claim or conflict with the rights of others (subject to the provisions of any applicable license agreement). There have been no written claims made against the Company asserting that any of the operation of the Company’s business or any activity by the Company, or manufacture, sale, offer for sale, importation, and/or use of any Company product infringes or violates the rights of others in or to any Intellectual Property or constitutes a misappropriation of any subject matter of any Intellectual Property of any Person or that any of the Intellectual Property is invalid or unenforceable, and, to the Company’s knowledge, there are no reasonable grounds for any such claims. Schedule 3.13(a) contains a true and complete list of the Company’s issued patents and other registered Intellectual Property. Schedule 3.13(b) contains a true and complete list of all patent applications currently on file or intended to be filed within the next six (6) months by the Company. 3.14 Subsidiaries; Joint Ventures. Other than DayStar Solar, the Company has no subsidiaries and (i) does not otherwise own or control, directly or indirectly, any other Person and (ii) does not hold equity interests, directly or indirectly, in any other Person. The Company is not a participant in any joint venture, partnership, or similar arrangement material to its business. 18 Loan Agreement 3.15 Taxes. The Company has filed (or has had filed on its behalf), will timely file or will cause to be timely filed, or has timely filed for an extension of the time to file, all Tax Returns required by applicable law to be filed by it prior to or as of the date hereof, and such Tax Returns are, or will be at the time of filing, true, correct and complete in all material respects. The Company has paid (or has had paid on its behalf) or, where payment is not yet due, has established (or has had established on its behalf and for its sole benefit and recourse) or will establish or cause to be established in accordance with United States generally accepted accounting principles on or before the date hereof an adequate accrual for the payment of, all material Taxes due with respect to any period ending prior to or as of the date hereof. There are no claims or assessments pending against the Company for any material alleged deficiency in any Tax, and the Company has not been notified in writing of any material proposed Tax claims or assessments against the Company. Other than as set forth on Schedule 3.15, no Tax Return of the Company is or has been the subject of an examination by a Taxing Authority. The Company has withheld from each payment made to any of its past or present employees, officers and directors, and any other person, the amount of all material Taxes and other deductions required to be withheld therefrom and paid the same to the proper Taxing Authority within the time required by law. 3.16 Pensions and Benefits. Except as set forth on Schedule 3.16 of the Disclosure Schedule, the Company does not maintain any compensation or benefit plan, agreement, arrangement or commitment (including, but not limited to, “employee benefit plans” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended), for any present or former employees, officers or directors of the Company or with respect to which the Company has liability or has an obligation to make contributions. 3.17 Securities Regulations. Neither the Company nor any of its Subsidiaries is an “investment company” within the meaning of the Investment Company Act of 1940, as amended. No consent, license, permit, waiver, approval or authorization of, or designation, declaration, registration or filing with, the SEC or any state securities regulatory authority is required in connection with the offer, sale, issuance or delivery of the Note. 3.18 Material Changes. Except as set forth on Schedule 3.18 to the Disclosure Schedule, since March 31, 2007, the Company has conducted its business only in the ordinary course, consistent with past practice, and since such date there has not occurred: (i) a Material Adverse Effect; (ii) any amendments or changes in the charter documents or by-laws of the Company; (iii) any: (A) incurrence, assumption or guarantee by the Company of any debt for borrowed money other than (1) equipment leases made in the ordinary course of business, and (2) any such incurrence, assumption or guarantee with respect to an amount of $10,000 or less; (B) issuance or sale of any securities convertible into or exchangeable for securities of the Company other than to directors, employees and consultants pursuant to existing equity compensation or stock purchase plans of the Company; (C) issuance or sale of options or other rights to acquire from the Company, directly or indirectly, securities of the Company or any securities convertible into or exchangeable for any such securities, other than options issued to directors, employees and consultants in the ordinary course of business, consistent with past practice; (D) issuance or sale of any stock, bond or other corporate security other than equity securities to directors, employees and consultants pursuant to existing equity compensation or stock purchase plans of the Company; (E) declaration or making of any payment or distribution 19 Loan Agreement to stockholders or purchase or redemption of any share of its capital stock or other security other than to or from directors, officers and employees of the Company as compensation for or in connection with services rendered to the Company or for reimbursement of expenses incurred on behalf of the Company; (F) sale, assignment or transfer of any of its intangible assets except in the ordinary course of business, consistent with past practice, or cancellation of any debt or claim except in the ordinary course of business, consistent with past practice; (G) waiver of any right of substantial value whether or not in the ordinary course of business; (H) material change in officer compensation; or (I) other commitment (contingent or otherwise) to do any of the foregoing; (iv) any creation, sufferance or assumption by the Company of any Lien on any asset or any making of any loan, advance or capital contribution to or investment in any Person, in an aggregate amount which exceeds $10,000 outstanding at any time; (v) any entry into, amendment of, relinquishment, termination or non-renewal by the Company of any material contract, license, lease, transaction, commitment or other right or obligation, other than in the ordinary course of business, consistent with past practice; or (vi) any transfer or grant of a material right with respect to the intellectual property owned or licensed by the Company. 3.19 Regulatory Permits. The Company possesses all certificates, approvals, foreign regulatory authorities necessary to conduct their businesses as currently conducted, except where the failure to possess such permits does not, and could not have, individually or in the aggregate, a Material Adverse Effect (the “Material Permits”), and the Company has not received any written notice of proceedings relating to the revocation or modification of any Material Permits. 3.20 Transactions with Affiliates and Employees. Except as set forth on Schedule 3.20 to the Disclosure Schedule hereto, none of the officers or directors of the Company and, to the knowledge of the Company, none of the employees of the Company, is presently a party to any transaction or agreement with the Company (other than for services as employees, officers and directors or severance agreements related to prior service) exceeding $60,000, including any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from, or otherwise requiring payments to or from any officer, director or such employee or, to the knowledge of the Company, any entity in which any officer, director, or any such employee has a substantial interest or is an officer, director, agent or partner. 3.21 Insurance. The Company is insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary for the business in which the Company is engaged. The Company has no reason to believe that it will not be able to renew existing insurance coverage for itself as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary or appropriate to continue business. 3.22 Internal Accounting Controls. The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with United States generally accepted accounting principles and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorizations; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. 20 Loan Agreement 3.23 Solvency. (a) The Company is and will remain Solvent after giving effect to the transactions contemplated by this Agreement. (b) The Company is and, upon the occurrence of any obligations that will be required to be paid on or in respect of the Company’s existing debts and other liabilities (including known and contingent liabilities) as they mature in the normal course of business on any date on which this representation is made, will be, Solvent. (c) No transfer of Property is being made by the Company and no obligation is being incurred by the Company in connection with the transactions contemplated by this Agreement or the other Loan Documents with the intent to hinder, delay or defraud either present or future creditors of the Company. 3.24 Environmental Compliance. The Company is not in violation of any applicable statute, law or regulation (including any applicable Environmental Protection Laws) relating to the environment or occupational health and safety, and no material expenditures are or will be required in order to comply with any such existing statute, law or regulation. 3.25 Ranking of Note. The Note is senior secured indebtedness, ranking pari passu with the future senior indebtedness of the Company. 3.26 Disclosure. The Company understands and confirms that the Purchaser will rely on the representations and covenants contained herein in effecting the transactions contemplated by this Agreement and the other Loan Documents, and in the securities of the Company after the Closing. All disclosure provided to the Purchaser regarding the Company, its business and the transactions contemplated hereby, including the Schedules to this Agreement furnished by or on behalf of the Company, taken as a whole is true and correct and does not contain any untrue statement of material fact or omit to state any material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. The Company acknowledges and agrees that no Purchaser makes or has made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Section 4. 3.27 Deposit Accounts; Securities Accounts. Set forth on Schedule 3.27 is a listing of all of the Grantors’ Deposit Accounts and Securities Accounts as of the Closing Date, including, with respect to each bank or securities intermediary (a) the name and address of such Person, (b) the account numbers of the Deposit Accounts or Securities Accounts maintained with such Person, and (c) the relevant Grantor or Grantors. 3.28 Accounts and Notes Receivable. Except as set forth in Schedule 3.9(a) of the Disclosure Schedules, all the accounts receivable and notes receivable owing to the Company as of the date hereof are set forth on Schedule 3.28 of the Disclosure Schedules and constitute valid and enforceable claims (without any previously exercised rights of set off or compromise) arising from bona fide transactions in the ordinary course of business, consistent with past practice, and there are no known or asserted claims, refusals to pay or other rights of set-off against any thereof. Except as provided on Schedule 3.28 of the Disclosure Schedules, there is (i) no account debtor or note debtor delinquent in its payment by more than ninety days; (ii) no 21 Loan Agreement account debtor or note debtor that has refused (or threatened to refuse) to pay its obligations for any reasons; (iii) no account debtor or note debtor that is insolvent or bankrupt other than as set forth on Schedule 3.28 of the Disclosure Schedules and (iv) no account receivable or note receivable which is hypothecated or pledged to any person (except in connection with the Note) by the Company or any of its Subsidiaries. 3.29 Perfection Certificate. The information contained in the Perfection Certificate is true, complete and correct as of the date thereof. 4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser represents and warrants, severally (as to itself) and not jointly, to the Company as follows: 4.1 Authorization. All action on the part of the Purchaser and, if applicable, its officers, directors, managers, members, shareholders and/or partners necessary for the authorization, execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party, and the consummation of the transactions contemplated herein and therein, has been taken. When executed and delivered, each of this Agreement and the other Loan Documents to which it is a party will constitute the legal, valid and binding obligation of the Purchaser, enforceable against the Purchaser in accordance with its terms, except as such may be limited by bankruptcy, insolvency, reorganization or other laws affecting creditors’ rights generally and by general equitable principles. The Purchaser has all requisite corporate power and authority to enter into each of this Agreement and the other Loan Documents to which it is a party, and to carry out and perform its obligations under the terms hereof and thereof. 4.2 Investor Status; Etc. The Purchaser certifies and represents to the Company that it is an “accredited investor” as defined in Rule 501 of Regulation D promulgated under the Securities Act and was not organized for the purpose of acquiring the Note. The Purchaser has sufficient knowledge and experience in investing in companies similar to the Company so as to be able to evaluate the risks and merits of its investment in the Company. 4.3 No Conflict. The execution and delivery by the Purchaser of this Agreement and the other Loan Documents to which it is a party, and the consummation of the transactions contemplated hereby and thereby, will not conflict with or result in any violation of or default by the Purchaser (with or without notice or lapse of time, or both) under any provision of the organizational documents of the Purchaser. 4.4 Brokers. The Purchaser has not retained, utilized or been represented by any broker or finder in connection with the transactions contemplated by this Agreement. part of the Purchaser in connection with the execution, delivery or performance of this Agreement and the consummation of the transactions contemplated herein have been obtained and are effective as of the date hereof. 22 Loan Agreement 5. CONDITIONS PRECEDENT. 5.1 Conditions to the Obligation of the Purchaser to Consummate the Closing. The obligation of the Purchaser to consummate at the Closing the purchase and payment for the Note is subject to the satisfaction (or waiver by the Purchaser) of the following conditions precedent: (a) The representations and warranties of the Company contained herein shall be true and correct on and as of the date hereof. The Company shall have performed or complied with all obligations and conditions herein required to be performed or complied with by the Company on or prior to the date hereof. (b) No proceeding challenging this Agreement or the other Loan Documents, or the transactions contemplated hereby or thereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official or shall be pending against or involving the Company. (c) The sale of the Note to the Purchaser shall not be prohibited by any law, rule, governmental order or regulation. All necessary consents, approvals, licenses, permits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or with any other Person with respect to any of the transactions contemplated hereby shall have been duly obtained or made and shall be in full force and effect. (d) All instruments and corporate proceedings of the Company in connection with the transactions contemplated by this Agreement and the Loan Documents shall be satisfactory in form and substance to the Purchaser, and the Purchaser shall have received copies (executed or certified, as may be appropriate) of all documents which any Purchaser may have reasonably requested in connection with such transactions. (e) The Purchaser shall have received from Goodwin Procter LLP, special counsel to the Company, an opinion addressed to Agent and the Purchaser, dated the Closing Date and substantially in the form of Exhibit C hereto. (f) The Subsidiary Guaranty shall have been executed and delivered to the Agent by DayStar Solar. (g) The Security Agreement shall have been executed and delivered to the Purchaser by the Company. (h) The Purchaser shall have received from the Company an original Note in the original principal amount set forth opposite the Purchaser’s name on Exhibit A hereto. (i) The Company shall have delivered, in form and substance satisfactory to the Purchaser, a certificate dated the Closing Date and signed by the secretary or another appropriate executive officer of the Company, certifying (i) that attached (A) certified copy of the Certificate of Incorporation, (B) certified good standing certificate from the Secretary of State or equivalent of the jurisdiction of its organization, (C) the By-Laws and (D) resolutions of the Board approving this Agreement and the Loan Documents, in each case, are true, complete and correct and remain in full force and effect as of the date hereof, and (ii) as to the incumbency and specimen signature of each officer of the Company executing this Agreement, the Loan Documents and any other document delivered in connection herewith on behalf of the Company. 23 Loan Agreement (j) DayStar Solar shall have delivered, in form and substance satisfactory to the Purchaser, a certificate dated the Closing Date and signed by the secretary or another appropriate executive officer of the Company, certifying (i) that attached (A) certified copy of the Certificate of Formation, (B) certified good standing certificate from the Secretary of State or equivalent of the jurisdiction of its organization, (C) its operating agreement and (D) resolutions of the Board approving this Agreement and the Loan Documents, in each case, are true, complete and correct and remain in full force and effect as of the date hereof, and (ii) as to the incumbency and specimen signature of each officer of the Company executing this Agreement, the Loan Documents and any other document delivered in connection herewith on behalf of the Company (k) The Company shall deliver to the Purchaser, a certificate in form and substance satisfactory to the Purchaser, dated the Closing Date and signed by the Company’s chief executive officer, certifying that (i) the representations and warranties of the Company contained in Section 3 hereof are true and correct in all respects on the Closing Date and (ii) the Company has performed and complied with all of the agreements and conditions set forth or contemplated herein that are required to be performed or complied with by the Company on or before the Closing Date. (l) The Purchaser shall have received an Officer’s Certificate duly executed by the chief executive officer and chief financial officer of the Company in substantially the form of Exhibit E (a “Solvency Certificate”) to the effect that (a) the Company and its Subsidiaries will be Solvent upon the consummation of the transactions contemplated herein and in the other Loan Documents; and (b) containing such other statements with respect to the solvency of the Company and matters related thereto as the Purchaser shall reasonably request. (m) The Collateral Agent shall have received evidence satisfactory to it that the Company shall have taken or caused to be taken all such actions, executed and delivered or caused to be executed and delivered all such agreements, documents and instruments, and made or caused to be made all such filings and recordings (other than the filing or recording of items in clauses (ii), (iii) and (iv) below that may be necessary or, in the opinion of the Collateral Agent, desirable in order to create in favor of the Collateral Agent, for the benefit of the Secured Parties, a valid and upon such filing and recording) perfected First Priority security interest in the entire personal and mixed property Collateral. Such actions shall include the following: (i) Delivery to the Collateral Agent of (A) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to the Collateral Agent) representing all Capital Stock pledged pursuant to the Security Agreements, and (B) all promissory notes or other instruments (duly endorsed, where appropriate, in a manner satisfactory to the Collateral Agent) evidencing any Collateral; 24 Loan Agreement (ii) Delivery to the Collateral Agent of (A) the results of a recent search, by a Person satisfactory to the Collateral Agent, of all effective UCC financing statements and fixture filings and all judgment and tax lien filings which may have been made with respect to any personal property of the Company, together with copies of all such filings disclosed by such search, and (B) UCC termination statements, duly executed or authorized by all applicable Persons for filing in all applicable jurisdictions as may be necessary to terminate any effective UCC financing statements disclosed in such search (other than any such filings in respect of Liens permitted to remain outstanding pursuant to the terms of this Agreement); (iii) Delivery to the Collateral Agent of UCC financing statements and, where appropriate, fixture filings, duly executed or authorized by the Company with respect to all personal and mixed property Collateral of such Grantor, for filing in all jurisdictions as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests created in such Collateral pursuant to the Collateral Documents; (iv) Delivery to the Collateral Agent of all cover sheets or other documents or instruments required to be filed with the United States Patent and Trademark Office and/or the United States Copyright Office in order to create or perfect (v) Delivery to the Collateral Agent of such control agreements with financial institutions and other Persons in order to perfect Liens in respect of Deposit Accounts, Securities Accounts and other Collateral pursuant to the Collateral Documents; (n) The Company shall have reimbursed to the Purchaser the cost and expenses of the Purchaser, including but not limited to the reasonable fees and out-of-pocket expenses of Purchaser’s legal counsel. 5.2 Conditions to the Obligation of the Company to Consummate the Closing. The obligation of the Company to consummate the Closing and to issue and sell the Note to the Purchaser at the Closing is subject to the satisfaction of the following conditions precedent: (a) The representations and warranties of the Purchaser contained herein shall be true and correct in all respects on and as of the Closing Date. (b) The Purchaser shall have performed all obligations and conditions herein required to be performed or complied with by the Purchaser on or prior to the Closing Date. (c) No proceeding challenging this Agreement or the Loan Documents, or the against or involving the Purchaser. 25 Loan Agreement (d) The sale of the Note by the Company shall not be prohibited by any law, and filings with, any governmental or administrative agency or any other Person with respect to any of the transactions contemplated hereby shall have been duly obtained or made and shall be in full force and effect. (e) All instruments and corporate proceedings in connection with the transactions contemplated by this Agreement to be consummated at the Closing shall be satisfactory in form and substance to the Company, and the Company shall have received counterpart originals, or certified or other copies of all documents, including without limitation records of corporate or other proceedings, which it may have reasonably requested in connection therewith. 6. CERTAIN COVENANTS AND AGREEMENTS. 6.1 Events of Default. (a) “Event of Default,” wherever used herein with respect to the Note, means any one of the following events (whatever the reason for such Event of Default and whether or not it shall be occasioned by the provisions of this Agreement or be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body): (i) default in the payment of any interest upon any Note, when such interest becomes due and payable, and continuance of such default for a period of 5 Business Days; or (ii) default in the payment of the principal (at the Applicable Price) of any Note when it becomes due and payable at its maturity; or (iii) default in the performance, or breach, of any other covenant in Section 2 with respect to the Note; or (iv) default in the performance, or breach, of any covenant, representation or warranty of the Company in this Agreement with respect to the Note (other than those referred to in subsections (i), (ii) and (iii) above) and continuance of such default for a period of 30 days, unless such breach is waived by the Majority Holders; or (v) a default under any bonds, debentures, notes or other evidences of indebtedness for money borrowed by the Company or under any mortgages, indentures, instruments or other agreements under which there may be issued or by which there may be secured or evidenced any indebtedness for money borrowed by the Company, whether such indebtedness now exists or shall hereafter be created, which indebtedness, individually or in the aggregate, has a principal amount outstanding in excess of $100,000; or 26 Loan Agreement (vi) judgment or judgments for the payment of money in an amount, individually or in the aggregate, of at least $200,000 shall be rendered against the Company and shall remain unsatisfied and unstayed for a period of twenty (20) days; or (vii) the Company, pursuant to or within the meaning of any Bankruptcy Law: A. commences a voluntary case, B. consents to the entry of an order for relief against it in an involuntary case, C. consents to the appointment of a Custodian of it or for all or substantially all of its property, or D. makes a general assignment for the benefit of its creditors; or (viii) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that: A. is for relief against the Company in an involuntary case, B. appoints a Custodian of the Company or for all or substantially all of the property of the Company, or C. orders the winding up or liquidation of the Company, and the order or decree remains unstayed and in effect for 60 days. As used in this Section 6.1(a) only, the term “Bankruptcy Law” means title 11, U.S. Code or any similar Federal or State law for the relief of debtors and the term “Custodian” means any receiver, agent, assignee, liquidator or other similar official under any Bankruptcy Law. (b) Acceleration of Maturity; Rescission and Annulment. If an Event of Default occurs and is continuing for 10 days from the date written notice is provided to the Company (other than an Event of Default specified in Section 6.1(a)(i), (ii), (iii), (vii) or (viii)), then and in every such case the Majority Holders may declare the principal and all other amounts outstanding pursuant to the Note to be due and payable immediately, by a notice in writing to the Company, and upon any such declaration such principal shall become immediately due and payable. If an Event of Default specified in Section 6.1(a)(i), (ii) or (iii) with respect to the Note at the time outstanding occurs and is continuing for 10 days from the date written notice is provided to the Company, then and in every such case the Holder of the Note (or of any note issued in replacement thereof) may declare the principal of such Note to be due and payable immediately, by a notice in writing to the Company, and upon any such declaration such principal shall become immediately due and payable. If an Event of Default specified in Section 27 Loan Agreement 6.1(a)(vii) or (viii) occurs, the principal of, and accrued interest on, all the Notes shall automatically, and without any declaration or other action on the part of any Holder, become immediately due and payable. At any time after such a declaration by Majority Holders of acceleration with respect to the Note has been made and before a judgment or decree for payment of the money due has been obtained, the Majority Holders, by written notice to the Company, may rescind and annul such declaration and its consequences if: (i) the Company has paid a sum sufficient to pay: A. all overdue installments of interest on all the Outstanding Notes, B. the principal (at the Applicable Price) of any Outstanding Notes that have become due otherwise than by such declaration of acceleration and interest thereon at the rate or rates borne by or provided for in such Outstanding Notes, C. to the extent that payment of such interest is lawful, interest upon overdue installments of interest at the rate or rates borne by or provided for in the Outstanding Notes, and (ii) all Events of Default with respect to the Note, other than the nonpayment of the principal (at the Applicable Price) of or interest on the Note which has become due solely by such declaration of acceleration, have been cured or waived as provided in this Agreement. No such rescission shall affect any subsequent default or impair any right consequent thereon. (c) Collection of Indebtedness and Suits for Enforcement by the Holders. The Company covenants that if: (i) there is a default in the payment of any installment of interest on any Note when such interest becomes due and payable and such default continues for a period of 5 Business Days, or (ii) there is a default in the payment of the principal (at the Applicable Price) of any Note at its Maturity, then the Company will pay, upon demand of the Holder of the Note, the whole amount then due and payable on such Note for principal (at the Applicable Price), interest and such other amounts due under the Note, with interest upon any overdue principal and, to the extent that payment of such interest shall be legally enforceable, upon any overdue installments of interest, if any, at the rate or rates borne by or provided for in such Note, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection. 28 Loan Agreement If the Company fails to pay such amounts forthwith upon such demand, the Holder, in its own name, may institute a judicial proceeding for the collection of the sums so due and unpaid, and may prosecute such proceeding to judgment or final decree, and may enforce the same against the Company or any other obligor upon such Note and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon such Note, wherever situated. If an Event of Default with respect to the Note occurs and is continuing, any Holder may, in its discretion, proceed to protect and enforce its rights by such appropriate judicial proceedings as the Holder shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Agreement or in aid of the exercise of any power granted herein, or to enforce any other proper remedy. (d) Limitation on Suits. No Holder shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Agreement to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Agreement, except in the manner herein provided and for the equal and ratable benefit of all such Holders, and each Holder, by taking possession and title to the Note, expressly agrees to the foregoing. (e) Unconditional Right of Holders to Receive Principal and Interest. Notwithstanding any other provision in this Agreement, the Holder of any Note shall have the right, which is absolute and unconditional to receive payment of the principal of, and interest on such Note on the respective due dates expressed in this Agreement and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder. (f) Rights and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes, no right or remedy herein conferred upon or reserved to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy. (g) Delay or Omission Not Waiver. No delay or omission of any Holder to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Holders. (h) Control by Holders. The Majority Holders shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Holders or exercising any powers conferred on the Holders with respect to the Note; provided that: (i) such direction shall not be in conflict with any rule of law or with this Agreement, 29 Loan Agreement (ii) such action shall not be unduly prejudicial to the Holders not joining therein. (i) Waiver of Past Defaults. The Majority Holders may on behalf of all Holders waive any past Default or Event of Default hereunder with respect to such Note and its consequences, except a Default or Event of Default: (i) in the payment of the principal (at the Applicable Rate) of or interest on any Note, or (ii) in respect of a covenant or provision hereof that under this Agreement cannot be modified or amended without the consent of the Holder of each Outstanding Security affected. Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Agreement; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon. 6.2 Consummation of the Transaction. On or before July 31, 2007, the Company shall have consummated the Transaction (or a similar equity financing), whereby the Company shall have raised Transaction Proceeds of not less than $25,000,000. 6.3 Waiver of Usury, Stay or Extension Laws. The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any usury, stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Agreement; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power, but will suffer and permit the execution of every such power as though no such law had been enacted. 6.4 Undertaking for Costs. All parties to this Agreement agree, and each Holder of any Note by its acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Agreement, the filing by any party litigant in such suit of any undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit having due regard to the merits and good faith of the claims or defenses made by such party litigant. 6.5 Payment of Principal and Interest. The Company covenants and agrees for the benefit of the Holders that it will duly and punctually pay the principal (at the Applicable Rate) of and interest on the Note in accordance with the terms of the Note and this Agreement. At the option of the Company, all payments of principal may be paid by check to the registered Holder of the Note or other person entitled thereto against surrender of such Notes. 30 Loan Agreement 6.6 Existence. The Company will do or cause to be done all things necessary to preserve and keep in full force and effect the corporate existence of the Company, and its rights (charter and statutory), except to the extent that the Board shall determine that the failure to do so would not have a Material Adverse Effect; provided, however, that the Company shall not be required to preserve any right or franchise if the Board shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and that the loss thereof is not disadvantageous in any material respect to the Holders. 6.7 Payment of Taxes and Other Claims. The Company will pay or discharge or cause to be paid or discharged, before the same shall become delinquent, (a) all Taxes, assessments and governmental charges levied or imposed upon it or upon the income, profits or property of the Company, and (b) all lawful claims for labor, materials and supplies which, if unpaid, might by law become a Lien upon the property of the Company and have a Material Adverse Effect; provided, however, that the Company shall not be required to pay or discharge or cause to be paid or discharged any such Tax, assessment, charge or claim whose amount, applicability or validity is being contested in good faith by appropriate proceedings. 6.8 Further Assurances; Additional Collateral. (a) The Company will and will cause its Subsidiaries to do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register, any and all such further acts, deeds, conveyances, security agreements, mortgages, assignments, estoppel certificates, financing statements and continuations thereof, termination statements, notices of assignment, transfers, certificates, assurances and other instruments the Collateral Agent or the Holder may reasonably require from time to time in order to (i) carry out the purposes of this Agreement or any other Loan Documents, (ii) subject any of the Properties, rights or interests covered by any of the Collateral Documents to the Liens created by any of the Collateral Documents, (iii) perfect and maintain the validity, effectiveness and priority of any of the Collateral Documents and the Liens intended to be created thereby and the First Priority nature thereof and (iv) assure, convey, grant, assign, transfer, preserve, protect and confirm to the Collateral Agent or the Holders the rights granted or now or hereafter intended to be granted to the Collateral Agent or any Holders under any Loan Document or under any other document executed in connection therewith. (b) With respect to any Property acquired by the Company or a Subsidiary after the Closing Date as to which the Collateral Agent, for the benefit of the Secured Parties, does not have a perfected First Priority security interest pursuant to the Collateral Documents (other than Property expressly excluded from the Collateral pursuant to the Loan Documents and subject to Section 6.9 with respect to new Subsidiaries and Section 6.10 with respect to newly acquired real property), promptly execute and deliver to the Collateral Agent such amendments to the Collateral Documents or such other documents as the Collateral Agent deems necessary or advisable to grant to the Collateral Agent, for the benefit of the Secured Parties, a security interest in such Property and take all other actions necessary or advisable to grant to the Collateral Agent, for the benefit of the Secured Parties, a perfected First Priority security interest in such Property, including, without limitation, the filing of UCC financing statements. 31 Loan Agreement 6.9 Execution of Subsidiary Guaranty and Personal Property Collateral Documents After the Closing Date. (a) In the event that any Person becomes a Material Subsidiary of the Company after the date hereof, the Company will (i) promptly notify the Holders and the Agent of that fact, and (ii) except to the extent the Company delivers satisfactory evidence to the Agent that the granting of a Guaranty of the Obligations by such Subsidiary and the granting of a Lien on the Property of such Subsidiary to secure the Obligations (A) would result in a material increase in the tax liability of the Company and its Subsidiaries (based on the amount of pre-tax income at the time of determination) or (B) would be prohibited by Applicable Law, cause such Subsidiary to execute and deliver to the Holders and the Collateral Agent a Subsidiary Guaranty Joinder and a Security Agreement Joinder (to the extent required by the terms of the Security Agreements) and to take all such further actions and execute all such further documents and instruments (including actions, documents and instruments comparable to those described in Section 5.1(k)) as may be necessary or, in the opinion of the Collateral Agent, desirable to create in favor of the Collateral Agent, for the benefit of the Secured Parties, a valid and perfected First Priority Lien on all of the personal and mixed Property of such Subsidiary described in the applicable forms of Collateral Documents. In addition, as provided in the Security Agreement, the Company will, or will cause any Subsidiary that owns the Capital Stock of any Person that becomes a Subsidiary of the Company to, execute and deliver to the Collateral Agent a supplement to the Security Agreement and to deliver to Collateral Agent all certificates representing such Capital Stock of such Person (accompanied by irrevocable undated stock powers, duly endorsed in blank). (b) In the event that any Person becomes a Non-U.S. Subsidiary of a U.S. Subsidiary of the Company after the date hereof, the Company will promptly notify the Holders and the Collateral Agent of that fact and, if such Non-U.S. Subsidiary is directly owned by a U.S. Subsidiary of the Company, cause such Non-U.S. Subsidiary to execute and deliver to the Holders and the Collateral Agent such documents and instruments and take such further actions (including actions, documents and instruments comparable to those described in Section 5.1(k)) as may be necessary or, in the reasonable opinion of the Collateral Agent, desirable to create in favor of the Collateral Agent, for the benefit of the Secured Parties, a valid and perfected First Priority Lien on 66% of the Capital Stock of such Non-U.S. Subsidiary. (c) In the event that any Person becomes a Material Subsidiary of the Company after the date hereof, the Company will deliver to the Holders and the Collateral Agent, together with such Loan Documents described in this Section 6.9, (i) certified copies of such Subsidiary’s Organizational Documents, together with a good standing certificate from the Secretary of State or equivalent of the jurisdiction of its organization and each other state in which such Person is qualified to do business and, to the extent generally available, a certificate or other evidence of good standing as to payment of any applicable franchise or similar taxes from the appropriate taxing authority of each of such jurisdictions, each to be dated a recent date prior to their delivery to the Holders and the Collateral Agent, (ii) a certificate executed by the secretary or similar officer of such Subsidiary as to (A) the fact that the attached resolutions of the Governing Body of such Subsidiary approving and authorizing the execution, delivery and performance of such Loan Documents are in full force and effect and have not been modified or amended and (B) the incumbency and signatures of the officers of such Subsidiary executing 32 Loan Agreement such Transactional Documents, (iii) an executed supplement to the applicable Security Agreements evidencing the pledge of the Capital Stock of such Subsidiary by the Company or a Subsidiary of the Company that owns such Capital Stock, accompanied by a certificate evidencing such Capital Stock, together with an irrevocable undated stock power duly endorsed in blank and satisfactory in form and substance to the Collateral Agent, and (iv) a favorable opinion of outside counsel to such Subsidiary, from such counsel and in form and substance reasonably satisfactory to the Collateral Agent, as to (A) the due organization and good standing of such Subsidiary, (B) the due authorization, execution and delivery by such Subsidiary of such Transactional Documents, (C) the enforceability of such Loan Documents against such Subsidiary and (D) such other matters (including matters relating to the creation and perfection of Liens in any Collateral pursuant to such Loan Documents) as the Collateral Agent may reasonably request, all of the foregoing to be satisfactory in form and substance to the Collateral Agent. 6.10 Matters Relating to Additional Real Property. (a) From and after the Closing Date, in the event that (i) the Company or any Grantor acquires any Real Property Asset in fee interest or (ii) at the time any Person becomes a Grantor, such Person owns or holds any Real Property Asset in fee interest, in the case of clause (ii) above excluding any such real property the encumbrancing of which requires the consent of any then-existing senior lienholder, where the Company and its Subsidiaries have attempted in good faith, but are unable, to obtain such senior lienholder’s consent (any such non-excluded Real Property Asset described in the foregoing clause (i) or (ii) being an “Additional Mortgaged Property”), the Company or such Subsidiary will deliver to the Holders and the Collateral Agent, as soon as practicable after such Person acquires such Additional Mortgaged Property or becomes a Subsidiary, as the case may be, a fully executed and notarized mortgage (an “Additional Mortgage”), in proper form for recording in all appropriate places in all applicable jurisdictions, encumbering the interest of such Grantor in such Additional Mortgaged Property; and such opinions, appraisal, documents, title insurance, environmental reports as may be reasonably required by the Collateral Agent. (b) From and after the Closing Date, in the event that the Company or any Grantor acquires any Material Leasehold Property or (ii) at the time any Person becomes a Grantor, such Person owns or holds any Material Leasehold Property, in the case of clause (ii) above excluding any such Material Leasehold Property where the Company and its Subsidiaries have attempted in good faith, but are unable, to obtain such lessor’s agreement to enter into a Landlord Consent, Estoppel and Collateral Access Agreement, the Company or such Grantor will deliver to the Purchaser and the Collateral Agent, as soon as practicable after such Person acquires such Material Leasehold Property or becomes a Subsidiary Guarantor, as the case may be, a fully executed Landlord Consent, Estoppel and Collateral Access Agreement. 6.11 Deposit Accounts, Securities Accounts and Cash Management Systems. The Company shall not establish, and shall cause its Subsidiaries not to establish, any Deposit Account or Security Account other than (i) those described on Schedule 3.27, (ii) Deposit Accounts used solely to fund payroll and payroll taxes and (iii) Deposit Accounts that collectively do not maintain an aggregate balance in excess of $25,000 at any time. In addition, the Company may establish Deposit Accounts or Security Accounts (y) established with a 33 Loan Agreement depository bank listed on Schedule 6.11 or another depository bank otherwise reasonably acceptable to the Collateral Agent and (z) as to which the Company shall have delivered to the Collateral Agent within thirty (30) days of the opening of such account a Control Agreement in form and substance reasonably satisfactory to the Collateral Agent. No Grantor shall violate directly or indirectly any bank agency agreement, Control Agreement or lockbox agreement in favor of the Agent (on behalf of the Holders). 6.12 Publicity. Except to the extent required by Applicable Law, neither (a) the Company nor any of its Affiliates nor (b) the Purchaser or any of its Affiliates shall, without the written consent of the other, make any public announcement or issue any press release with respect to the transactions contemplated by this Agreement. In no event will either (a) the Company, or any of its Affiliates or (b) any Purchaser or any of its Affiliates make any public announcement or issue any press release with respect to the transactions contemplated by this Agreement without consulting with the other party and giving the other party a reasonable opportunity to review and, to the extent such party is specially named in such announcement or press release, approve, the content of such public announcement or press release. 6.13 Required Approvals. As promptly as practicable after the date of this Agreement, the Company shall make, or cause to be made, all filings permitted to be made post-closing with any governmental or administrative agency or any other Person necessary to consummate the transactions contemplated hereby. 6.14 Use of Proceeds. The Company shall keep the Note Sale Proceeds, to the extent the same have not been used, in a Deposit Account. The Note Sale Proceeds may be used for general corporate purposes, including the payment of all expenses incurred in connection with the offering of the Note. At any time that an Event of Default shall not be continuing, the Company may use the Note Sale Proceeds in the ordinary course of business, provided, however, that the Company may not withdraw the Note Sale Proceeds from the Deposit Account in excess of the following amounts: (i) during the Monthly Period beginning on the date hereof, $1,500,000; and (ii) during each subsequent Monthly Period, $1,200,000. 6.15 Expenses. The Company agrees to pay the reasonable and actual fees and expenses of the Holders, including but not limited to the fees and expenses of legal counsel, incurred in connection with any Event of Default hereunder by the Company, any enforcement or collection proceedings brought by the Holders, or any bankruptcy proceeding of the Company, including any fees and expenses of an agent to act on behalf of such Holders who may be appointed at the time of such event. 6.16 Indebtedness. The Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to, any Indebtedness (including Contingent Obligations other than as provided in Section 6.18 below) that is secured by the assets or properties of the Company and/or its Subsidiaries, except with respect to Permitted Indebtedness. 6.17 Liens and Related Matters. The Company will not, and will not permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or permit to exist any Lien on or with respect to any Property of any kind (including any document or instrument in respect of 34 Loan Agreement goods or accounts receivable) of the Company or any of its Subsidiaries, whether now owned or hereafter acquired, or any income or profits therefrom, or file or permit the filing of, or permit to remain in effect, any financing statement, mortgage, deed of trust or other similar notice of any Lien with respect to any such Property, income or profits under the UCC or under any similar recording or notice statute, except Permitted Liens. (b) Neither the Company nor any of its Subsidiaries will enter into any agreement prohibiting the creation or assumption of any Lien upon any of its (c) The Company will not, and will not permit any of its Subsidiaries to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance, condition, prohibition or restriction of any kind on the Company’s or such Subsidiary’s right to: (a) incur or repay Indebtedness (whether owing to the Company, any Subsidiary of the Company or otherwise); (b) guarantee the Obligations pursuant to the Subsidiary Guaranty; (c) amend, modify, extend or renew any agreement evidencing Indebtedness; (d) repay any obligations owed to the Company or any Subsidiary; (e) make loans or advances to the Company or any Subsidiary; (f) pay dividends or make any other distributions on any Subsidiary’s Capital Stock owned by the Company or any other Subsidiary of the Company; or (g) transfer any of its Property to the Company or any Subsidiary, in each case except as provided in this Agreement or the other Loan Documents and, in the case of clause (g). 6.18 Contingent Obligations. The Company will not, and will not permit any of its Subsidiaries to, directly or indirectly, create or become or remain liable with respect to any Contingent Obligation, except: (a) Subsidiaries of the Company may become and remain liable with respect to Contingent Obligations in respect of the Subsidiary Guaranty; (b) the Company and its Subsidiaries may become and remain liable with respect to Contingent Obligations under guarantees in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the Company and its Subsidiaries; and (c) the Company and its Subsidiaries may become and remain liable with respect to Contingent Obligations in respect of any Indebtedness of the Company or any of its Subsidiaries permitted by Section 6.16. 6.19 Disposal of Assets. Other than Permitted Dispositions, the Company shall not, and shall not permit any of its Subsidiaries to, convey, sell, lease, license, assign, transfer, or otherwise Dispose of any assets of the Company or of its Subsidiaries. 6.20 Name Change. The Company shall not, and shall not permit any of its Subsidiaries to, change the name, organizational identification number, jurisdiction of organization, or organizational identity of the Company or any of its Subsidiaries (or any local equivalent of any of the foregoing); provided, however, that the Company or any of its Subsidiaries may change its name or jurisdiction of organization upon at least 30 days prior 35 Loan Agreement written notice by the Company to Agent of such change and so long as, at the time of such written notification, the Company or such Subsidiary provides any financing statements or other perfection documents necessary to perfect and continue perfection of Agent’s Liens. 6.21 Nature of Business. The Company shall not, and shall not permit any of its Subsidiaries to, change the principal nature of such Person’s business. 6.22 Restriction of Fundamental Changes. The Company shall not, and shall not permit any of its Subsidiaries to, materially alter the organizational, capital or legal structure of the Company or any of its Subsidiaries, or enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sub-lease (as lessor or sublessor), transfer or otherwise Dispose of, in one transaction or a series of transactions, all or any part of its business or Property (including its notes or receivables and Capital Stock of a Subsidiary, whether newly issued or outstanding), whether now owned or hereafter, except: (a) any Subsidiary of the Company may be merged with or into the Company or any Wholly-Owned Subsidiary that is a Grantor, or be liquidated, wound up or dissolved, or all or any part of its business or Property may be conveyed, sold, leased, transferred or otherwise Disposed of, in one transaction or a series of transactions, to the Company or any Wholly-Owned Subsidiary that is a Grantor; provided that, in the case of such a merger, the Company or such Wholly-Owned Subsidiary that is a Grantor, respectively, shall be the continuing or surviving Person; (b) the Company and its Subsidiaries may make Permitted Dispositions; (c) in order to resolve disputes that occur in the ordinary course of business, the Company and its Subsidiaries may discount or otherwise compromise for less than the face value thereof, notes or accounts receivable; and (d) any Person may be merged with or into the Company if the acquisition of the Capital Stock of such Person by the Company would have been permitted pursuant to Sections 6.16, 6.17 and 6.18; provided that (i) the Company shall be the continuing or surviving Person, and (ii) no Default or Event of Default shall have occurred or be continuing after giving effect thereto. 6.23 Change of Control. The Company shall not cause, permit, or suffer, directly or indirectly, any Change of Control. 6.24 Distributions. The Company shall not make any distribution or declare or pay any dividends on, or purchase, acquire, redeem, or retire any of any Capital Stock of the Company or any of its Subsidiaries, of any class, whether now or hereafter outstanding, except that a Subsidiary Guarantor may make may make a cash distribution, capital contribution or declare or make dividend payments to the Company. 6.25 Investments. Except for Permitted Investments, the Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, make or acquire any 36 Loan Agreement Investment, or incur any liabilities (including Contingent Obligations) for or in connection with any Investment; provided, however, that no Grantor shall have Permitted Investments in Deposit Accounts or Securities Accounts in an aggregate amount in excess of $25,000 at any time unless such Person, and the applicable securities intermediary or bank have entered into Control Agreements governing such Permitted Investments in order to perfect (and further establish) Agent’s Liens in such Permitted Investments. 6.26 Transactions with Affiliates. The Company will not, and will not permit any of its Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company, on terms that are less favorable to the Company or that Subsidiary, as the case may be, than those that might be obtained at the time from Persons who are not an Affiliate; provided that the foregoing restriction shall not apply to (i) any transaction between the Company and any of its Wholly-Owned Subsidiaries or between any of its Wholly-Owned Subsidiaries, (ii) reasonable and customary fees paid to members of the Governing Bodies of the Company and its Subsidiaries, (iii) transactions between the Company or a Subsidiary, on the one hand, and Lampe, Conway & Co. LLC or its Affiliates, on the other hand, provided, further that, other than as permitted pursuant to clause (ii) above, in no event will the Company or any of its Subsidiaries pay, at any time, any fees (whether in the form of cash, equity incentives or otherwise) to any Affiliates for management, consulting or similar services. 6.27 Wholly-Owned Subsidiaries. Neither the Company nor any Subsidiary of the Company will own, form or acquire any Subsidiary other than Subsidiaries that are Wholly-Owned Subsidiaries of the Company. 6.28 Post-Closing Covenants. The Company will satisfy the post-closing covenants set forth on Schedule 6.28 within the time periods set forth therein. 6.29 Assets of DayStar Solar. In the event that the aggregate assets of DayStar Solar shall increase to a value of $50,000 or more, the Company shall, within ten Business Days, deliver to Agent (or cause to be delivered to Agent) a customary legal opinion, in a form and from a Person reasonably acceptable to Agent, stating that Agent’s Liens on the Collateral owned by DayStar Solar are perfected. 7. INDEMNIFICATION. 7.1 By the Company. The Company agrees to indemnify, defend and hold harmless the Purchaser and its Affiliates and their respective officers, directors, agents, employees, subsidiaries, partners, members and controlling persons (collectively, the “Purchaser Indemnitees”, each a “Purchaser Indemnitee”) to the fullest extent permitted by law from and against any and all claims, losses, liabilities, damages, deficiencies, judgments, assessments, fines, settlements, costs or expenses (including interest, penalties and reasonable fees, disbursements and other charges of counsel) (collectively, “Losses”) based upon, arising out of or otherwise in respect of any breach by the Company of any representation, warranty, covenant or agreement of the Company contained in this Agreement or in any other Loan Document. 37 Loan Agreement 7.2 Claims. All claims for indemnification by a Purchaser Indemnitee pursuant to this Section 7 shall be made as follows: (a) If a Purchaser Indemnitee has incurred or suffered Losses for which it is entitled to indemnification under this Section 7, then the Purchaser Indemnitee shall give prompt written notice of such claim (a “Claim Notice”) to the Company. Each Claim Notice shall state the amount of claimed Losses (the “Claimed Amount”), if known, and the basis for such claim. (b) Within 30 days after delivery of a Claim Notice, the Company (the “Indemnifying Party”) shall provide to the Purchaser Indemnitee (the “Indemnified Party”), a written response (the “Response Notice”) in which the Indemnifying Party shall: (i) agree that all of the Claimed Amount is owed to the Indemnified Party, (ii) agree that part, but not all, of the Claimed Amount (the “Agreed Amount”) is owed to the Indemnified Party, or (iii) contest that any of the Claimed Amount is owed to the Indemnified Party. The Indemnifying Party may contest the payment of all or a portion of the Claimed Amount only based upon a good faith belief that all or such portion of the Claimed Amount does not constitute Losses for which the Indemnified Party is entitled to indemnification under this Section 7. If no Response Notice is delivered by the Indemnifying Party within such 30-day period, then the Indemnifying Party shall be deemed to have agreed that all of the Claimed Amount is owed to the Indemnified Party. (c) If the Indemnifying Party in the Response Notice agrees (or is deemed to have agreed) that all of the Claimed Amount is owed to the Indemnified Party, then the Indemnifying Party shall owe to the Indemnified Party an amount equal to the Claimed Amount to be paid in the manner set forth in this Section 7. If the Indemnifying Party in the Response Notice agrees that part, but not all, of the Claimed Amount is owed to the Indemnified Party, then the Indemnifying Party shall owe to the Indemnified Party an amount equal to the agreed amount set forth in such Response Notice to be paid in the manner set forth in this Section 7. The parties agree that the foregoing shall not be deemed to provide that the Indemnifying Party is entitled to make a binding determination regarding any disputed amounts owed to an Indemnified Party, unless such Indemnified Party accepts and agrees to such determination, and both the Indemnified Party and Indemnifying Party shall retain all rights and remedies available to such party hereunder. (d) No delay on the part of the Indemnified Party in notifying the Indemnifying Party shall relieve the Indemnifying Party of any liability or obligation hereunder except to the extent of any actual prejudice caused by or arising out of such delay. 7.3 Payment of Claims. An Indemnifying Party shall make payment of any portion of any Claimed Amount that such Indemnifying Party has agreed in a Response Notice that it owes to an Indemnified Party, or that such Indemnifying Party is deemed to have agreed it owes to such Indemnifying Party, said payment to be made within thirty (30) days after such Response Notice is delivered by such Indemnifying Party or should have been delivered by such Indemnifying Party, as the case may be. 7.4 Non-Exclusivity. The parties hereby acknowledge and agree that in addition to remedies of the parties hereto in respect of any and all claims relating to any breach 38 Loan Agreement or purported breach of any representation, warranty, covenant or agreement that is contained in this Agreement pursuant to the indemnification provisions of this Section 7, all parties shall always retain the right to pursue and obtain injunctive relief in addition to any other rights or remedies hereunder. 8. AGENT 8.1 Appointment. The Purchaser hereby appoints Agent as the agent and collateral agent for the Holders hereunder and under the other Loan Documents, and authorizes Agent to take such actions on behalf of the Holders and to exercise such powers as are delegated to Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto, including, without limitation, the right of Agent to sign, file or authorize the filing of, and otherwise perform each act necessary in connection with, the release of any lien as a result of any permitted sale, lease, transfer or disposal of assets in accordance with the Loan Documents. Any reference herein to Agent shall include Agent in its capacity as agent and/or collateral agent, as context requires, hereunder and in any Loan Document. The Purchaser does hereby make, constitute and appoint Agent as the true and lawful attorney-in-fact of each Holder with full powers of substitution and resubstitution for each Holder, and in its name, place and stead, in any and all capacities, to execute for such Holder and on its behalf any document or agreement for which Agent is empowered to act on behalf of such Holder under this Article VIII, granting to Agent full power and authority to do and to perform each act requisite and necessary to be done, as fully to all intents and purposes as such Holder could do in person, provided that such power shall be granted only to the extent necessary to undertake the actions permitted to be done or taken by Agent under this Article VIII and the Loan Documents. The Purchaser hereby authorizes the Agent to take such action on behalf of each Holder under the provisions of this Agreement, the other Loan Documents and any other instruments and agreements referred to herein or therein and to exercise such powers and to perform such duties hereunder and thereunder as are specifically delegated to or required of Agent by the terms hereof and thereof and such other powers as are reasonably incidental hereto and thereto. Agent may perform any of its duties hereunder by or through its officers, directors, agents, employees or affiliates. The Agent shall not have, by reason of this Agreement or any of the other Loan Documents, a fiduciary relationship in respect of any Holder or the Company, and nothing in this Agreement or any of the other Loan Documents, expressed or implied, is intended to or shall be so construed as to impose upon Agent any obligations in respect of this Agreement or any of the other Loan Documents except as expressly set forth herein or therein. The Purchaser hereby accepts the pledges, mortgages and fiduciary assignments created for its benefit under the Security Agreement and empowers Agent to enter into such agreements and act as collateral agent on behalf of and for the benefit of each Holder. The provisions of this Article VIII are solely for the benefit of Agent and each Holder, and neither the Company nor any of its Subsidiaries shall have any rights as a third party beneficiary of any of the provisions hereof. In performing its functions and duties under this Agreement, Agent shall act solely as agent of the Holders and Agent shall not assume and shall not be deemed to have assumed any fiduciary relationship or other obligation or relationship of agency or trust with the Company or any of its Subsidiaries. 8.2 Rights of Agent. To the extent that the Person serving as Agent hereunder is also a Holder, such Person shall have the same rights and powers in its capacity as a Holder as 39 Loan Agreement any other Holder and may exercise the same as though it were not Agent, and such Person and its affiliates may provide debt financing, equity capital or other services (including financial advisory services) to, the Company or any of its Subsidiaries (or any Person engaged in similar business with the Company or any of its Subsidiaries thereof) as if such Person was not performing the duties specified herein, and may accept fees and other consideration from the Company or any of its Subsidiaries for services in connection with this Agreement and otherwise without having to account for the same to the Holders. 8.3 Administration of Collateral. Agent shall administer the Collateral and any Lien thereon for the benefit of the Holders in the manner provided herein and in the Security Agreement and in any other related Loan Documents; provided, however, that in the event of conflict between the provisions relating to administration of Collateral included in this Agreement and those included in the Security Agreement, the latter shall prevail. Agent shall exercise such rights and remedies with respect to the Collateral as are granted to it hereunder and as Collateral Agent under the Security Agreement and related documents and applicable law and as shall be directed by the Majority Holders. Upon payment in full of all Obligations under the Loan Documents, Agent and its affiliates shall promptly release any and all Liens, Collateral and other security arrangements entered into in connection with this Agreement, the Loan Documents and the transactions contemplated hereby and thereby. 8.4 Duties of Agent. Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, (a) Agent shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing, (b) Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that Agent is required to exercise in writing by the Majority Holders, and (c) except as expressly set forth herein and in the other Loan Documents, Agent shall not have any duty to disclose, nor shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the entity serving as Agent or any of its affiliates in any capacity. Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Majority Holders or in the absence of its own gross negligence or willful misconduct. Agent shall not be deemed to have knowledge of any Event of Default unless and until notice thereof is given to Agent by the Company or a Holder, and Agent shall not be responsible for or have any duty to ascertain or inquire into (v) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (w) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (x) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein, (y) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (z) the satisfaction of any condition set forth herein or therein, other than to confirm receipt of items expressly required to be delivered to Agent. In the event that Agent receives such a notice, such agent shall give prompt notice thereof to the other Holders and the Company (if received from a Holder) or to the Holders (if received from the Company). 40 Loan Agreement 8.5 Reliance by Agent. Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. Agent may consult with legal counsel (who may be counsel for a Holder, the Company or any Subsidiary thereof), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. 8.6 Appointment of Sub-Agents. Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by Agent. Agent and any such sub-agents may perform any and all its duties and exercise its rights and powers through their respective affiliates. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agents and to the affiliates of Agent and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agent. 8.7 Resignation of Agents. Agent may resign (in its capacity as agent, collateral agent, or both) at any time by notifying the Holders and the Company. Upon any such resignation, the Majority Holders shall have the right, in consultation with the Company, to appoint a successor. If no successor shall have been so appointed by the Majority Holders and shall have accepted such appointment within 30 days after the retiring the agent gives notice of its resignation, then the retiring agent may, upon not less than ten days’ notice, on behalf of the Holders, appoint a successor agent or collateral agent, as the case may be, or confer all the rights of the agent on the Majority Holders. Upon the acceptance of its appointment as the agent or collateral agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring (or retired) agent and the retiring agent shall be discharged from its duties and obligations hereunder. The fees payable by the Company to a successor agent or collateral agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the Agent’s resignation hereunder, the provisions of this Section shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as Agent. 8.8 Holder Non-Reliance. Independently and without reliance upon Agent, each Holder, to the extent it deems appropriate, has made and shall continue to make (i) its own independent investigation of the financial condition and affairs of the Company and its Subsidiaries in connection with the making of the loan hereunder and the taking or not taking of any action in connection herewith and (ii) its own appraisal of the creditworthiness of the Company and its Subsidiaries and, except as expressly provided in this Agreement, Agent shall not have any duty or responsibility, either initially or on continuing basis, to provide any Holder with any credit or other information with respect thereto, whether coming into its possession before the making of the loans hereunder or at any time or times thereafter. Agent shall not be responsible to any Holder for any recitals, statements, information, representations or warranties herein or in any document, certificate or other writing delivered in connection herewith or for the execution, effectiveness, genuineness, validity, enforceability, perfection, collectibility, priority or sufficiency of this Agreement or any other Loan Document or the financial condition of the 41 Loan Agreement Company or any of its Subsidiary or be required to make any inquiry concerning either the performance or observance of any of the terms, provisions or conditions of this Agreement or any other Loan Document, or the financial condition of the Company or any subsidiary or the existence or possible existence of any Event of Default. 8.9 Indemnification. To the extent Agent is not reimbursed and indemnified by the Company or other Grantor, the Holders shall reimburse and indemnify Agent in proportion to their respective “percentage” as used in determining the Majority Holders for and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements of whatsoever kind or nature (including fees and disbursements of any counsel or financial advisor engaged by Agent) which may be imposed on, asserted against or incurred by Agent in performing its duties hereunder or under any other Loan Document or in any way relating to or arising out of this Agreement or any other Loan Document; provided, however, that no Holder shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from such agent’s gross negligence or willful misconduct. If the indemnity furnished to Agent by any Holder for any purpose shall, in the opinion of Agent be insufficient or become impaired, Agent may call for additional indemnity from such Holder (but not any other Holder) and cease, or not commence, to do the acts indemnified against until such additional indemnity is furnished. The agreements in this Section 8.9 shall survive the payment of all Obligations. 8.10 Holders. Agent may deem and treat the payee of any Note as the owner thereof for all purposes hereof unless and until a written notice of the assignment, transfer or endorsement thereof. Any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is the holder of any Note shall be conclusive and binding on any subsequent holder, transferee, assignee or endorsee, as the case may be, of such Note or of any Note or Notes issued in exchange therefor. 8.11 Action by Agent. Agent may take any action on behalf of the Majority Holders that has been approved by the Majority Holders and any action that has otherwise been specified herein or in any of the other Loan Documents. For the avoidance of doubt, but subject to Sections 9.7 and 9.11, Agent may, with the prior consent of the Majority Holders (but not otherwise) consent to any amendment, restatement, supplement, waiver or other modification under any of the Loan Documents. 9. MISCELLANEOUS PROVISIONS. 9.1 Rights Cumulative. Each and all of the various rights, powers and remedies of the parties shall be considered to be cumulative with and in addition to any other rights, powers and remedies which such parties may have at law or in equity in the event of the breach of any of the terms of this Agreement. The exercise or partial exercise of any right, power or remedy shall neither constitute the exclusive election thereof nor the waiver of any other right, power or remedy available to such party. 42 Loan Agreement 9.2 Pronouns. All pronouns or any variation thereof shall be deemed to refer to the masculine, feminine or neuter, singular or plural, as the identity of the person, persons, entity or entities may require. 9.3 Notices. (a) Any notices, reports or other correspondence (hereinafter collectively referred to as “correspondence”) required or permitted to be given hereunder shall be given in writing and shall be deemed given if sent by certified or registered mail (return receipt requested), overnight courier or telecopy (with confirmation of receipt), or delivered by hand to the party to whom such correspondence is required or permitted to be given hereunder. An electronic communication (“Electronic Notice”) shall be deemed written notice for purposes of this Section 9.3 if sent with return receipt requested to the electronic mail address specified by the receiving party either in this Section 9.3 or on Exhibit A hereto. Electronic Notice shall be deemed received at the time the party sending Electronic Notice receives verification of receipt by the receiving party. (b) All correspondence to the Company shall be addressed as follows: DayStar Technologies, Inc. 13 Corporate Drive Halfmoon, NY 12065 Attention: Stephan DeLuca, Chief Executive Officer Fax: Email: with a copy (which shall not constitute notice) to: Goodwin Procter LLP Exchange Place 53 State Street Boston, MA 02109 Attention: Stephen T. Adams Fax: (617) 523-1231 (c) All correspondence to the Purchaser shall be addressed pursuant to the contact information set forth on Exhibit A attached hereto. (d) All correspondence to the Agent shall be addressed as follows: Lampe, Conway & Co., LLC 680 Fifth Avenue, Suite 1202 Attention: Steve Lampe Facsimile: (212) 581-8999 Lampe@lampeconway.com 43 Loan Agreement Milbank, Tweed, Hadley & McCloy, LLP 601 S. Figueroa St. 30th Floor Los Angeles, CA 90017 Attention: Melainie Mansfield Facsimile: (213) 892-4711 (e) Any entity may change the address to which correspondence to it is to be addressed by notification as provided for herein. 9.4 Captions. The captions and paragraph headings of this Agreement are solely for the convenience of reference and shall not affect its interpretation. 9.5 Severability. Should any part or provision of this Agreement be held unenforceable or in conflict with the applicable laws or regulations of any jurisdiction, the invalid or unenforceable part or provisions shall be replaced with a provision which accomplishes, to the extent possible, the original business purpose of such part or provision in a valid and enforceable manner, and the remainder of this Agreement shall remain binding upon the parties hereto. 9.6 CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER. (a) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (UNLESS EXPRESSLY PROVIDED TO THE CONTRARY IN ANOTHER LOAN DOCUMENT IN RESPECT OF SUCH OTHER LOAN DOCUMENT) SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THE STATE OF NEW YORK EXCLUDING CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE. (b) THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE TRIED AND LITIGATED ONLY IN THE STATE AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, FEDERAL COURTS LOCATED IN THE BOROUGH OF MANHATTAN, STATE OF NEW YORK, PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT AGENT’S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE AGENT ELECTS TO BRING SUCH ACTION OR WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. THE COMPANY, THE PURCHASER AND THE AGENT EACH WAIVE, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 9.6(b). 44 Loan Agreement (c) THE COMPANY, THE PURCHASER AND THE AGENT EACH HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF ANY OF THE LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. THE COMPANY, THE PURCHASER AND THE AGENT EACH REPRESENT THAT EACH HAS REVIEWED THIS WAIVER AND EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT. 9.7 Waiver. No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or be construed as, a further or continuing waiver of any such term, provision or condition or as a waiver of any other term, provision or condition of this Agreement. 9.8 Assignment. The rights and obligations of any party hereto shall inure to the benefit of and shall be binding upon the authorized successors and permitted assigns of such party. The Company may not assign this Agreement or any rights or obligations hereunder without the prior written consent of the Majority Holders. The Purchaser and any other Holder may assign or transfer any or all of its rights under this Agreement to any Person provided that such assignee or transferee agrees in writing to be bound, with respect to the transferred Notes, by the provisions hereof that apply to such assigning or transferring Purchaser or Holder; whereupon such assignee or transferee shall be deemed to be a “Purchaser” for all purposes of this Agreement. 9.9 Survival. The respective representations and warranties given by the parties hereto shall survive the Closing Date and the consummation of the transactions contemplated herein for a period of time equal to the time for which indemnification may be sought hereunder, without regard to any investigation made by any party. The respective covenants and agreements agreed to by a party contemplated herein in accordance with their respective terms and conditions. 9.10 Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto respecting the subject matter hereof and supersedes all prior agreements, negotiations, understandings, representations and statements respecting the subject matter hereof, whether written or oral. 9.11 Amendments. Any amendment, supplement or modification of or to any provision of this Agreement, any waiver of any provisions of this Agreement shall be effective only if made or given in writing and signed by the Company and the Majority Holders; provided that any amendment, supplement, modification or waiver that is materially and disproportionately adverse to any particular Holder (as compared to all Holders as a group) shall require the consent of the Holder. 45 Loan Agreement 9.12 No Third Party Rights. This Agreement is intended solely for the benefit of the parties hereto and is not intended to confer any benefits upon, or create any rights in favor of, any Person (including, without limitation, any stockholder or debt holder of the Company) other than the parties hereto; provided, that each of the Purchaser Indemnitees that are not Purchaser are entitled to all rights and benefits as third party beneficiaries of Section 7 of this Agreement. 9.13 Independent Nature of Holders’ Obligations and Rights. The obligations of each Holder under this Agreement are several and not joint with the obligations of any other Holder, and no Holder shall be responsible in any way for the performance of the obligations of any other Holder under this Agreement. Nothing contained herein, and no action taken by any Holder pursuant hereto, shall be deemed to constitute the Holder as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Holders are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated hereby and the Company acknowledges that the Holders are not acting in concert or as a group with respect to such obligations or the transactions contemplated by this Agreement. Each Holder confirms that it has independently participated in the negotiation of the transaction contemplated hereby with the advice of its own counsel and advisors. 9.14 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same document. The parties hereto confirm that any facsimile copy of another party’s executed counterpart of this Agreement (or its signature page thereof) will be deemed to be an executed original thereof. [Signature Pages Follow] 46 Loan Agreement IN WITNESS WHEREOF, the parties hereto have executed this Loan Agreement as of the day and year first above written. DAYSTAR TECHNOLOGIES, INC. By: /s/ Stephan J. DeLuca Name: Stephan J. DeLuca Title: Chief Executive Officer PURCHASER: LC CAPITAL MASTER FUND, LTD. By: /s/ Richard F. Conway Name: Richard F. Conway Title: Managing Member AGENT: By: EXHIBIT A SCHEDULE OF PURCHASERS Investor Aggregate Principal Amount of Notes Purchased LC Capital Master Fund, Ltd. Lampe, Conway & Co. LLC Attention: Steve Lampe Facsimile: (212) Lampe@lampeconway.com $ 4,000,000.00 TOTAL $ 4,000,000.00
Exhibit 10.10 AMENDED AND RESTATED EMPLOYMENT AGREEMENT AGREEMENT (this “Agreement”) made as of November 3, 2004, between USS Vessel Management LLC, a Delaware limited liability company with an office at 399 Thornall Street, Edison, New Jersey 08837 (the “Company”), and Calvin G. Chew, residing at 9539 Enstone Circle, Sprint, Texas 77379 (the “Executive”). W I T N E S S E T H: WHEREAS, Executive is presently the Executive Vice President of the Company, United States Shipping Master LLC, a Delaware limited liability company (“Parent”), and each subsidiary of Parent (collectively with the Company, Parent and any entity that hereafter becomes a subsidiary of Parent or U.S. Shipping Partners L.P., a Delaware limited partnership (the “Partnership”), the “US Shipping Group”); WHEREAS, on the date of the closing of the initial public offering of the Partnership pursuant to its Registration Statement on Form S-1 (No. 333-118141) (such date the “Effective Date”) Parent will contribute the operating subsidiaries constituting the US Shipping Group (other than the Company, USS Transport LLC, USS Chemical Transport LLC and US Shipping General Partner LLC, the sole member of the Company (the “General Partner”)) to the Partnership; WHEREAS, the Company and Executive are parties to an employment agreement dated as of September 13, 2002 (the “Prior Agreement”); WHEREAS, the Company and Executive desire to amend and restate the terms of the Prior Agreement; and WHEREAS, this Agreement shall supercede and completely replace the Prior Agreement as of the Effective Date. NOW, THEREFORE, in consideration of the premises and of the mutual promises, representations and covenants herein contained, the parties hereto agree as follows: 1. EMPLOYMENT. The Company hereby employs Executive and Executive hereby accepts such employment, subject to the terms and conditions herein set forth. Executive shall hold the office of Executive Vice President of the Company reporting to the President of the Company. 2. TERM. The initial term of employment under this Agreement shall begin on the Effective Date and shall continue until October 31 2007, subject to prior termination in accordance with the terms hereof (the “Initial Term”). The Initial Term shall be automatically extended for successive additional periods of one (1) year commencing on the third anniversary of the Effective Date and each anniversary thereof (each such period, an “Additional Term”) unless either party shall have given written notice to the other party of non-extension at least sixty (60) days’ prior to the end of the then applicable Initial Term or Additional Term (the Initial Term and any Additional Term collectively, the “Employment Term”). Notice of non-extension by the Company shall be deemed a termination without justifiable cause (as defined herein) at the end of the then current Employment Term and notice of non-extension by Executive shall be deemed a termination without good reason (as defined herein) at the end of the then current Employment Term. 3. COMPENSATION. As compensation for the employment services to be rendered by Executive hereunder, including all services as an officer or director of any member of the US Shipping Group, the Company agrees to pay, or cause to be paid, to Executive, and Executive agrees to accept, payable in equal installments in accordance with Company practice, an initial annual salary of $204,000. Executive’s annual salary hereunder for the remaining years of employment shall be determined by the Board of Directors of the General Partner (the “GP Board”) in its sole discretion; provided, however, that in no event shall Executive’s salary in any year be reduced below the rate for the previous year. In addition, Executive shall be eligible for bonuses from time to time in such amounts as may be determined by the GP Board in its sole discretion. 4. EXPENSES. The Company shall pay or reimburse Executive, upon presentment of suitable vouchers, for all reasonable business and travel expenses which may be incurred or paid by Executive in connection with his employment hereunder in accordance with Company policy as established from time to time by the Board of Directors. Executive shall comply with such restrictions and shall keep such records as the Company may reasonably deem necessary to meet the requirements of the Internal Revenue Code of 1986, as amended from time to time (the “Code”), and regulations promulgated thereunder. 5. OTHER BENEFITS. Executive shall be entitled to five weeks paid vacation per year and to participate in such benefit plans and arrangements and receive any other benefits customarily provided by the Company to its senior management personnel (including any profit sharing, pension, short- and long-term disability insurance, hospital, major medical insurance and group life insurance plans in accordance with the terms of such plans) and including stock option and/or stock purchase plans, all as determined from time to time by the GP Board, on a level commensurate with Executive’s seniority (the “Benefit Plans”). The Company shall indemnify Executive to the fullest extent permitted by Delaware law, including the advancement of legal expenses and costs. 6. DUTIES. (a) Executive shall perform such reasonable duties and functions as the President of the Company may lawfully assign to him, such duties being commensurate with the duties customarily performed by an executive responsible for customer quality, safety and environmental response, and Executive shall comply in the performance of his duties with the policies of the Chief Executive Officer, the Board of Directors of the Company (the “Company Board”) and the GP Board, and be subject to the direction of the Chief Executive Officer, President, the Company Board and the GP Board. Executive shall serve, without additional compensation, as Executive Vice President of the General Partner, Parent, the Partnership and each subsidiary of the Partnership and the General Partner. At the request of the GP Board, Executive shall serve as an executive officer, director and manager of any other member of the US Shipping Group without additional compensation and, in the performance of such duties, Executive shall comply with the policies of the board of directors or board of managers of each such entity. (b) During the Employment Term, Executive shall devote a majority of his time and attention, reasonable vacation time and absences for sickness excepted, to the business of the Company, 2 as necessary to fulfill his duties. Executive shall perform the duties assigned to him with fidelity and to the best of his ability. Notwithstanding anything herein to the contrary, Executive may engage in other activities so long as such activities do not unreasonably interfere with Executive’s performance of his duties hereunder and do not violate Section 9 hereof. The Company recognizes that Executive will be devoting a significant minority of his time to the activities set forth on Schedule A attached hereto and will be compensated independently for same. (c) Nothing contained in this Section 6 or elsewhere in this Agreement shall be construed to prevent Executive from investing or trading in non-competing investments as he sees fit for his own account, including real estate, stocks, bonds, securities, commodities or other forms of investments. Specifically, the Company acknowledges that (i) the Executive has disclosed ownership interests in and management responsibilities for the entities and assets listed on Schedule A attached hereto and (ii) neither such ownership interests nor management responsibilities as they exist as of the date hereof shall, subject to the first two sentences of Section 6(b), violate this Section 6 or the other provisions of this Agreement. 7. TERMINATION OF EMPLOYMENT; EFFECT OF TERMINATION. (a) Executive’s employment hereunder shall terminate upon the first to occur of the following: (i) upon thirty (30) days’ prior written notice to Executive upon the determination by the GP Board that Executive’s performance of his duties has not been fully satisfactory for any reason which would not constitute “justifiable cause” (as hereinafter defined); (ii) upon three (3) days’ prior written notice to Executive upon the determination by the GP Board that there is justifiable cause for such termination; (iii) automatically and without notice upon the death of Executive; (iv) in accordance with the terms of subsection (d) hereof upon the “disability” (as hereinafter defined) of Executive; (v) upon written notice by the Executive to the Company of a termination for good reason (as hereinafter defined) within ninety (90) days after the event that constitutes good reason; or (vi) upon 30 days’ prior written notice by Executive to the Company of the Executive’s voluntary termination of employment without good reason. (b) For the purposes of this Agreement, the term: (i) “disability” shall mean the inability of Executive, due to illness, accident or any other physical or mental incapacity, substantially to perform the material functions of his duties for a period of six (6) consecutive months or for a total of eight (8) months (whether or not consecutive) in any twelve (12) month period during the term of this Agreement, as reasonably determined by the GP Board, in good faith, after examination of Executive by an independent physician reasonably acceptable to Executive. (ii) “change of control” shall mean (A) the occurrence of any transaction the result of which is that any person (other than Parent, any entity controlled by Sterling Investment Partners 3 L.P. or its affiliates, or any entity in which Executive is an executive officer and/or equity holder that is formed for the purpose of effecting the transaction that would constitute a change of control and that, prior to effecting such transaction, does not have any equity securities that are publicly traded) acquires more than 50% of the outstanding equity of, or otherwise obtains the right to appoint a majority of, the directors (or equivalent) of (x) the General Partner or (y) Parent or (B) the sale of all or substantially all the assets of the General Partner or Parent to any person other than an affiliate of Parent, any entity controlled by Sterling Investment Partners L.P. or its affiliates or any entity in which Executive is an executive officer and/or equity holder that is formed for the purpose of effecting the transaction that would constitute a change of control and that, prior to effecting such transaction, does not have any equity securities that are publicly traded); (iii) “good reason” shall mean (i) any material diminution of Executive’s duties, (ii) any change in Executive’s reporting relationship that removes the Executive from reporting directly to the President of the Company, (iii) any change in Executive’s or another person’s duties that provides such other person with substantially all the duties then being performed by Executive, or (iv) requiring Executive to be physically present during a substantial portion of the working hours he is required to devote to the Company at a location that is not within a 50 mile radius of Metro Park, New Jersey, in each case that has not been remedied within thirty days after written notice from Executive to the GP Board; and (iv) “justifiable cause” shall mean: (i) Executive’s repeated failure or refusal to attempt to perform his duties pursuant to, or Executive’s breach of, this Agreement where such conduct or breach shall not have ceased or been remedied within 15 days following written warning from the Company; (ii) Executive’s performance of any act or his failure to act, for which if Executive were prosecuted and convicted, a crime or offense involving money or property of the US Shipping Group, or which would constitute a felony in the jurisdiction involved, would have occurred; (iii) Executive’s performance of any act or his failure to act which constitutes, in the reasonable good faith determination of the GP Board, dishonesty, fraud or a breach of a fiduciary trust, including without limitation misappropriation of funds; (iv) any intentional unauthorized disclosure by Executive to any person, firm or corporation other than the members of the US Shipping Group and their respective directors, managers, officers and employees, of any confidential information or trade secret of the US Shipping Group; (v) any attempt by Executive to secure any personal profit (other than through his ownership of units of Parent or the Partnership and his profits interest in the General Partner) in connection with the business of the US Shipping Group (for example, without limitation, using US Shipping Group assets to pursue other interests, diverting any business opportunity belonging to US Shipping Group to himself or to a third party, insider trading or taking bribes or kickbacks); (vi) Executive’s engagement in a fraudulent act to the material damage of the US Shipping Group; (vii) Executive’s engagement in conduct or activities materially damaging to the property, business or reputation of the US Shipping Group, as determined in reasonable good faith by the Board of Directors; (viii) Executive’s illegal use of controlled substances; (ix) any act or omission by Executive involving malfeasance or gross negligence in the performance of Executive’s duties to the material detriment of the US Shipping Group, as determined in reasonable good faith by the GP Board; or (x) the entry of any order of a court that remains in effect and is not discharged for a period of at least sixty (60) days, which enjoins or otherwise limits or restricts the performance by Executive under this Agreement, relating to any contract, agreement or commitment made by or applicable to Executive in favor of any former employer or any other person. Upon termination of Executive’s employment for justifiable cause, Executive shall not be entitled to any amounts or benefits hereunder other than such portion of Executive’s annual 4 salary and reimbursement of expenses pursuant to Section 4 hereof as has been accrued through the date of his termination of employment. (c) If Executive should die during the term of his employment hereunder, this Agreement shall terminate immediately. In such event, the estate of Executive shall thereupon be entitled to receive such portion of Executive’s annual salary and reimbursement of expenses pursuant to Section 4 as has been accrued through the date of his death. Executive shall also be entitled to any amounts or benefits payable under the terms of the Benefit Plans. (d) Upon a finding by the GP Board of Executive’s disability in accordance with Section 7(b) hereof, the Company shall have the right to terminate Executive’s employment. Notwithstanding any inability to perform his duties, Executive shall be entitled to receive his compensation (including bonus, if any) pursuant to Section 3 and reimbursement of expenses pursuant to Section 4 as provided herein until he begins to receive long-term disability insurance benefits under the policy provided by the Company pursuant to Section 5 hereof. In the event that payments received from such long-term disability insurance policy do not equal the Executive’s rate of salary at the time of the disability, then for a period of 12 months following termination the Company shall continue to pay to Executive the difference between the policy benefit and such rate of salary, subject to any applicable tax withholding. Any termination pursuant to this subsection (e) shall be effective on the later of (i) the date 30 days after which Executive shall have received written notice of the Company’s election to terminate or (ii) the date Executive begins to receive long-term disability insurance benefits under the policy provided by the Company pursuant to Section 5 hereof. Executive shall also be entitled to receive any amounts or benefits payable under the terms of the Benefit Plans. (e) Notwithstanding any provision to the contrary contained herein, in the event that Executive’s employment is terminated by the Company without justifiable cause or by the Executive for good reason, the Company shall (i) pay Executive, for a period of two years following the date of termination (such period being hereinafter referred to as the “Severance Period”), a monthly payment (subject to applicable tax withholding) equal to one-twelfth of his then annual salary and one-twelfth of his target bonus for the year in which termination of employment occurs, as established by the compensation committee of the GP Board (provided that if the compensation committee has not established a target bonus for such year, then for purposes of this Section 7(e) such target bonus shall be 50% of Executive’s then current salary), which amount shall be in lieu of any and all other payments due and owing to Executive under the terms of this Agreement (other than any payments constituting reimbursement of expenses pursuant to Section 4 hereof and any payments or benefits payable under the Benefit Plans), and (ii) continue to allow Executive to participate, at the Company’s expense (to the same extent the Company bears such expense at the time of termination), in the Company’s health insurance program, to the extent permitted under such programs, until the earlier of (1) the end of the Severance Period or (2) the date Executive begins employment with another entity which provides substantially similar benefits to the Executive (collectively, the “Severance Payments”); provided, however, that the Company’s obligation to make the Severance Payments shall be conditional upon Executive executing a general release in favor of the Company and Executive’s compliance with his obligations under Sections 9, 10, 11 and 12 hereof; and provided further, that in the event that Executive’s employment is terminated by the Company without justifiable cause (including by reason of non-renewal of this Agreement) or by the Executive for good reason within two years following the effective date of a change of control, then the Company shall pay to Executive, in lieu of the amounts to be paid pursuant to clause (i) of the first sentence of this Section 7(e), an amount equal to the product determined by multiplying (x) the sum of his then annual salary and his target bonus for the year in which termination of employment occurs, as established by the compensation committee of the GP Board (provided that if the compensation committee has not established a target bonus for such year, then for purposes of this Section 7(e) such target bonus shall be 50% of Executive’s then current salary), by (y) three, such payment to be made 5 within ten business days following such termination of employment. If Executive’s employment is terminated by the Company without justifiable cause (including by reason of non-renewal of this Agreement) or by the Executive for good reason at a time when the Partnership, the General Partner or Parent is in negotiations regarding a transaction that would, if consummated, constitute a change of control and such transaction is consummated within one year following Executive’s termination of employment, then Executive’s severance shall be calculated and paid as if such termination had occurred within two years following a change of control, and the Company shall, upon consummation of such transaction, pay to Executive an amount equal to the difference between the amount he would be entitled to pursuant to this sentence and the amount of severance payments Executive has received through such date. (f) Upon Executive’s termination of his employment hereunder or his election not to renew this Agreement, this Agreement (other than Sections 5, 9, 10, 11, 12 and 15 which shall survive in accordance with their terms) shall terminate. In such event, Executive shall be entitled to receive such portion of Executive’s annual salary and bonus, if any, as has been accrued to date. Executive shall be entitled to reimbursement of expenses pursuant to Section 4 hereof and to continue to participate in the Benefit Plans to the extent participation by former employees is required by law or permitted by such plans, with the expense of such participation to be as specified in such plans for former employees. Executive shall also be entitled to any amounts or benefits payable under the terms of the Benefit Plans. 8. REPRESENTATIONS AND AGREEMENTS OF EXECUTIVE. (a) Executive represents and warrants that he is free to enter into this Agreement and to perform the duties required hereunder, and that there are no employment contracts or understandings, restrictive covenants or other restrictions, whether written or oral, preventing the performance of his duties hereunder. (b) Executive agrees to submit to a medical examination and to cooperate and supply such other information and documents as may be reasonably required by any insurance company in connection with the Company’s obtaining life insurance on the life of Executive, and any other type of insurance or fringe benefit as the Company shall determine from time to time to obtain. 9. NON-COMPETITION. (a) In view of the unique and valuable services expected to be rendered by Executive to the US Shipping Group, Executive’s knowledge of the trade secrets and other proprietary information relating to the business and in consideration of the compensation to be received hereunder and Executive’s direct ownership interest in the Parent and indirect ownership in the Partnership, Executive agrees that during his employment by the Company and, following the termination of Executive’s employment hereunder, during the Non-Competition Period (as defined below), Executive shall not, directly or indirectly, as owner, partner, joint venturer, stockholder, employee, broker, agent, principal, trustee, corporate officer, director, licensor, or in any capacity whatsoever engage in, become financially interested in, be employed by, render any consultation or business advice with respect to, or have any connection with, (i) any business which is competitive with products or services of the US Shipping Group in the United States of America or (ii) any business conducted under any corporate or trade name utilized by the US Shipping Group or any name similar thereto without the prior written consent of the Company; provided, however, that Executive may own any securities of any corporation which is engaged in such business and is publicly owned and traded but in an amount not to exceed at any one time one percent (1%) of any class of stock or securities of such corporation. The Company hereby agrees that the following activities shall not be deemed to be a business competitive with the business of the US Shipping Group: 6 (i) employment, following termination of employment hereunder, by any entity that is not engaged in the ownership and operation of vessels engaged in the coastwise trade under the Jones Act; (ii) employment, following termination of employment hereunder, by an entity that has divisions or affiliates engaged in the ownership and operation of vessels engaged in the coastwise trade under the Jones Act as long as Executive is employed in a division or affiliate of such entity that does not, directly or indirectly, engage in the ownership and operation of vessels engaged in the coastwise trade under the Jones Act and Executive does not share information, directly or indirectly, with those divisions and/or affiliates of such entity engaged in the ownership and operation of vessels engaged in the coastwise trade under the Jones Act; or (iii) transportation of chemical products on the tank barges listed on Schedule A hereto and, subject to the provisions of Section 9(b) below, any other tank barges of less than 15,000 tons deadweight, other than the transportation of petroleum or petroleum products, as long as either (i) Mr. Chew continues to engage in such business on a continuous basis after the date hereof or (ii) if Mr. Chew does not continue to engage in such business on a continuous basis after the date hereof, at the time Mr. Chew determines to reenter such business, the US Shipping Group is not then engaged in such business. In addition, Executive shall not, directly or indirectly, during the Non-Competition Period, request or cause any suppliers or customers with whom the US Shipping Group has a business relationship to cancel or terminate any such business relationship with any member of the US Shipping Group or solicit, interfere with or entice from the Parent or any of its subsidiaries any employee (or former employee) of the Parent or any of its subsidiaries. For purposes hereof, the “Non-Competition Period” shall mean: (i) if Executive’s employment is terminated by the Company for justifiable cause (as defined in Section 7(b)) or disability (as defined in Section 7(b)), or if Executive voluntarily terminates his employment hereunder (including by electing not to renew this Agreement), a period of two (2) years following such termination of employment; and (ii) if Executive’s employment is terminated by the Company for other than justifiable cause or disability, by the Executive for good reason, or as a result of the Company’s election not to renew the employment agreement, the Severance Period, provided, however, that in the case of this clause (ii) if the Company breaches its obligation to make the Severance Payments or to comply with its obligations under Section 4 hereof, and such breach is not cured within thirty (30) days after written notice of such breach is provided to the Company by Executive, Executive shall be released from his obligations under this Section 9. (b) Notwithstanding Section 9(a) hereof, Executive agrees that during his employment by the Company he will not, directly or indirectly, acquire an interest in any tank barge (other than those listed on Schedule A hereto) of less than 15,000 deadweight tons if at any time more than 50% of the income expected to be generated from the operation of such tank barge in a six-month period is expected to be “qualifying income” (within the meaning of Section 7704(d) of the Code, or any successor provision thereto) without first offering to the Partnership the opportunity to acquire such interest on the same terms and conditions offered to him and the conflicts committee of the GP Board determining that the Partnership is not interested in acquiring such interest; provided that if at the time of acquisition less than 50% of the income expected to be generated from the operation of such tank barge in a six-month period is expected to be “qualifying income” and therefore was not offered to the Partnership, but subsequently 50% or more of the income expected to be generated from the operation of such tank barge in a six-month period is expected to be “qualifying income,” then at such time Executive shall offer to the conflicts committee of the GP Board the right to have the Partnership acquire such tank barge (or Executive’s interest therein) at fair market value. 7 (c) If any portion of the restrictions set forth in this Section 9 should, for any reason whatsoever, be declared invalid by a court of competent jurisdiction, the validity or enforceability of the remainder of such restrictions shall not thereby be adversely affected. (d) Executive acknowledges that the Parent has invested substantial monies in connection with the acquisition of the Business (as defined in the Asset Purchase Agreement, dated as of July 18, 2002, among Amerada Hess Corporation, United States Shipping LLC (f/k/a US Shipping Acquisition LLC), a subsidiary of Parent, the Company and the other signatories thereto (the “Purchase Agreement”)) from Hess and that the provisions of this Section 9 were a material inducement to the US Shipping Group to consummate the transactions contemplated by the Purchase Agreement (the “Acquisition”), and that the US Shipping Group would not have consummated the Acquisition but for the agreements and covenants contained herein. Executive further acknowledges that the territorial and time limitations set forth in this Section 9 are reasonable and properly required for the adequate protection of the business of the US Shipping Group. Executive hereby waives, to the extent permitted by law, any and all right to contest the validity of this Section 9 on the ground of breadth of its geographic or product and service coverage or length of term. In the event any such territorial or time limitation is deemed to be unreasonable by a court of competent jurisdiction, Executive agrees to the reduction of the territorial or time limitation to the area or period which such court shall deem reasonable. (e) The existence of any claim or cause of action by Executive against the Company or any other member of the US Shipping Group shall not constitute a defense to the enforcement by the US Shipping Group of the foregoing restrictive covenants, but such claim or cause of action shall be litigated separately. 10. INVENTIONS AND DISCOVERIES. (a) Executive shall promptly and fully disclose to the Company, with all necessary detail for a complete understanding of the same, all developments, know-how, discoveries, inventions, improvements, concepts, ideas, writings, formulae, processes and methods (whether copyrightable, patentable or otherwise) made, received, conceived, developed, acquired or written during working hours, or otherwise, by Executive (whether or not at the request or upon the suggestion of the Company) during the period of his employment with the Company, solely or jointly with others, using the US Shipping Group’s resources, or relating to any current or proposed business or activities of the US Shipping Group known to him as a consequence of his employment or the rendering of advisory and consulting services hereunder (collectively, the “Subject Matter”). (b) Executive hereby assigns and transfers, and agrees to assign and transfer, to the Company all his rights, title and interest in and to the Subject Matter, and Executive further agrees to deliver to the Company any and all drawings, notes, specifications and data relating to the Subject Matter, and to execute, acknowledge and deliver all such further papers, including applications for trademarks, copyrights or patents, as may be necessary to obtain trademarks, copyrights and patents for any thereof in any and all countries and to vest title thereto in the Company. Executive shall assist the Company in obtaining such trademarks, copyrights or patents during the term of this Agreement, and any time thereafter on reasonable notice and at mutually convenient times, and Executive agrees to testify in any prosecution or litigation involving any of the Subject Matter; provided, however, that following termination of employment Executive shall be reasonably compensated for his time and reimbursed his reasonable out-of-pocket expenses incurred in rendering such assistance or giving or preparing to give such testimony if it is required after the Non-Competition Period. 8 11. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION. (a) Executive shall not, during the term of this Agreement, or at any time following expiration or termination of this Agreement, directly or indirectly, disclose or permit to be known (other than as is required in the regular course of his duties (including without limitation disclosures to the Company’s advisors and consultants) or as is required by law (in which case Executive shall give the Company prior written notice of such required disclosure) or with the prior written consent of the Company’s Chief Executive Officer), to any person, firm or corporation, any confidential information acquired by him during the course of, or as an incident to, his employment hereunder, relating to the US Shipping Group, any client of the US Shipping Group, or any corporation, partnership or other entity owned or controlled, directly or indirectly, by any of the foregoing, or in which any of the foregoing has a beneficial interest, including, but not limited to, the business affairs of each of the foregoing. Such confidential information shall include, but shall not be limited to, proprietary technology, trade secrets, patented processes, research and development data, know-how, market studies and forecasts, competitive analyses, pricing policies, employee lists, personnel policies, the substance of agreements with customers, suppliers and others, marketing or dealership arrangements, servicing and training programs and arrangements, customer lists and any other documents embodying such confidential information. This confidentiality obligation shall not apply to any confidential information which is known to Executive as a result of his professional business experience prior to the date hereof or his involvement in the business activities set forth on Schedule A hereof or which becomes publicly available from sources unrelated to the US Shipping Group. (b) All information and documents relating to the US Shipping Group as hereinabove described (or other business affairs) shall be the exclusive property of the Company, and Executive shall use commercially reasonable best efforts to prevent any publication or disclosure thereof. Upon termination of Executive’s employment with the Company, all documents, records, reports, writings and other similar documents containing confidential information, including copies thereof, then in Executive’s possession or control shall be returned and left with the Company. 12. SPECIFIC PERFORMANCE. Executive agrees that if he breaches, or threatens to commit a breach of, any of the provisions of Sections 9, 10 or 11 (the “Restrictive Covenants”), the Company shall have, in addition to, and not in lieu of, any other rights and remedies available to the Company under law and in equity, the right to injunctive relief and/or to have the Restrictive Covenants specifically enforced by a court of competent jurisdiction, without the posting of any bond or other security, it being agreed that any breach or threatened breach of the Restrictive Covenants would cause irreparable injury to the US Shipping Group and that money damages would not provide an adequate remedy to the Company. Notwithstanding the foregoing, nothing herein shall constitute a waiver by Executive of his right to contest whether a breach or threatened breach of any Restrictive Covenant has occurred. 13. AMENDMENT OR ALTERATION. No amendment or alteration of the terms of this Agreement shall be valid unless made in writing and signed by both of the parties hereto. 14. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey, including choice of law rules, applicable to agreements made and to be performed therein. 9 15. ALTERNATIVE DISPUTE RESOLUTION. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration in New York City by one (1) arbitrator in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Each party shall bear its own costs (including legal fees and expenses) in the arbitration unless the arbitrator determines otherwise. Nothing in this paragraph shall preclude any party from seeking a preliminary injunction or other provisional relief, either prior to, during or after invoking the procedures in this paragraph, if in its judgment such action is necessary to avoid irreparable damage or to preserve the status quo. 16. SEVERABILITY. The holding of any provision of this Agreement to be invalid or unenforceable by a court of competent jurisdiction shall not affect any other provision of this Agreement, which shall remain in full force and effect. 17. WITHHOLDING. The Company may deduct and withhold from the payments to be made to Executive hereunder any amounts required to be deducted and withheld by the Company under the provisions of any applicable statute, law, regulation or ordinance now or hereafter enacted. 18. NOTICES. Any notices required or permitted to be given hereunder shall be sufficient if in writing, and if delivered by hand or courier, or sent by certified mail, return receipt requested, to the addresses set forth above or such other address as either party may from time to time designate in writing to the other, and shall be deemed given as of the date of the delivery or at the expiration of three days in the event of a mailing. 19. COUNTERPARTS AND FACSIMILE SIGNATURES. This Agreement may be signed in counterparts with the same effect as if the signatures to each counterpart were upon a single instrument, and all such counterparts together shall be deemed an original of this Agreement. For purposes of this Agreement, a facsimile copy of a party’s signature shall be sufficient to bind such party. 20. WAIVER OR BREACH. It is agreed that a waiver by either party of a breach of any provision of this Agreement shall not operate, or be construed, as a waiver of any subsequent breach by that same party. 21. ENTIRE AGREEMENT AND BINDING EFFECT. This Agreement contains the entire agreement of the parties with respect to the subject matter hereof, supersedes all prior and contemporaneous agreements, both written and oral, between the parties with respect to the subject matter hereof, and may be modified only by a written instrument signed by each of the parties hereto. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective legal representatives, heirs, distributors, successors and assigns, provided, however, that Executive shall not be entitled to assign or delegate any of his rights or obligations 10 hereunder without the prior written consent of the Company. It is intended that Sections 9, 10, 11 and 12 benefit each of the Company and each other member of the US Shipping Group, each of which is entitled to enforce the provisions of Sections 9, 10, 11 and 12. 22. SURVIVAL. Except as otherwise expressly provided herein, the termination of Executive’s employment hereunder or the expiration of this Agreement shall not affect the enforceability of Sections 9, 10, 11 and 12 hereof. 23. FURTHER ASSURANCES. The parties agree to execute and deliver all such further documents, agreements and instruments and take such other and further action as may be necessary or appropriate to carry out the purposes and intent of this Agreement. 24. CONSTRUCTION OF AGREEMENT. No provision of this Agreement or any related document shall be construed against or interpreted to the disadvantage of any party hereto by any court or other governmental or judicial authority by reason of such party having or being deemed to have structured or drafted such provision. 25. HEADINGS. The Section headings appearing in this Agreement are for the purposes of easy reference and shall not be considered a part of this Agreement or in any way modify, demand or affect its provisions. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written. USS VESSEL MANAGEMENT LLC By: /s/ Paul B. Gridley Name: Paul B. Gridley Title: Chairman and Chief Executive Officer /s/ Calvin G. Chew Calvin G. Chew 11 SCHEDULE A Mr. Chew has ownership interests in and management responsibilities for the following corporations: 1. Maritrac, LLC – A company developing marine security and vessel tracking systems. 2. USS Holding, LLC (f/k/a United States Shipping LLC) – Holds interests in the chemical barge Sea Crest. 12
Exhibit 10.1 EXECUTION VERSION STOCK PURCHASE AGREEMENT by and among IDEANOMICS, INC., TIMIOS HOLDINGS CORP., ALL OF THE STOCKHOLDERS OF TIMIOS HOLDINGS CORP., and RAYMOND DAVISON, as the Stockholders’ Representative Dated: November 10, 2020 TABLE OF CONTENTS ARTICLE I Definitions and Rules of Construction 1 1.1. Definitions. 1 1.2. Rules of Construction. 14 ARTICLE II Purchase and Sale 14 2.1. Closing. 14 2.2. Purchase and Sale. 15 2.3. Closing Consideration. 15 2.4. Post-Closing Consideration Adjustment. 16 2.5. Withholding. 17 ARTICLE III 17 3.1. Organization and Power. 18 3.2. Authorization and Enforceability. 18 3.3. Purchased Shares. 18 3.4. No Violation. 18 3.5. Governmental Authorizations and Consents. 19 3.6. No Liens. 19 3.7. Disclosure. 19 ARTICLE IV Representations and Warranties of the Company 19 4.1. Organization and Power. 20 4.2. Authorization and Enforceability. 20 4.3. Capitalization. 21 4.4. No Violation. 22 4.5. Governmental Authorizations and Consents. 22 4.6. Financial Statements. 22 4.7. Absence of Certain Changes. 23 4.8. Relationships with Affiliates. 25 4.9. Indebtedness to and from Officers and Directors of the Group Companies. 25 4.10. Assets. 25 4.11. Real Property. 26 4.12. Intellectual Property. 26 4.13. Contracts. 29 4.14. Compliance with Laws. 31 4.15. Environmental Matters. 31 4.16. Litigation. 31 4.17. Personnel Matters. 31 4.18. Labor Matters. 32 4.19. Employee Benefits. 33 4.20. Tax Matters. 36 4.21. Insurance. 38 4.22. Customers and Suppliers. 38 4.23. Accounts Receivable. 38 4.24. Books and Records. 39 4.25. No Brokers. 39 4.26. Disclosure. 39 ARTICLE V Representations and Warranties of Buyer 39 5.1. Organization and Power. 39 5.2. Authorization and Enforceability. 40 5.3. No Violation. 40 5.4. Governmental Authorizations and Consents. 40 5.5. No Brokers. 40 5.6. Investment Intent. 41 5.7. No Reliance. 41 ARTICLE VI Covenants 41 6.1. Conduct of the Company. 41 6.2. Access to Information. 44 6.3. Consents and Approvals. 44 6.4. Tax Matters. 45 6.5. Confidentiality. 46 6.6. Indebtedness; Transaction Expenses. 47 6.7. Exclusivity. 47 6.8. Public Announcements. 48 6.9. Notice of Developments. 48 6.10. Termination of Affiliated Loans. 48 6.11. Releases. 48 6.12. Non-Competition and Non-Solicitation. 50 6.13. Financing. 51 6.14. Disclosure Schedules. 51 6.15. D&O Insurance. 51 ARTICLE VII Conditions to Closing 52 7.1. Conditions to the Obligations of the Stockholders and the Company. 52 7.2. Conditions to the Obligations of Buyer. 52 ARTICLE VIII Deliveries at Closing 54 8.1. Deliveries by the Company and the Stockholders at Closing. 54 8.2. Deliveries by Buyer at Closing. 55 ARTICLE IX Indemnification; Survival 56 9.1. Expiration of Representations and Warranties. 56 9.2. Indemnification. 56 9.3. Recourse; Escrow Release; Set-Off. 61 9.4. Exclusive Remedy. 62 ARTICLE X Termination 62 10.1. Termination Events. 62 10.2. Procedure and Effect of Termination. 63 ARTICLE XI Miscellaneous 63 11.1. Stockholders’ Representative. 63 11.2. Expenses. 65 11.3. Notices. 65 11.4. Governing Law. 66 11.5. Entire Agreement. 66 11.6. Severability. 66 11.7. Amendment. 67 11.8. Effect of Waiver or Consent. 67 11.9. Parties in Interest; Limitation on Rights of Others. 67 11.10. Assignability. 67 11.11. Jurisdiction; Court Proceedings; Waiver of Jury Trial. 68 11.12. No Other Duties. 68 11.13. Reliance on Counsel and Other Advisors. 68 11.14. Remedies. 68 11.15. Specific Performance. 68 11.16. Counterparts. 69 11.17. Further Assurances. 69 ii STOCK PURCHASE AGREEMENT STOCK PURCHASE AGREEMENT, dated as of November 10, 2020, by and among Ideanomics, Inc., a Nevada corporation (“Buyer”), Timios Holding Corp., a Delaware corporation (the “Company”), Mark Angelo Family, LP, a Delaware limited partnership (“MAF”), Matthew Beckman Family, LP, a Delaware limited partnership (“MBF”), Gerald Eicke Family, LP, a Delaware limited partnership (“GEF”), David Gonzalez Family, LP, a Delaware limited partnership (“DGF”), Michael Rosselli (“Rosselli”), Maureen Angelo (“Angelo”), 2019 Stoffer Family Trust (“Stoffer”), Raymond Davison (“Davison”), Leonard Splane (“L. Splane”), Yutuka Sarumaru (“Sarumaru”), Ross English (“English”), Timothy Splane (“T. Splane”), Joseph Montag (“Montag”), Matthew Hall (“Hall”), Jordan Tomenga (“Tomenga”), Richard and Deannah Thomas Revocable Trust (“RDTRT”), Dominic Janero (“Janero”), SKS Consulting of South Florida Corp., a Florida corporation (“SKS”), Apollo Group Holdings, LLC, a Delaware limited liability company (“Apollo,” and together with MAF, MBF, GEF, DGF, Rosselli, Angelo, Stoffer, Davison, L. Splane, Sarumaru, English, T. Splane, Montag, Hall, Tomenga, RDTRT, Janero, and SKS, each a “Stockholder” and, collectively, the “Stockholders”), and Ray Davison, in his capacity as Stockholders’ Representative hereunder. RECITALS WHEREAS, Buyer desires to purchase from each Stockholder, and each Stockholder desires to sell to Buyer, all of the Stockholder’s right, title and interest in and to the shares of common stock of the Company, par value $0.00001 per share (the “Common Stock”), and preferred stock of the Company, par value $0.00001 per share (the “Preferred Stock”), held by the such Stockholder as specified herein, upon the terms and subject to the conditions hereinafter set forth. NOW THEREFORE, in consideration of the premises and the representations, warranties, covenants and agreements contained in this Agreement, and intending to be legally bound hereby, the parties hereto agree as follows: ARTICLE I Definitions and Rules of Construction 1.1. Definitions. As used in this Agreement, the following terms shall have the meanings set forth below: “ACA” has the meaning set forth in Section 4.19(e). “Affiliate” means, as to any Person, any other Person that, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person. For purposes of this definition, “control” of a Person means the power, directly or indirectly, either to (a) vote 10% or more of the securities having ordinary voting power for the election of directors (or equivalent) of such Person or (b) direct or cause the direction of the management and policies of such Person, whether by contract or otherwise. The Group Companies shall be deemed for purposes of this Agreement an Affiliate of the Stockholders prior to the Closing and of Buyer from and after the Closing. “Affiliated Loans” means loans made by a Group Company to a Stockholder that are set forth (or required to be set forth) on Section 4.9 of the Company Disclosure Schedule, together with any loans made by the Company to a Stockholder between the date hereof and Closing that, if in place on the date hereof, would have been required to have been included on Section 3.9 of the Company Disclosure Schedule. “Agreement” means this Stock Purchase Agreement, as it may be amended from time to time in accordance with the terms hereof. “Ancillary Documents” means the documents being executed and delivered in connection with this Agreement and the Contemplated Transactions. “Angelo” has the meaning set forth in the Preamble. “Apollo” has the meaning set forth in the Preamble. “Auditor” has the meaning set forth in Section 2.4(b). “Base Consideration” has the meaning set forth in Section 2.3(a). “Business Day” means any day other than a Saturday, Sunday or day on which banks are closed in New York, New York. If any period expires on a day which is not a Business Day or any event or condition is required by the terms of this Agreement to occur or be fulfilled on a day which is not a Business Day, such period shall expire or such event or condition shall occur or be fulfilled, as the case may be, on the next succeeding Business Day. “Buyer” has the meaning set forth in the Preamble. “Buyer Disclosure Schedule” means the disclosure schedule of even date herewith delivered by Buyer to the Company in connection with the execution and delivery of this Agreement. “Buyer Indemnitees” has the meaning set forth in Section 9.2(a). “Buyer Liability Cap” has the meaning set forth in Section 9.2(c)(ii). “Buyer Releasee” has the meaning set forth in Section 6.11(a). “Buyer Releasor” has the meaning set forth in Section 6.11(a). “Capital Stock” means, collectively, the Common Stock and the Preferred Stock. “Cash” means cash (including, without limitation, restricted cash), cash equivalents, and marketable securities. “Claims” has the meaning set forth in Section 6.11(a). - 2 - “Closing” has the meaning set forth in Section 2.1. “Closing Cash” means all Cash held by the Group Companies as of immediately prior to the Closing, determined on a consolidated basis in accordance with GAAP; provided that “Closing Cash” shall be (a) increased by the amount of deposits or other payments received by the Group Companies but not yet credited to the bank accounts of the Group Companies as of such time, (b) reduced by the amount of any outstanding checks or other payments issued by the Group Companies but not yet deducted from the bank accounts of the Group Companies as of such time, and (c) calculated net of any amounts overdrawn from the bank accounts of the Group Companies as of such time. “Closing Consideration” has the meaning set forth in Section 2.3(a). “Closing Date” has the meaning set forth in Section 2.1. “Closing Date Statement” has the meaning set forth in Section 2.3(b). “Code” means the Internal Revenue Code of 1986, as amended from time to time, or corresponding provisions of subsequent superseding federal revenue Laws. “Commercial Software” means non-customized, off-the-shelf, commercially-available Software licensed pursuant to a standard form license agreement, used internally (and not licensed or sublicensed to third parties) by the Group Companies in connection with the business of the Group Companies as currently conducted, and with annual royalty, license, maintenance, support and other fees of $100,000 or less. “Common Stock” means the common stock of the Company, par value $0.00001 per share. “Company” has the meaning set forth in the Preamble. “Company Data” has the meaning set forth in Section 4.12(k). “Company Disclosure Schedule” means the disclosure schedule of even date herewith delivered by the Company to Buyer in connection with the execution and delivery of this Agreement. “Company Employment Contracts” has the meaning set forth in Section 4.17(d). “Company Intellectual Property” means all Intellectual Property that is owned or purported to be owned by the Group Companies. “Company IT Systems” means all Software, computer hardware, servers, networks, platforms, peripherals, and similar or related items of automated, computerized, or other information technology (IT) networks and systems (including, without limitation, telecommunications networks and systems for voice, data, and video) owned, leased, licensed, or used (including, without limitation, through cloud-based or other third-party service providers) by or for the Group Companies. - 3 - “Company Products” means all Software products and related services of the Group Companies that are currently or at any time in the past have been offered, licensed, sold, distributed, hosted, maintained or supported, or otherwise provided or made available by or on behalf of the Group Companies or otherwise used in the operation of the business of the Group Companies, or are currently under development by or for the Group Companies. “Company Sites” has the meaning set forth in Section 4.12(j). “Consideration” means the Closing Consideration plus the Escrow Amount, minus any portion of the Escrow Amount which the Stockholders are not entitled to pursuant to Section 2.4 and Section 9.3. “Consultant” means all Persons who are or have been engaged as consultants by the Group Companies or who otherwise provide services to the Group Companies under a contractual arrangement. “Contemplated Transactions” means the transactions contemplated by this Agreement and the Ancillary Documents. “Contract” means any agreement, contract, arrangement, understanding, obligation or commitment to which a party is bound or to which its assets or properties are subject, whether oral or written, and any amendments and supplements thereto. “Copyrights” means copyrights and works of authorship, whether or not copyrightable, and all registrations, applications for registration, and renewals of any of the foregoing. “COVID-19” means coronavirus disease or any mutation, derivation, or evolution thereof. “Closing Current Liabilities” means all current liabilities of the Group Companies as of immediately prior to the Closing, as determined on a consolidated basis in accordance with GAAP. “Customer Data” means all data, meta data, information or other content (a) transmitted to the Group Companies by users or customers of the Company Products or Company Sites or collected in the course of business of the Group Companies or (b) otherwise stored, transmitted, used or hosted by or on behalf of the Group Companies or the Company Products. “DGF” has the meaning set forth in the Preamble. “Disputed Line Item” has the meaning set forth in Section 2.4(b). “Dispute Resolution Submission” has the meaning set forth in Section 2.4(b). “Dividend” means one or more dividends (if any) declared by the board of directors of, and/or paid by, the Company in respect of any period ending on or prior to the Closing Date. - 4 - “English” has the meaning set forth in the Preamble. “Environmental Laws” means any foreign, federal, state or local law, statute, ordinance, rule or regulation governing Environmental Matters, as the same have been or may be amended from time to time, including, without limitation, any common law cause of action providing any right or remedy relating to Environmental Matters, all indemnity agreements and other contractual obligations (including, without limitation, leases, asset purchase and merger agreements) relating to Environmental Matters, and all applicable judicial and administrative decisions, orders and decrees relating to Environmental Matters. “Environmental Matter” means any matter arising out of, relating to, or resulting from pollution, contamination, protection of the environment, human health or safety, health or safety of employees, sanitation, and any matters relating to emissions, discharges, disseminations, releases or threatened releases, of Hazardous Materials into the air (indoor and outdoor), surface water, groundwater, soil, land surface or subsurface, buildings, facilities, real or personal property or fixtures or otherwise arising out of, relating to, or resulting from the manufacture, processing, distribution, use, treatment, storage, disposal, transport, handling, release or threatened release of Hazardous Materials. “Equity Securities” of any Person means any and all shares of capital stock, rights to purchase shares of capital stock, warrants or options (whether or not currently exercisable), participations or other equivalents of or interests in (however designated) the equity (including, without limitation, common stock, preferred stock and limited liability company, partnership and joint venture interests) of such Person, and all securities exchangeable for or convertible or exercisable into, any of the foregoing. “ERISA” means the Employee Retirement Income Security Act of 1974, as the same may be amended from time to time, as well as any rules and regulations promulgated thereunder and any corresponding provisions of subsequent superseding federal Laws relating to retirement matters, as from time to time in effect. “ERISA Affiliate” means a corporation which is or was at any time a member of a controlled group of corporations with the Group Companies within the meaning of Code Section 414(b), a trade or business which is or was under common control with the Group Companies within the meaning of Code Section 414(c), or a member of an affiliated service group with the Group Companies within the meaning of Code Sections 414(m) or (o). “Escrow Account” has the meaning set forth in Section 2.3(b)(ii). “Escrow Agreement” has the meaning set forth in Section 8.1(i). “Escrow Agent” means a provider of escrow services, the identity of which shall be mutually agreed upon by Buyer and the Stockholders’ Representative prior to the Closing. “Escrow Amount” means the sum of (a) the Base Consideration multiplied by ten percent (10%) plus (b) $600,000. The Escrow Amount shall be apportioned to each Stockholder based on such Stockholder’s Share. - 5 - “Estimated Closing Cash” has the meaning set forth in Section 2.3(b). “Estimated Closing Current Liabilities” has the meaning set forth in Section 2.3(b). “Event” means any event, change, development, effect, condition, circumstance, matter, occurrence or state of facts. “Excess Amount” has the meaning set forth in Section 2.4(d). “Excluded Claims” has the meaning set forth in Section 6.11(a). “Expiration Date” has the meaning set forth in Section 9.1. “Financial Statements” has the meaning set forth in Section 4.6(a). “Fraud” means common law fraud under the Laws of the State of Delaware. “GAAP” means generally accepted accounting principles as set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other Person as may be approved by a significant segment of the accounting profession in the United States. “Governmental Authority” means any nation or government, any foreign or domestic federal, state, county, municipal or other political instrumentality or subdivision thereof and any foreign or domestic entity or body exercising executive, legislative, judicial, regulatory, administrative or taxing functions of or pertaining to government, including, without limitation, any court. “Governmental Consents” has the meaning set forth in Section 4.5. “Group Companies” means, collectively, (a) the Company, (b) Fiducia Real Estate Solutions, Inc., a Delaware corporation, (c) Timios, Inc., a Delaware corporation, (d) Timios Title, a California Corporation, a California corporation, (e) Timios Agency of Nevada, Inc., a Nevada corporation, (f) Timios Title Agency of Utah, Inc., a Utah corporation, (g) Timios Agency of Alabama, Inc., an Alabama corporation, and (h) Timios Appraisal Management, Inc., a Delaware corporation. “Hall” has the meaning set forth in the Preamble. “Hazardous Materials” means any pollutants, contaminants, toxic or hazardous or extremely hazardous substances, materials, wastes, constituents, compounds, chemicals, natural or man-made elements or forces (including, without limitation, petroleum or any by-products or fractions thereof, any form of natural gas, lead, asbestos and asbestos-containing materials, building construction materials and debris, polychlorinated biphenyls (“PCBs”) and PCB-containing equipment, radon and other radioactive elements, ionizing radiation, electromagnetic field radiation and other non-ionizing radiation, sonic forces and other natural forces, infectious, carcinogenic, mutagenic or etiologic agents, pesticides, defoliants, explosives, flammables, corrosives and urea formaldehyde foam insulation) that are regulated by, or may form the basis of liability under, any Environmental Laws. - 6 - “Income Tax Return” means a Tax Return in connection with Income Taxes. “Income Taxes” means all federal, state, local and foreign (a) Taxes that are based on or measured by income or gross receipts (or that include as one of their alternative bases a Tax based on or measured by income or gross receipts), (b) franchise Taxes, and (c) Taxes that are based on or measured by any insurance premiums received (or that include as one of their alternative bases a Tax based on or measured by insurance premiums received). “Indebtedness” means, without duplication, all obligations and indebtedness of the Group Companies (a) for borrowed money (other than trade debt and other similar liabilities incurred in the ordinary course of business), (b) evidenced by a note, bond, debenture or similar instrument (including, without limitation, any interest rate swaps, collars, caps and similar hedging obligations), (c) created or arising under any capital lease, conditional sale, earn out or other arrangement for the deferral of purchase price of any property, (d) under letters of credit, banker’s acceptances, performance bonds, surety bonds or similar credit transactions, (e) for any other Person’s obligation or indebtedness of the same type as any of the foregoing, whether as obligor, guarantor or otherwise, (f) for interest on any of the foregoing and/or (g) for any premiums, prepayment or termination fees, expenses or breakage costs due upon prepayment of any of the foregoing; provided that “Indebtedness” shall exclude (a) accounts payable to trade creditors, accrued expenses, and deferred revenues, in each case to the extent arising in the ordinary course of business consistent with past practice, and (b) Indebtedness owing from the Company to any other Group Companies or from any other Group Companies to the Company. “Indemnifying Stockholder” has the meaning set forth in Section 9.2(a). “Indemnitee” has the meaning set forth in Section 9.2(d)(i). “Indemnitor” has the meaning set forth in Section 9.2(d)(i). “Initial Outside Date” has the meaning set forth in Section 10.1(d). “Insurance Policies” has the meaning set forth in Section 4.21. “Intellectual Property” means any and all rights in, arising out of, or associated with any of the following in any jurisdiction throughout the world: Copyrights; Patents; Trademarks; Trade Secrets; internet domain names and social media accounts or user names (including, without limitation, “handles”, whether or not Trademarks, all associated web addresses, URLs, websites and web pages, social media sites and pages, and all content and data thereon or relating thereto, whether or not Copyrights; Software; rights of publicity; and all other intellectual or industrial property and proprietary rights. “Intellectual Property Registrations” has the meaning set forth in Section 4.12(a). “Janero” has the meaning set forth in the Preamble. - 7 - “Knowledge of the Company” means, collectively, (a) the actual knowledge of Trevor Stoffer, Mark Angelo, and Rosselli, and (b) the actual knowledge, after reasonable inquiry, of Davison and T. Splane. “Laws” means all laws, Orders, statutes, codes, regulations, ordinances, decrees, rules, or other requirements with similar effect of any Governmental Authority. “Leased Real Property” has the meaning set forth in Section 4.11. “Liability” means, with respect to any Person, any liability or obligation of such Person of any kind, character or description, whether known or unknown, absolute or contingent, accrued or unaccrued, liquidated or unliquidated, secured or unsecured, joint or several, due or to become due, vested or unvested, executory, determined, determinable or otherwise and whether or not the same is required to be accrued on the financial statements of such Person. “Licensed Intellectual Property” means all Intellectual Property in which the Group Companies hold any rights or interests granted by any other Person. “Lien” means any lien, statutory or otherwise, security interest, mortgage, deed of trust, priority, pledge, charge, right of first refusal or other encumbrance or similar right of others, or any agreement to give any of the foregoing. “Litigation” has the meaning set forth in Section 4.16. “Loss” or “Losses” has the meaning set forth in Section 9.2(a). “L. Splane” has the meaning set forth in the Preamble. “MAF” has the meaning set forth in the Preamble. “Material Adverse Effect” means, with respect to a given Person, (a) a material adverse effect on the business, condition (financial or otherwise), assets, liabilities, results of operation or prospects of such Person and its Subsidiaries taken as a whole; provided, that any effect resulting from any of the following shall not be considered when determining whether a Material Adverse Effect shall have occurred: (i) any change resulting from conditions affecting the industry in which the Company operates or from changes in general business or economic conditions; (ii) any change resulting from compliance by Seller with the terms of, or the taking of any action contemplated by, this Agreement; (iii) conditions affecting generally the United States economy, including, without limitation, the interest rate, financial, credit, or securities markets, (iv) acts of terrorism, armed hostilities or war, (v) any change in Law or GAAP, or the interpretation thereof, (vi) the public announcement or pendency of this Agreement and the Contemplated Transactions, (vii) any failure by such Person or any of its Subsidiaries to meet any internal or published projections, forecasts, or revenue or earnings predictions (it being understood and agreed that the circumstances underlying any such failure may, unless otherwise excluded by another clause in this definition, be taken into account in determining whether a Material Adverse Effect has occurred), or (viii) natural disasters or acts of God, except, in the case of clauses (i), (iii), (iv), and (viii), to the extent (and only to the extent) that such Person and its Subsidiaries are materially disproportionately impacted, or would reasonably be expected to be materially disproportionately impacted, by such events in comparison to others in the industry in which such Person and its Subsidiaries operate or (b) an Event that prevents or materially delays, or would reasonably be expected to prevent or materially delay, consummation of the Contemplated Transactions or the performance by such Person, its Subsidiaries, or its equityholders (including, without limitation,, in the case of the Group Companies or the Stockholders) of any of their material obligations under this Agreement or the Ancillary Documents. - 8 - “Material Contracts” has the meaning in Section 4.13(a). “MBF” has the meaning set forth in the Preamble. “Montag” has the meaning set forth in the Preamble. “Most Recent Audited Financial Statements” has the meaning set forth in Section 3.6(a). “Most Recent Unaudited Balance Sheet” has the meaning set forth in Section 4.23. “Most Recent Unaudited Financial Statements” has the meaning set forth in Section 4.6(a). “NDA” has the meaning set forth in Section 6.5(a). “Objections Statement” has the meaning set forth in Section 2.4(b). “Open Source Software” means any Software that is distributed as “free software,” “open source software,” or pursuant to any license identified as an “open source license” by the Open Source Initiative (www.opensource.org/licenses) or other license that substantially conforms to the Open Source Definition (opensource.org/osd) (including, without limitation, the GNU General Public License (GPL), GNU Lesser General Public License (LGPL), GNU Affero General Public License (AGPL), MIT License (MIT), Apache License, Artistic License, and BSD Licenses). “Orders” means all judgments, orders, writs, injunctions, decisions, rulings, decrees and awards of any Governmental Authority. “Patents” means United States and foreign issued patents and patent applications (whether provisional or non-provisional), including, without limitation, divisionals, continuations, continuations-in-part, substitutions, reissues, reexaminations or otherwise resulting from any post grant review, extensions, or restorations of any of the foregoing, and other Governmental Authority-issued indicia of invention ownership (including, without limitation, certificates of invention, petty patents, and patent utility models). “PCBs” has the meaning set forth in the definition of “Hazardous Materials.” “Pending Claim” has the meaning set forth in Section 9.3(b). - 9 - “Permitted Lien” shall mean any (i) Lien in respect of current Taxes not yet due and owing and for which adequate reserves have been established, (ii) mechanics’, carriers’, workmen’s, repairmen’s or other like Liens arising or incurred in the ordinary course of business, and (iii) with respect to leasehold interests, mortgages and other Liens incurred, created, assumed or permitted to exist and arising by, through or under a landlord or owner of the leased real property. “Person” means any individual, person, entity, general partnership, limited partnership, limited liability partnership, limited liability company, corporation, joint venture, trust, business trust, cooperative, association, foreign trust or foreign business organization and the heirs, executors, administrators, legal representatives, successors and assigns of the “Person” when the context so permits. “Personally Identifiable Information” means any information that alone or in combination with other information held by or on behalf of the Group Companies can be used to specifically identify a Person, including, without limitation, a natural person’s name, street address, telephone number, e-mail address, photograph, social security number, driver’s license number, passport number, credit or debt card number or customer or financial account number or any similar information that is treated as personally identifiable information under applicable Laws. “Personnel” has the meaning set forth in Section 4.17(a). “Plan” or “Plans” has the meaning set forth in Section 4.19(a). “Preferred Stock” means the preferred stock of the Company, par value $0.00001 per share. “Pre-Closing Date Share” means (a) with respect to any Income Tax liability for a Straddle Period, the amount that would be due for the portion of the tax period beginning on the first day of the Straddle Period and ending on the Closing Date, based on an interim closing of the books as of the close of business on the Closing Date, and (b) with respect to any other Tax liability for a Straddle Period, the total amount due for the entire Straddle Period, multiplied by (x) the number of days in the Straddle Period on or before the Closing Date divided by (y) the total number of days in the Straddle Period. - 10 - “Pre-Closing Taxes” means (a) all Taxes of Group Companies with respect to Pre-Closing Tax Periods, (b) any and all Taxes of an “affiliated group” (as defined in Section 1504 of the Code) (or affiliated, consolidated, unitary, combined or similar group under applicable state, local or foreign law) of which a Group Company (or any predecessor of the Group Companies) is or was a member on or prior to the Closing Date, including, without limitation, pursuant to Treasury Regulations Section 1.1502-6 (or any predecessor or successor thereof or any analogous or similar state, local or foreign law); (c) half of all Transfer Taxes; (d) any and all Taxes arising in connection with the Contemplated Transactions; (e) any payments required to be made after the Closing Date under any Tax Sharing Agreement to which a Group Company was obligated, or was a party, on or prior to the Closing Date, and which arises from a transaction occurring on or prior to the Closing Date; and (f) any and all Taxes (including, without limitation, Taxes arising in a taxable period (or portion thereof) beginning after the Closing) attributable to the denial, reversal or similar treatment of any deductions claimed in a Pre-Closing Tax Period that were funded using proceeds of a Paycheck Protection Program loan that subsequently was forgiven, discharged or cancelled; provided, that Pre-Closing Taxes shall not include any Taxes resulting from events or transactions occurring after the Closing or on the Closing Date, other than events or transactions in the ordinary course of business occurring on the Closing Date or the Contemplated Transactions. Except as otherwise set forth herein, Pre-Closing Taxes means the amount of Taxes which would have been payable or paid without taking into account any carryback of any Tax attribute (including, without limitation, any net operating loss carryback) arising in any Tax period ending after the Closing. “Pre-Closing Tax Period” means any taxable period ending on or before the Closing Date and the pre-Closing portion of any Straddle Period. “Preliminary Statement” has the meaning set forth in Section 2.4(a). “Privacy and Security Requirements” has the meaning set forth in Section 4.12(j). “Privacy Policy” means any external or internal past or present published privacy policy of the Group Companies, including, without limitation, any policy relating to (a) the privacy of users of any Company Product or of any Company Site, (b) the collection, storage, disclosure, and transfer of any Customer Data or Personally Identifiable Information, or (c) any employee information. “Purchased Shares” has the meaning set forth in Section 2.2. “RDTRT” has the meaning set forth in the Preamble. “Real Property Leases” has the meaning set forth in Section 4.11. “Regulatory Approvals” has the meaning set forth in Section 6.3. “Releasee” has the meaning set forth in Section 6.11(a). “Releasor” has the meaning set forth in Section 6.11(a). “Representatives” means, with respect to any Person, such Person’s directors, officers, Affiliates, employees and agents. “Required Closing Cash” has the meaning set forth in Section 7.2(j). “ROFR Agreement” has the meaning set forth in Section 8.1(j). “Rosselli” has the meaning set forth in the Preamble. “Sarumaru” has the meaning set forth in the Preamble. “Shortfall Amount” has the meaning set forth in Section 2.4(c). - 11 - “SKS” has the meaning set forth in the Preamble. “Software” means computer programs, operating systems, applications, firmware, and other code, including, without limitation, all source code, object code, application programming interfaces, data files, databases, protocols, specifications, and other documentation thereof. “Stockholder” and “Stockholders” have the meaning set forth in the Preamble. “Stockholder Disclosure Schedule” means the disclosure schedule of even date herewith delivered by the Stockholders to Buyer in connection with the execution and delivery of this Agreement. “Stockholder Indemnitees” has the meaning set forth in Section 9.2(b). “Stockholder’s Liability Cap” has the meaning set forth in Section 9.2(c)(ii). “Stockholders’ Representative” has the meaning set forth in Section 11.1(a). “Stockholder’s Share” means an amount, expressed as a percentage, equal to (a) the aggregate number of shares of Common Stock held by a Stockholder as of immediately prior to the Closing that constitute Purchased Shares, after giving effect to the conversion of all then-outstanding shares of Preferred Stock, divided by (ii) the aggregate number of shares of Common Stock issued and outstanding as of immediately prior to the Closing that constitute Purchased Shares, after giving effect to the conversion of all then-outstanding shares of Preferred Stock. “Stoffer” has the meaning set forth in the Preamble. “Straddle Period” means any taxable period beginning on or before the Closing Date and ending after the Closing Date. “Subsidiary” means, with respect to any Person, any corporation or other organization, whether incorporated or unincorporated, (a) of which such Person or any other Subsidiary of such Person is a general partner (excluding partnerships, the general partnership interests of which held by such Person or any Subsidiary of such Person do not have a majority of the voting interests in such partnership), or (b) at least a majority of the securities or other interests of which having by their terms ordinary voting power to elect a majority of the board of directors or others performing similar functions with respect to such corporation or other organization is directly or indirectly owned or controlled by such Person or by any one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries. “Surviving Representations” has the meaning set forth in Section 9.1. “Tax” or “Taxes” means all federal, state, local and foreign income, profits, franchise, gross receipts, alternative minimum add-on minimum, environmental, customs duty, capital stock, severances, stamp, payroll, sales, employment, unemployment, disability, use, real property, personal property, unclaimed property, escheat, social security, unemployment, payroll, license, employee, withholding, excise production, value added, occupancy, transfer, real property gains, value added, excise, occupation, customs, duties, documentary, registration and other taxes, duties or assessments of any nature whatsoever imposed by a Governmental Authority, together with all interest, penalties or additions to tax attributable to such taxes and any Liability for Taxes of another Person by Contract (including, without limitation, any Tax Sharing Agreement), as a transferee or successor, or under § 1.1502-6 of the Treasury Regulations or analogous state, local or foreign Law, or otherwise, whether disputed or not. - 12 - “Tax Contest” shall mean any audit, hearing, examination, proposed adjustment, arbitration, deficiency, assessment, suit, dispute, claim, proceeding or other Litigation commenced, filed or otherwise initiated or convened to investigate or resolve the existence and extent of a Liability for Taxes. “Tax Return” means any report, return, statement, form or other written information (including, without limitation, elections, declarations, disclosures, schedules, estimates and information returns) filed or required to be filed by the Group Companies with a Taxing Authority in connection with any Taxes and any amendment thereto. “Tax Sharing Agreement” means any Tax indemnity agreement, Tax sharing agreement, Tax allocation agreement or similar Contract or arrangement (including, without limitation, any such agreement, contract or arrangement included in any purchase or sale agreement, merger agreement, joint venture agreement or other document). “Taxing Authority” shall mean any government or any subdivision, agency, commission or authority thereof, or any quasi-governmental or private body, having jurisdiction over the assessment, determination, collection or other imposition of Taxes. “Third Party Approvals” has the meaning set forth in Section 6.3. “Tomenga” has the meaning set forth in the Preamble. “Top Customers” has the meaning set forth in Section 4.22(a). “Top Suppliers” has the meaning set forth in Section 4.22(b). “Trade Secrets” means trade secrets, know-how, inventions (whether or not patentable), discoveries, improvements, technology, business and technical information, databases, data compilations and collections, tools, methods, processes, techniques, and other confidential and proprietary information and all rights therein. “Trademarks” means trademarks, service marks, brands, certification marks, logos, trade dress, trade names, and other similar indicia of source or origin, together with the goodwill connected with the use of and symbolized by, and all registrations, applications for registration, and renewals of, any of the foregoing. - 13 - “Transaction Expenses” means all fees, costs and expenses incurred or to be paid, whether prior to or after the Closing, by the Group Companies in connection with, arising from or relating to the Contemplated Transactions or any transaction or series of transactions similar to the Contemplated Transactions, including, without limitation, (a) fees and disbursements of counsel, financial advisors, Consultants and accountants, (b) filing fees and expenses incurred by the Group Companies in connection with any filing by the Group Companies with a Governmental Authority, and (c) any severance, change-in-control, termination, retention, sale bonus, incentive or similar amounts or benefits payable or due to any current or former employee, director or independent consultant of the Group Companies as a result of or in connection with the Contemplated Transactions, together with the employer portion of any applicable payroll Taxes owed with respect to the foregoing. “Transfer Taxes” means all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including, without limitation, any penalties and interest) incurred in connection with the Contemplated Transactions. “Treasury Regulations” means the regulations promulgated under the Code, as amended from time to time (including, without limitation, any successor regulations). “T. Splane” has the meaning set forth in the Preamble. 1.2. Rules of Construction. Unless the context otherwise requires (a) a capitalized term has the meaning assigned to it, (b) references in the singular or to “him,” “her,” “it,” “itself,” or other like references, and references in the plural or the feminine or masculine reference, as the case may be, shall also, when the context so requires, be deemed to include the plural or singular, or the masculine or feminine reference, as the case may be, (c) references to Articles, Sections and Exhibits shall refer to articles, sections and exhibits of this Agreement, unless otherwise specified, (d) the headings in this Agreement are for convenience and identification only and are not intended to describe, interpret, define or limit the scope, extent or intent of this Agreement or any provision thereof, (e) this Agreement shall be construed without regard to any presumption or other rule requiring construction against the party that drafted and caused this Agreement to be drafted, (f) all monetary figures shall be in United States dollars unless otherwise specified, and (g) the word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other theory extends and such phrase shall not mean “if.” ARTICLE II Purchase and Sale 2.1. Closing. The closing of the Contemplated Transactions (the “Closing”) will take place remotely via the electronic exchange of signature pages and closing deliverables at 10:00 A.M. New York time on the third (3rd) Business Day immediately following the day on which the last of the conditions set forth in Article VII (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of those conditions) are satisfied or waived in accordance with this Agreement, or on such other date or at such other time as Buyer and the Stockholders’ Representative may otherwise agree. The day on which the Closing actually occurs is referred to herein as the “Closing Date”. - 14 - 2.2. Purchase and Sale. Subject to the terms and conditions set forth in this Agreement, at the Closing, Buyer shall purchase from each Stockholder, and each Stockholder shall sell, transfer and assign to Buyer all of the shares of Common Stock and Preferred Stock, as applicable, held by such Stockholder (all such shares purchased by Buyer, the “Purchased Shares”) as specified in Schedule 2.2 hereto, in consideration for the Consideration. 2.3. Closing Consideration. (a) The portion of the Consideration to be received by the Stockholders in exchange for the Purchased Shares at the Closing (the “Closing Consideration”) shall be equal to (i) Forty Five Million Dollars ($45,000,000) (the “Base Consideration”), plus (ii) the excess (if any) of Closing Cash over the Required Closing Cash, less (iii) the Escrow Amount. (b) At least three (3) Business Days prior to the Closing, the Company shall deliver to Buyer a statement setting forth (i) its good faith estimate of Closing Current Liabilities (the “Estimated Closing Current Liabilities”) and of Closing Cash (“Estimated Closing Cash”), together with reasonable supporting documentation, and (ii) a calculation of the Closing Consideration based upon such estimate. Buyer shall have the opportunity to review all materials and information used by the Group Companies and their respective Representatives in preparing such estimate, and the Company shall make, and cause the other Group Companies to make, available such personnel as are reasonably necessary to assist Buyer in its review of the Closing Date Statement. Such statement, as and to the extent accepted by Buyer in its good faith reasonable discretion, is referred to herein as the “Closing Date Statement”. (i) At the Closing, Buyer shall deliver, or cause to be delivered, to the Stockholders’ Representative, by wire transfer of immediately available funds, for further distribution to the Stockholders, the Closing Consideration. The Stockholders’ Representative shall disburse, or cause to be disbursed, the Stockholder’s Share to each Stockholder. Schedule 2.2 sets forth each Stockholder’s Share of the Closing Consideration. (ii) At the Closing, Buyer shall deliver, or cause to be delivered, to the Escrow Agent, by wire transfer of immediately available funds, the Escrow Amount, which shall be held in two segregated accounts administered by the Escrow Agent in accordance with this Agreement and the Escrow Agreement (the “Escrow Account”) in order to secure the obligations of the Stockholders pursuant to Section 2.4 and Article IX. (c) The parties hereto acknowledge and agree that (i) the delivery to the Stockholders of the Consideration pursuant to this Agreement shall be administered by, and shall be the sole responsibility of, the Stockholders’ Representative upon delivery by Buyer to the Stockholders’ Representative of the Consideration in accordance with the terms of this Agreement, and (ii) after delivering, or causing to be delivered, the Consideration to the Stockholders’ Representative, neither Buyer nor any of its Affiliates (including, without limitation, the Company) shall have any liability to any Person for the allocation or distribution of the Consideration among the Stockholders. - 15 - 2.4. Post-Closing Consideration Adjustment. (a) As promptly as possible, but in any event within thirty (30) days after the Closing Date, Buyer shall deliver to the Stockholders’ Representative a statement (the “Preliminary Statement”) showing the calculation of (i) Closing Cash and (ii) the Closing Consideration substituting the Closing Cash as set forth in the Preliminary Statement for the Estimated Closing Cash as set forth in the Closing Date Statement. Each of Buyer and the Stockholders’ Representative shall provide the other party and its Representatives with reasonable access (including, without limitation, on-site and electronic access) to the books and records of the Group Companies and relevant personnel and properties during the preparation of the Preliminary Statement and the resolution of any disputes that may arise under this Section 2.4. (b) If the Stockholders’ Representative has any objections to the Preliminary Statement, the Stockholders’ Representative shall deliver to Buyer a statement setting forth its objections thereto and reasonable detail regarding the particulars thereof (an “Objections Statement”). If an Objections Statement is not delivered to Buyer within thirty (30) days after delivery of the Preliminary Statement, the Preliminary Statement shall be final, binding and non-appealable by the parties hereto. Any item or amount as to which no dispute is raised in the Objections Statement shall be final, binding and non-appealable on the parties hereto, unless such item or amount is by its nature adjusted in connection with the matters raised in the Objections Statement. The Stockholders’ Representative and Buyer shall negotiate in good faith to resolve any objections set forth in an Objections Statement, and any resolution agreed to in writing by the Stockholders’ Representative and Buyer shall be final and binding upon the parties. If the Stockholders’ Representative and Buyer are unable to reach a resolution of all such objections within fifteen (15) days after the delivery of the Objections Statement, the Stockholders’ Representative and Buyer shall submit such dispute to a jointly selected arbiter from a nationally recognized independent public accounting firm (the “Auditor”), who shall be appointed as an expert and not as an arbitrator. If the Stockholders’ Representative and Buyer are unable to agree upon an Auditor, each party shall select a nationally recognized independent public accounting firm and such chosen firms shall mutually agree upon a nationally recognized independent public accounting firm that shall serve as the Auditor; provided, that such firm shall not be the independent auditor of (or otherwise serve as a Consultant to) Buyer, the Group Companies, or any of their respective Affiliates. Each of the Stockholders’ Representative and Buyer shall furnish to the Auditor a statement setting forth its position with respect to each item or amount set forth in the Objections Statement that remains unresolved following such fifteen (15)-day period (each, a “Disputed Line Item”), together with such other information and documents as it deems relevant (each such party’s “Dispute Resolution Submission”), with copies of such submission and all such documents and information being concurrently given to the other party. The Auditor shall consider only the Disputed Line Items identified in the Dispute Resolution Submission. The Auditor’s determination shall be based solely on (i) the definition of Closing Cash contained herein and (ii) the Dispute Resolution Submissions provided by the Stockholders’ Representative and Buyer which are in accordance with the terms and procedures set forth in this Agreement (i.e., not on the basis of an independent review). The Stockholders’ Representative and Buyer shall use their commercially reasonable efforts to cause the Auditor to resolve all disagreements as soon as practicable. The Auditor shall select as a resolution of all such disagreements, in the aggregate, either the positions of Buyer or the positions of the Stockholders’ Representative as set forth in their respective Dispute Resolution Submissions based upon which party’s positions are closest to the determinations of the Auditor. The resolution of all Disputed Line Items by the Auditor shall be final, binding and non-appealable on the parties hereto. The costs and expenses of the Auditor shall be borne by Buyer and by the Stockholders based on the relative success of their positions as compared to the final determination of the Auditor. - 16 - (c) If the Closing Consideration as set forth in the Closing Date Statement is less than the Closing Consideration as set forth in the Final Statement (such shortfall, the “Shortfall Amount”), then within two (2) Business Days following the Final Determination Date, Buyer shall deliver or cause to be delivered to the Stockholders’ Representative, by wire transfer of immediately available funds, for further distribution to the Stockholders in accordance with their respective Stockholder’s Share, an aggregate amount equal to the sum of the Shortfall Amount. (d) If the Closing Consideration as set forth in the Closing Date Statement is greater than the Closing Consideration as set forth in the Final Statement (such excess, the “Excess Amount”), then within two (2) Business Days following the Final Determination Date, the Stockholders’ Representative and Buyer shall execute and deliver to the Escrow Agent joint written instructions directing the Escrow Agent to pay to Buyer such difference out of the Escrow Account by wire transfer of immediately available funds to an account designated by Buyer. (e) On or prior to the third Business Day after the Final Determination Date, the parties shall cause the release to the Stockholders’ Representative from the Escrow Account of an amount equal to $600,000, less any amounts paid out of the Escrow Account pursuant to Section 2.4(d) above. (f) Notwithstanding anything herein to the contrary, the authority of the Auditor under this Section 2.4 shall be limited solely to the resolution of the calculation of the Disputed Line Items, and all other disputes between the parties (including, without limitation, with respect to the contractual interpretation of this Section 2.4) shall be resolved in accordance with Section 11.11. 2.5. Withholding. Notwithstanding anything in this Agreement to the contrary, Buyer and its Affiliates are entitled to deduct and withhold or cause to be deducted and withheld from any amounts payable pursuant to this Agreement, such amounts as Buyer or any of its Affiliates determine is required to be deducted and withheld with respect to the making of any such payment under any applicable provision of Tax law, including, without limitation, as a result of any compensatory payment. Except with respect to withholding on a compensatory payment, Buyer shall provide notice to the Stockholders’ Representative at least three (3) Business Days in advance of any such withholding and shall reasonably cooperate (at the Stockholders’ Representative’s sole cost and expense) with the efforts of the Stockholders’ Representative to minimize or eliminate any such withholding. To the extent that amounts are so deducted and withheld, such deducted and withheld amounts are to be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding was made. - 17 - ARTICLE III Representations and Warranties of each Stockholder Except as set forth in the Stockholder Disclosure Schedule (it being agreed that any matter disclosed in the Stockholder Disclosure Schedule with respect to any section of this Agreement shall be deemed to have been disclosed with respect to any other section to which such matter relates so long as the relation of such matter to such other section is readily apparent from the description of such matter), each Stockholder represents and warrants, as of the date hereof and on and as of the Closing Date with respect to such Stockholder and not any other Stockholder, as follows: 3.1. Organization and Power. If Stockholder is not a natural person, it is duly organized, validly existing and in good standing under the Laws of its jurisdiction of organization. Such Stockholder has full power and authority or legal capacity, as applicable, to execute, deliver and perform this Agreement and the Ancillary Documents to which he, she or it is a party and to consummate the Contemplated Transactions. If Stockholder is not a natural person, it has all power and authority necessary to enable it to carry on its business as currently conducted, except where the failure to possess such power and authority would not reasonably be expected to interfere with, prevent, or materially delay such Stockholder’s ability to enter into and perform its obligations under this Agreement and the other Ancillary Documents to which it is a party or to consummate the Contemplated Transactions. 3.2. Authorization and Enforceability. The execution and delivery of this Agreement and the Ancillary Documents to which such Stockholder is a party and the performance by such Stockholder of the Contemplated Transactions that are required to be performed by such Stockholder have been duly authorized by the board of directors or other governing body (if applicable) of such Stockholder (if applicable), in accordance with applicable Law and the certificate of incorporation and bylaws or other similar organizational documents, as applicable, of such Stockholder and no other organizational proceedings, as applicable, on the part of such Stockholder are necessary to authorize the execution, delivery and performance of this Agreement and the Ancillary Documents to which such Stockholder is a party or the consummation of the Contemplated Transactions that are required to be performed by such Stockholder. This Agreement and each of the Ancillary Documents to be executed and delivered at or prior to the Closing by such Stockholder will be, at the Closing, duly authorized, executed and delivered by such Stockholder and constitutes, or as of the Closing Date will constitute, valid and legally binding agreements of such Stockholder enforceable against such Stockholder in accordance with their terms, subject to bankruptcy, insolvency, reorganization and other Laws of general applicability relating to or affecting creditors’ rights and to general equity principles. 3.3. Purchased Shares. All of the Purchased Shares held by such Stockholder are owned beneficially and of record by the Stockholder, free and clear of any Lien (other than those arising from applicable securities Laws). 3.4. No Violation. - 18 - The execution and delivery by such Stockholder of this Agreement and the Ancillary Documents to which such Stockholder is a party, consummation of the Contemplated Transactions that are required to be performed by such Stockholder, and compliance with the terms of this Agreement (as applicable) and the Ancillary Documents to which such Stockholder is a party will not (a) conflict with or violate any provision of the certificate of incorporation, bylaws or similar organizational documents of such Stockholder (if applicable), (b) result in any violation of or default, give rise to a right of termination, cause the forfeiture of any right, or require any notice or consent, under (with or without notice or lapse of time or both) any provision of any Contract to which such Stockholder is a party or by which such Stockholder or its properties are bound or affected, (c) assuming that all consents, approvals and authorizations contemplated by Section 3.5 have been obtained and all filings described therein have been made, conflict with or violate any Law applicable to such Stockholder or by which any of its properties are bound or affected, or (d) result in the creation of, or require the creation of, any Lien upon any shares of capital stock or any property of such Stockholder, except, with respect to clauses (b)-(d), as would not reasonably be expected to interfere with, prevent, or 3.5. Governmental Authorizations and Consents. To the actual knowledge of such Stockholder, no Governmental Consents are required to be obtained or made by such Stockholder in connection with the execution, delivery, performance, validity and enforceability of this Agreement or any Ancillary Documents to which such Stockholder is a party or the consummation by such Stockholder of the Contemplated Transactions. 3.6. No Liens. There are no Liens with respect to Taxes on any of the Purchased Shares held by such Stockholder. 3.7. Disclosure. Except for the representations and warranties made by such Stockholder contained in this Article 3, neither the Stockholder nor any other Person acting on its behalf makes or has made any verbal or written representation or warranty, expressed or implied, relating or with respect to this Agreement or the transactions contemplated hereby to Buyer or any other Person, or as to the accuracy or completeness of any information regarding any Group Company or any Stockholder furnished or made available to the Buyer and its representatives, and no Group Company or Stockholder shall have or be subject to any liability to the Buyer or any other Person resulting from the furnishing to the Buyer, or the Buyer’s use of or reliance on, any such information or any information, documents or material made available to the Buyer in any form in expectation of, or in connection with, the Contemplated Transactions. ARTICLE IV Representations and Warranties of the Company Except as set forth in the Company Disclosure Schedule (it being agreed that any matter disclosed in the Company Disclosure Schedule with respect to any section of this Agreement shall be deemed to have been disclosed with respect to any matter), the Company represents and warrants, as of the date hereof and on and as of the Closing Date, as follows: - 19 - 4.1. Organization and Power. (a) Each Group Company is a corporation duly incorporated, validly existing and in good standing under the Laws of its jurisdiction of incorporation. Each Group Company has full power and authority to execute, deliver and perform this Agreement (as applicable) and the Ancillary Documents to which it is a party and to consummate the Contemplated Transactions. Each Group Company has all power (corporate or otherwise) and authority, and possesses all governmental licenses, permits, authorizations and approvals, necessary to enable it to own or lease and to operate its properties and assets and carry on its business as currently and historically conducted, except where the failure to possess such power, authority, licenses, permits, authorizations and approvals would not reasonably be expected to result in material Liability or otherwise materially interfere with the conduct of the business of the Group Companies in the manner currently conducted. Each Group Company is qualified or licensed to conduct its business in the jurisdiction(s) listed on Section 4.1 of the Company Disclosure Schedule. 4.2. Authorization and Enforceability. The execution and delivery of this Agreement (as applicable) and the Ancillary Documents to which each Group Company is a party and the performance by such Group Company as the case may be, of the Contemplated Transactions that are required to be performed by such Group Company, as the case may be, have been duly authorized by the board of directors or other governing body (if applicable) of such Group Company, as the case may be, in accordance with applicable Law and the certificate of incorporation and bylaws or other similar organizational documents, as applicable, of such Group Company, as the case may be, and no other organizational proceedings, as applicable, on the part of such Group Company, as the case may be, are necessary to authorize the execution, delivery and performance of this Agreement (as applicable) and the Ancillary Documents to which such Group Company, as the case may be, is a party or the consummation of the Contemplated Transactions that are required to be performed by such Group Company, as the case may be. This Agreement (as applicable) and each of the Ancillary Documents to be executed and delivered at or prior to the Closing by such Group Company, as the case may be, will be, at the Closing, duly authorized, executed and delivered by such Group Company, as the case may be, and constitutes, or as of the Closing Date will constitute, valid and legally binding agreements of such Group Company, as the case may be, enforceable against such Group Company, as the case may be, in accordance with their terms, subject to bankruptcy, insolvency, reorganization and other Laws of general applicability relating to or affecting creditors’ rights and to general equity principles. - 20 - 4.3. Capitalization. (a) The authorized capital stock of the Company consists solely of (i) 10,000,000 shares of Common Stock, of which 9,543,157 are issued and outstanding, and (ii) 5,000,000 shares of Preferred Stock, of which none are issued and outstanding. The record owners of all of the issued and outstanding shares of Capital Stock (together with the number of shares of Capital Stock owned by each) are as set forth on Section 4.3(a) of the Company Disclosure Schedule. The Purchased Shares constitute all of the Capital Stock and Equity Securities of the Company. All of the Purchased Shares are duly authorized, have been validly issued and are fully paid and non-assessable, are owned beneficially and of record by the Stockholder, and were issued in compliance with applicable securities Laws or exemptions therefrom. Except as set forth on Section 4.3(a) of the Company Disclosure Schedule, no shares of Capital Stock or other Equity Securities of the Company are issued, reserved for issuance or outstanding. No Person has preemptive rights with respect to the Purchased Shares, and there are no agreements providing for the issuance (contingent or otherwise) of, or any calls against, commitments by, or claims against the Company relating to, any of the Purchased Shares. The Company is not a party to and there is not, and immediately after the Closing there will not be, any Contract, right of first refusal, right of first offer, proxy, voting agreement, voting trust, registration rights agreement or stockholders agreement, whether or not the Company is a party thereto, with respect to the purchase, sale or voting of any Purchased Shares. (b) Section 4.3(b) of the Company Disclosure Schedule sets forth a true and correct list of each Group Company (other than the Company), listing for each such Group Company its name, its jurisdiction of incorporation, its authorized capital stock or other Equity Securities, the number and type of its issued and outstanding shares of capital stock or other Equity Securities and the current record and beneficial ownership of such shares and/or other Equity Securities. Other than the Persons listed on Section 4.3(b) of the Company Disclosure Schedule, there are no other corporations, partnerships, joint ventures, associations or other similar entities in which any Group Company owns, of record or beneficially, any direct or indirect equity or other similar interest or any right (contingent or otherwise) to acquire the same. All issued and outstanding shares of the capital stock of each Group Company (other than the Company) are duly authorized, have been validly issued and are fully paid and non-assessable, are owned beneficially and of record by the Persons indicated as the beneficial owners thereof on Section 4.3(b) of the Company Disclosure Schedule, free and clear of any Lien (other than those arising from applicable securities Laws), and were issued in compliance with applicable securities Laws or exemptions therefrom. No Person has preemptive rights with respect to any capital stock or other Equity Securities of any Group Company, and there are no agreements providing for the issuance (contingent or otherwise) of, or any calls against, commitments by, or claims against any Group Company relating to, any shares of capital stock of such Group Company. No Group Company is a party to, and there is not, and immediately after the Closing there will not be, any Contract, right of first refusal, right of first offer, proxy, voting agreement, voting trust, registration rights agreement or stockholders agreement, whether or not a Group Company is a party thereto, with respect to the purchase, sale or voting of any shares of capital stock or any other Equity Securities of such Group Company. - 21 - 4.4. No Violation. The execution and delivery by each Group Company of this Agreement (as applicable) and the Ancillary Documents to which such Group Company is a party, by such Group Company, and compliance with the terms of this Agreement (as will not (a) conflict with or violate any provision of the certificate of incorporation, bylaws or similar organizational documents of such Group Company, (b) result in any violation of or default, give rise to a right of termination, cause the forfeiture of any right, or require any notice or consent, under (with or without notice or lapse of time or both) any provision of any Material Contract to which such Group Company is a party or by which such Group Company or their respective properties are bound or affected, (c) assuming that all consents, approvals and authorizations contemplated by Section 4.5 have been obtained and all filings described therein have been made, conflict with or violate any Law applicable to such Group Company or by which any of their respective properties are bound or affected, or (d) result in the creation of, or require the creation of, any Lien upon any shares of capital stock or any property of such Group Company, except, with respect to clauses (b)-(d), as would not reasonably be expected to result in material Liability or otherwise materially interfere with the conduct of the business of such Group Company in the manner currently conducted. 4.5. Governmental Authorizations and Consents. Except as set forth on Section 4.5 of the Company Disclosure Schedule, no consents, licenses, approvals or authorizations of, or registrations, declarations or filings with, any Governmental Authority (“Governmental Consents”) are required to be obtained or made by any Group Company in connection with the execution, delivery, performance, validity and enforceability of this Agreement or any Ancillary Documents to which such Group Company is a party or the consummation by such Group Company of the Contemplated Transactions. 4.6. Financial Statements. (a) Section 4.6(a) of the Company Disclosure Schedule sets forth the following financial statements (the “Financial Statements”): (i) the audited consolidated balance sheet of the Group Companies as of December 31, 2019, and the related statements of income, stockholders’ equity and cash flows for the year ending December 31, 2019 (the “Most Recent Audited Financial Statements”), (ii) the audited consolidated balance sheet of the Group Companies as of December 31, 2018, and the related statements of income, stockholders’ equity and cash flows for the year ending December 31, 2018, and (iii) the unaudited consolidated balance sheet of the Group Companies as of July 31, 2020, and the related unaudited statements of income, stockholders’ equity and cash flows, respectively, for the seven (7)-month period ended on such date (the “Most Recent Unaudited Financial Statements”). Each of the Financial Statements has been prepared in accordance with GAAP consistently applied throughout the periods indicated and consistent with each other (except (i) as may be otherwise indicated in such Financial Statements or the notes thereto, (ii) in the case of unaudited interim statements, to the extent they may exclude footnotes or may be condensed or summary statements and (iii) that the Most Recent Unaudited Financial Statements need not contain footnotes and other presentation items that may be required by GAAP) and fairly presents in all material respects the consolidated financial condition of the Group Companies as of its respective date and the consolidated results of operations and stockholders’ equity, or cash flows, as the case may be, of the Group Companies for the period covered thereby, except that the Most Recent Unaudited Financial Statements need not contain footnotes and other presentation items that may be required by GAAP). - 22 - (b) The financial books and records of the Group Companies have been maintained in accordance with customary business practices and fairly and accurately reflect, in all material respects, on a basis consistent with past periods and throughout the periods involved, (i) the consolidated financial position of the Group Companies and (ii) all transactions of the Group Companies. No Group Company has received any advice or notification from its independent accountants that it has used any improper accounting practice that would have the effect of not reflecting or incorrectly reflecting in the books and records of such Group Company any properties, assets, liabilities, revenues, expenses, equity accounts or other accounts. (c) The Group Companies do not have any material Liabilities (whether or not the subject of any other representation or warranty hereunder), except for Liabilities (i) reflected in the Most Recent Unaudited Financial Statements, (ii) incurred in the ordinary course of business consistent with past practice since the date of the Most Recent Unaudited Financial Statements, or (iii) incurred under this Agreement and the Ancillary Documents or in connection with the Contemplated Transactions. 4.7. Absence of Certain Changes. (a) Since the date of the Most Recent Unaudited Financial Statements, the Group Companies have conducted their respective businesses in the ordinary course and in a manner consistent with past practice, and there has not been any Event that has had, or would be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect on the Group Companies. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement, since the date of the Most Recent Unaudited Financial Statements, the Group Companies have not: (i) acquired, sold, leased, abandoned, allowed to lapse, licensed, transferred, mortgaged or assigned any material assets, tangible or intangible, other than sales of goods or services in the ordinary course of business consistent with past practice; (ii) incurred, assumed, guaranteed or discharged any Liability, including, without limitation, any Indebtedness or mortgages, or otherwise created or permitted to exist any Lien (other than Permitted Liens) on any of their respective assets, other than (except in the case of Indebtedness) in the ordinary course of business consistent with past practice; (iii) canceled, compromised, knowingly waived or released any right or claim (or series of related rights and claims) under Material Contracts or Intellectual Property; (iv) canceled, compromised, knowingly waived or released any right, claim or account receivable involving amounts that exceed $50,000 in the aggregate; (v) committed to make any capital expenditure (or series of related capital expenditures) involving amounts that exceed $50,000 in the aggregate; (vi) suffered any damages to or destruction of any tangible assets (whether or not covered by insurance), involving amounts that exceed $50,000 in the aggregate; (vii) modified any of their respective certificates of incorporation, bylaws or similar organizational documents; - 23 - (viii) issued, sold or otherwise permitted to become outstanding any shares of their respective capital stock, or split, combined, reclassified, repurchased or redeemed any such shares; (ix) made any capital investment in, any loan to, or any acquisition of the securities or assets of any other Person other than acquisitions of inventory and supplies in the ordinary course of business consistent with past practice; (x) failed to maintain in full force and effect insurance policies on their respective properties providing coverage and amounts of coverage comparable to the coverage and amounts of coverage provided under their policies of insurance in effect on the date of the Most Recent Audited Financial Statements; (xi) made any change in the rate of compensation, commission, bonus or other direct or indirect remuneration payable, or agreed to pay, conditionally or otherwise, any bonus, incentive, retention or other compensation, any change in control payment, retirement, welfare, fringe or severance benefit or vacation pay, to or in respect of any employee, other than increases and payments in the ordinary course of business and in a manner consistent with past practice in the compensation payable to employees (none of whom is a director or officer of the Group Companies); (xii) materially modified or changed any of their respective business organizations or materially and adversely modified or changed their respective relationships with its suppliers, customers and others having business relations with them; (xiii) except as otherwise required by Law, entered into, amended, modified, varied, altered or otherwise changed any of the Plans; (xiv) entered into, modified, terminated, waived, amended or otherwise altered the terms or provisions of any Material Contract outside the ordinary course of business; (xv) abandoned, permitted to lapse or failed to maintain in full force and effect any Company Intellectual Property, or failed to take or maintain reasonable measures to protect the confidentiality of any Intellectual Property used by or for the Group Companies in conducting their respective businesses; (xvi) made, revoked or changed any Tax election, changed any annual Tax accounting period, changed any method of Tax accounting, entered into any closing agreement with respect to any Tax, settlement, concession, compromise or abandonment of any Tax claim or assessment or surrendered any right to claim a Tax refund, filed any amended Tax Return, or consented to any extension or waiver of the limitation period applicable to any Tax claim or assessment; (xvii) adopted a plan or agreement of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization, or other material reorganization; or (xviii) authorized, agreed, resolved or committed to any of the foregoing. - 24 - (b) Since the Most Recent Unaudited Financial Statements, there has been no Material Adverse Effect on the Group Companies. Despite COVID-19, the Group Companies have been able to continue normal operations, including, without limitation, interacting with clients (both current and prospective), through, in part, instituting remote work and travel policies. There has been no material negative impact on the operations, financial results, or, to the Knowledge of the Company, relationships of the Group Companies with their respective customers, suppliers, landlords or Governmental Authorities having jurisdiction over them as a result of COVID-19. 4.8. Relationships with Affiliates. No officer, director, Stockholder, or any Affiliate of any of the foregoing (a) has any interest in any property (real, personal, or mixed and whether tangible or intangible), used in or pertaining to the businesses of the Group Companies as currently conducted or contemplated to be conducted, (b) except for the ownership of less than two percent (2%) of the outstanding common stock of a publicly-held corporation, owns of record or as a beneficial owner, has any equity interest or any other financial or profit interest in a Person that has had business dealings or a material financial interest in any transaction with the Group Companies or (c) is a party to any material Contract (except for employment agreements) with the Group Companies, including, without limitation, with respect to compensation or remuneration to be paid to such officer, director, Stockholder, or Affiliate in connection with this Agreement or the Contemplated Transactions. 4.9. Indebtedness to and from Officers and Directors of the Group Companies. No Group Company is indebted, directly or indirectly, to any Person who is a Stockholder, officer or director of a Group Company, or any Affiliate thereof (other than another Group Company) in any amount whatsoever, other than for salaries for services rendered or reimbursable business expenses. No Stockholder, officer, director, or Affiliate is indebted to the Group Companies, except for advances made to employees of the Group Companies in the ordinary course of business consistent with past practice to meet reimbursable business expenses reasonably anticipated to be incurred by such obligor. 4.10. Assets. (a) The assets and rights of the Group Companies include all of the assets and rights of the Group Companies which were used in the conduct of its business as conducted as of the date of the Most Recent Unaudited Financial Statements, subject to such changes as have occurred in the ordinary course of business consistent with past practice or that are otherwise permitted by this Agreement since such date. All of such assets necessary for the conduct of the business of the Group Companies are in normal operating condition and repair, ordinary wear and tear excepted. (b) The Group Companies collectively have good and marketable title to, or valid leasehold interests in, all of the tangible and intangible assets and personal property shown to be owned or leased by them on the Most Recent Unaudited Financial Statements or acquired thereafter, free and clear of any Lien, except for (i) assets disposed of since such date in the ordinary course of business consistent with past practice or otherwise permitted by this Agreement, (ii) Liens reflected in the Financial Statements or the notes thereto, (iii) assets validly leased from third parties, and (iv) Permitted Liens. Such assets and personal property constitute all of the assets and properties necessary to conduct the business of the Group Companies immediately following the Closing in substantially the manner conducted immediately prior to the Closing. - 25 - 4.11. Real Property. Section 4.11 of the Company Disclosure Schedule includes a true and complete list of all real property leases, subleases, or other occupancies used by the Group Companies or to which a Group Company is a party as a lessee or lesser (the “Real Property Leases,” and the properties leased thereunder, the “Leased Real Property”). No Person other than the Group Companies has any right to use, occupy or lease any of the Leased Real Property. The leasehold interests relating to the Real Property Leases are free and clear of all Liens, other than Permitted Liens. No Group Company has received any written notice from the other party to any Real Property Lease of the termination or proposed termination thereof. No Group Company is, and, to the Knowledge of the Company, no other Person is, in violation of a condition or agreement contained in any easement, restrictive covenant or any similar instrument or agreement affecting the Leased Real Property in any material respect. The Group Companies do not own any real property. 4.12. Intellectual Property. (a) Section 4.12(a) of the Company Disclosure Schedule includes a true and complete list of: (i) all Company Intellectual Property that is subject to any issuance, registration, or application by or with any Governmental Authority or authorized private registrar in any jurisdiction (collectively, “Intellectual Property Registrations”), including, without limitation, issued Patents, registered Trademarks, domain names, and Copyrights, and pending applications for any of the foregoing, and specifying as to each, as applicable, the title, mark, design; the record owner and inventor(s), if any; the jurisdiction by or in which it has been issued, registered, or filed; the patent, registration, or application serial number; the issue, registration, or filing date; and the current status; (ii) all unregistered Trademarks included in the Company Intellectual Property; and (iii) all Company Products or other Software of the Group Companies. No Company Intellectual Property has been opposed, cancelled, held unenforceable or otherwise challenged, and no Litigation is pending or, to the Knowledge of the Company, threatened in relation to any Company Intellectual Property. All Company Intellectual Property is valid, subsisting and enforceable and in full force and effect. Each of the Intellectual Property Registrations is duly registered or filed in the name of a Group Company. All assignments and other instruments necessary to establish, record, and perfect the Group Companies’ ownership interest in the Intellectual Property Registrations have been validly executed, delivered, and filed with the relevant Governmental Authorities and authorized registrars. All required filings and fees related to the Intellectual Property Registrations have been timely submitted with and paid to the relevant Governmental Authorities and authorized registrars. The Company has provided Buyer with true and complete copies of all file histories, documents, certificates, correspondence, assignments, and other instruments relating to the Intellectual Property Registrations. - 26 - (b) The Group Companies collectively are the sole and exclusive legal and beneficial, and with respect to the Intellectual Property Registrations, record, owner of all right, title, and interest in and to the Company Intellectual Property, and has the valid and enforceable right to use all other Intellectual Property used or held for use in or necessary for the conduct of the business of the Group Companies as currently conducted, in each case, free and clear of all Liens other than Permitted Liens. There is no Litigation (including, without limitation, any opposition, cancellation, revocation, review, post grant reviews or other proceeding) pending or, to the Knowledge of the Company, threatened challenging the validity, enforceability, registrability, patentability, or ownership of any Company Intellectual Property or the Group Companies’ right, title, or interest in or to any Company Intellectual Property. No Group Company is subject to any outstanding or prospective Order (including, without limitation, any motion or petition therefor) that does or would reasonably be expected to restrict or impair the ownership or use of any Company Intellectual Property or Licensed Intellectual Property, and no Group Company is aware of any facts or circumstances that could reasonably be expected to give rise to any such Litigation. (c) Section 4.12(c) of the Company Disclosure Schedule is a true and complete list of all licenses, sublicenses and other agreements as to which the Group Companies are a party and pursuant to which the Group Companies have acquired or are authorized to use any Intellectual Property (other than those comprising or reflected in Commercial Software). The Group Companies are not obligated to make any payment or grant any rights to any third party in respect of Intellectual Property used by the Group Companies or in connection with the business of the Group Companies as currently conducted (other than those comprising or reflected in Commercial Software). (d) Except pursuant to a license agreement entered into with a Group Company in the ordinary course of business, no Person (other than the Group Companies) has an interest in or any right to use any of the Company Intellectual Property. To the Knowledge of the Company, there has not been, and there is not now, any unauthorized use, infringement or misappropriation by any third party, including, without limitation, by any employee or former employee of the Group Companies, of any of the Company Intellectual Property. No stockholder, director, officer or employee of, or Consultant to, the Group Companies has any right to use, other than in connection with the business activities of the Group Companies as presently conducted, any of the Company Intellectual Property. (e) The operation of the business of the Group Companies as currently and formerly conducted, including, without limitation, the use of the Company Intellectual Property and Licensed Intellectual Property in connection therewith, does not misappropriate, infringe or otherwise violate in any respect the Intellectual Property or other rights of any Person. There is no Litigation review, post grant review or other proceeding) pending or, to the Knowledge of the Company, threatened alleging any misappropriation, infringement, or other violation by the Group Companies of the Intellectual Property of any Person, and no Group Company is aware of any facts or circumstances that could reasonably be expected to give rise to any such Litigation. (f) The Group Companies have taken reasonable precautions to protect the secrecy, confidentiality and value of all Trade Secrets included in the Company Intellectual Property and Licensed Intellectual Property, including, without limitation, by requiring all Persons having access thereto to execute binding, written non-disclosure agreements. Such Trade Secrets are not part of the public knowledge or literature, and have not been used, divulged or appropriated either for the benefit of any Person (other than the Group Companies) or to the detriment of the Group Companies. - 27 - (g) The Group Companies have entered into binding, valid and enforceable, written Contracts with each current and former Personnel and independent contractor who is or was involved in or has contributed to the invention, creation, or development of any Intellectual Property during the course of employment or engagement with the Group Companies whereby such Personnel or independent contractor (i) acknowledges the applicable Group Company’s exclusive ownership of all Intellectual Property invented, created, or developed by such employee or independent contractor within the scope of his or her employment or engagement with the Group Companies; (ii) grants to the applicable Group Company a present, irrevocable assignment of any ownership interest such employee or independent contractor may have in or to such Intellectual Property; and (iii) irrevocably waives any right or interest, including, without limitation, any moral rights, regarding any such Intellectual Property, to the extent permitted by applicable Law. The Company has provided Buyer with true and complete copies of all such Contracts. (h) Neither the execution, delivery, or performance of this Agreement, nor the consummation of the Contemplated Transactions, will result in the loss or impairment of, or require the consent of any other Person in respect of, the Group Companies’ right to own or use any Company Intellectual Property or Licensed Intellectual Property. (i) All Company IT Systems are in good working condition and are sufficient for the operation of the Group Companies’ business as currently conducted. There have been no unauthorized intrusions or breaches of security, malfunctions, failures, breakdowns, continued substandard performance, denials-of-service, or other cyber incidents, including, without limitation, any cyberattacks, or other similar adverse events affecting the Company IT Systems. The Group Companies have implemented and maintained appropriate backup, disaster recovery, and Software and hardware support arrangements for the Company IT systems. (j) Section 4.12(j) of the Company Disclosure Schedule accurately described the type of Personally Identifiable Information and Customer Data collected (and the process by which such information is collected) by the Group Companies through internet websites, mobile applications and online services owned, maintained or operated by or on behalf of the Group Companies (collectively, the “Company Sites”), and through any Company Products or any other method, including, without limitation, the types of Personally Identifiable Information and Customer Data, and the method of collection for each. The Group Companies have at all times complied in all material respects with all applicable Laws, contractual obligations, requirements of self-regulatory organizations binding upon the Group Companies, consumer-facing statements of the Group Companies in any marketing or promotional materials and each Privacy Policy relating to (i) the privacy of users of Company Sites or Company Products, (ii) the past and present collection, use, storage, transfer, retention, dissemination, disposal and any other processing of any Personally Identifiable Information and Customer Data collected or used by the Group Companies in any manner or maintained by third Persons having authorized access to such information, or (3) the transmission of unsolicited communications (collectively, the “Privacy and Security Requirements”). No Group Company has received any written notice from any Governmental Authority that it is under investigation by any Governmental Authority for a violation of any Privacy and Security Requirements or applicable Laws. The Company has made available to Buyer complete and accurate copies of all written complaints or notices delivered to the Group Companies during the past twelve (12) months alleging or providing notice of a violation of any Privacy and Security Requirement. All electronic addresses acquired, maintained, updated (including, without limitation, operationalizing opt-out requests) and stored by or on behalf of the Group Companies, and all electronic messages sent and/or delivered by or on behalf of the Group Companies have been acquired, maintained, updated, stored, sent and/or delivered, as may be required by and in accordance in all material respects with all applicable Laws, including but not limited to all Laws relating to the delivering, sending, sharing or transmitting of electronic or telephonic messages, and/or using electronic addresses. Prior to the installation of any computer program (including without limitation computer programs that have been caused to be installed by the Group Companies) on a third party’s computer system or device, and prior to any electronic message being sent from such computer system or device, requisite consent to the installation of such computer program and all transmissions of electronic messages has been obtained from the owner or authorized user of such computer system or device. - 28 - (k) The Group Companies have at all times taken commercially reasonable steps (including, without limitation, implementing and monitoring compliance with reasonable measures with respect to technical and physical security) consistent in all material respects with requirements of applicable Laws or contractual obligations to protect the confidentiality, availability, security and integrity of the Group Companies’ data, information technology assets and all Personally Identifiable Information and Customer Data within the control of the Group Companies (collectively, the “Company Data”). Such steps and procedures comply in all material respects with all Privacy and Security Requirements and all applicable Laws relating to the security of the Company Data. This includes, but is not limited to, the Group Companies having implemented, maintained, and monitored reasonable measures with respect to technical, administrative, and physical security designed to preserve and protect the confidentiality, availability, security, and integrity of all Company Data. There is no, nor has there ever been, any complaint to, or to the Knowledge of the Company, any audit, proceeding or investigation (formal or information), or any claim against, any Group Company or any of its end-users or customers, initiated by a private Person or any Governmental Authority with respect to the security, confidentiality, transmission, availability, or integrity of any Company Data. To the Knowledge of the Company, there has been no material unauthorized access to or acquisition of the Company Data or Company Intellectual Property. 4.13. Contracts. (a) Section 4.13(a) of the Company Disclosure Schedule is a true and complete list, as of the date hereof, of all of the following Contracts to which a Group Company is a party or by which it or its assets or properties are bound (the “Material Contracts”): (i) Contracts evidencing or relating to Indebtedness; (ii) Contracts evidencing or relating to any obligations of a Group Company with respect to the issuance, sale, repurchase or redemption of any Equity Securities of such Group Company; - 29 - (iii) Contracts with any customers of, or suppliers to, the Group Companies which involved aggregate payments to or from the Group Companies in the most recent twelve (12)-month period of in excess of $100,000; (iv) all Real Property Leases; (v) all Company Employment Contracts; (vi) Contracts evidencing partnerships or joint ventures in which any Group Company has an interest; (vii) Contracts that obligate a Group Company with respect to contingent payments or any type; (viii) Contracts relating to Intellectual Property listed in Sections 4.12(c) and 4.12(d) of the Company Disclosure Schedule; (ix) Contracts by and between a Group Company, on the one hand, and any Affiliate of a Group Company, other Persons with whom a Group Company is not dealing at arm’s-length, employee, officer or director of a Group Company, or entity controlled by any employees, officers or directors of a Group Company, on the other hand; (x) leases of personal property under which a Group Company is the lessee and is obligated to make payments more than $100,000 per annum; (xi) Contracts relating to any Litigation involving a Group Company and pursuant to which such Group Company has any ongoing obligations; (xii) Contracts relating to the acquisition or disposition of any capital stock, business or product line of any other Person entered into at any time during the last three (3) years; (xiii) Contracts limiting the freedom of a Group Company or any Affiliate to engage in any line of business, acquire any entity or compete with any Person or in any market or geographical area, or to solicit any individual or class of individuals for employment; and (xiv) any Contract not otherwise listed above that is, individually or in the aggregate, material to the Group Companies. (b) A true and complete copy of each Material Contract has been made available to Buyer. All Material Contracts are valid, binding and in full force and effect and enforceable by the Group Company party thereto in accordance with their respective terms, subject to bankruptcy, insolvency, reorganization and other Laws of general applicability relating to or affecting creditors’ rights and to general equity principles. As to each Material Contract, there does not exist thereunder any material breach, violation or default on the part of the Group Company party thereto or, to the Knowledge of the Company, any other party to such Material Contract, and there does not exist any event, occurrence or condition, including, without limitation, the consummation of the Contemplated Transactions, which (with or without notice, passage of time, or both) would constitute a material breach, violation or default thereunder on the part of the Group Company party thereto. No material waiver has been granted by any Group Company or any of the other parties thereto under any of the Material Contracts. - 30 - 4.14. Compliance with Laws. No Group Company is, and during the past three (3) years no Group Company has been, in violation of in any material respect, and, to the Knowledge of the Company, no event has occurred or circumstance exists that (with or without notice or lapse of time) would constitute or result in a violation in any material respect by a Group Company of, or failure on the part of a Group Company to comply with in any material respect, any Law that is or was applicable to it or the conduct or operation of its business or the ownership or use of any of its assets. 4.15. Environmental Matters. Each Group Company (i) is, and at all times has been, in compliance in all material respects with all applicable Environmental Laws, and (ii) has obtained, and is in compliance in all material respects with, all permits, licenses, authorizations, registrations and other governmental consents required by applicable Environmental Laws, and has made all appropriate filings for issuance or renewal of such permits, licenses, authorizations, registrations and consents. There is no contamination of, and there have been no releases or, to the Knowledge of the Company, threatened releases of Hazardous Materials at the Leased Real Property or any real property formerly owned, leased or operated by the Group Companies (or any predecessor of a Group Company), in each case, that would require notification to governmental entities, investigation and/or remediation pursuant to any Environmental Laws. There are no past or present conditions, events, circumstances, facts, activities, practices, incidents, actions, omissions or plans that would reasonably be expected to give rise to any material liability or other obligation under any Environmental Laws. There are no claims, notices, civil, criminal or administrative actions, suits, hearings, investigations, inquiries or proceedings pending or, to the Knowledge of the Company, threatened that are based on or related to any Environmental Matters relating to the business of the Group Companies. 4.16. Litigation. There are no claims, actions, suits, audits, inquiries, proceedings or governmental investigations (“Litigation”) pending or, to the Knowledge of the Company, threatened involving a Group Company or its properties or business, at Law or in equity or before any Governmental Authority, or that have been settled, dismissed or resolved in the preceding three (3) years. No Group Company is subject to any Order arising from any Litigation and, to the Knowledge of the Company, no such Order is threatened to be imposed by any Governmental Authority. 4.17. Personnel Matters. (a) True, accurate, and complete lists of all of the directors, officers, and employees of the Group Companies (individually and collectively, “Personnel”) as of the date hereof and their positions are included in Section 4.17(a) of the Company Disclosure Schedule together with the following as to each: (i) name, (ii) job title or description, (iii) principal place of employment, (iv) base salary or wage level (including, without limitation, any bonus opportunities or deferred compensation arrangements) and also showing any bonus or other remuneration other than salary paid during the Company’s fiscal year ending December 31, 2019, (v) date of hire, (vi) leave of absence status (including, without limitation, expected return to work date if known), (vii) whether exempt or non-exempt under the Fair Labor Standards Act and (viii) visa status (if any). True and complete information concerning the respective salaries, wages, bonuses and other compensation paid or payable by the Group Companies during 2019 and 2018, as well as dates of employment and date and amount of last salary increase, of such Personnel has been made available to Buyer. - 31 - (b) There are no complaints, lawsuits, claims (other than ordinary claims under Plans), disputes, actions, grievances or disciplinary actions pending or, to the Knowledge of the Company, threatened, by or between a Group Company and any Personnel, former employee, job applicants or other current or former service providers. (c) The most recent written personnel policies and manuals of the Group Companies are listed in Section 4.17(c) of the Company Disclosure Schedule, and true, accurate, and complete copies of all such written personnel policies and manuals have been made available to Buyer. (d) The employment of all Personnel is terminable at-will, and the Group Companies have not made any written or oral commitment to any employee with respect to such employee’s compensation, promotion, retention, termination, severance or related matters, whether in connection with the Contemplated Transactions or otherwise. To the Knowledge of the Company, no executive officer or management level employees have any plans to terminate his, her or their employment with the Group Companies. Section 4.17(d) of the Company Disclosure Schedule is a true and complete list of all employment Contracts to which a Group Company is a party (the “Company Employment Contracts”), and except as otherwise disclosed in Section 4.17(d) of the Company Disclosure Schedule, no Group Company is a party to any (i) management, employment, consulting or other agreements with any Personnel or other Person providing for employment over a period of time or for termination or severance benefits, whether written or unwritten, and whether or not conditioned upon a change in control of any Group Company, (ii) bonus pay, incentive compensation, deferred compensation, profit-sharing, stock purchase, stock option or similar plans, agreements or arrangements, whether written or unwritten, or (iii) collective bargaining agreements or other agreements with any labor organization or union or other Personnel organization (and no such agreement is currently being requested by, or is under discussion by management with, any Personnel or others). During the last three years there has not been and there is not presently pending, existing, or threatened, any organized strike, slowdown, picketing, or work stoppage by any Personnel. 4.18. Labor Matters. No Group Company is obligated by, or subject to, any order of the National Labor Relations Board or other labor board or administration, or any unfair labor practice decision. No Group Company is a party or subject to any pending or, to the Knowledge of the Company, threatened labor or civil rights dispute, controversy or grievance or any unfair labor practice proceeding with respect to claims of, or obligations of, any employee or group of employees. No Group Company has received any notice that any labor representation request is pending or is threatened with respect to any employees of a Group Company. The Group Companies are in compliance in all material respects with all applicable Laws respecting employment and employment practices, hiring, termination of employment, terms and conditions of employment, wages and hours, employment standards, human rights, discrimination, harassment, occupational safety, workers’ compensation, classification of employees, and plant closings and mass layoffs. The Group Companies are not liable for the payment of any compensation, damages, taxes, fines, penalties or other amounts, however designated, for failure to comply with any employment related laws. The Group Companies have paid in full to all Personnel all wages, salaries, commission, bonuses and other compensation due and payable to such Personnel, including, without limitation, overtime compensation and severance payments, but excluding arrearages in accordance with the Group Companies’ customary payroll practices, and there are no severance payments due or that could become due in the future pursuant to applicable Law, Contract or policy other than payment in lieu of an advance notice of termination of services. All Personnel classified by the Group Companies as independent contractors at any time during the past three (3) years have satisfied the requirements of applicable Law to be so classified, and the Group Companies have fully and accurately reported each such Person’s compensation on IRS Forms 1099 during such period if and when required to do so. All Personnel classified as exempt from overtime pay requirements at any time during the past three (3) years have satisfied the requirements of the federal Fair Labor Standards Act and all analogous and applicable state and local laws to be so classified. - 32 - 4.19. Employee Benefits. (a) Section 4.19(a) of the Company Disclosure Schedule lists all employee benefit plans (as defined in Section 3(3) of ERISA) and all bonus, stock option, stock purchase, phantom stock, stock appreciation rights, other equity-based profit sharing, savings, disability, incentive, deferred compensation, retirement, simplified employee pension, severance, retention, change in control or other employee benefit plans or programs and all employment or compensation agreements, for the benefit of, or relating to, current employees and former employees of the Group Companies or any ERISA Affiliate, or with respect to which the Group Companies could have any Liability (individually, a “Plan,” collectively, the “Plans”), except that Section 4.19(a) of the Company Disclosure Schedule does not list any employment agreement or offer letter providing for at will employment and annual base salary of less than $150,000. (b) With respect to each Plan, the Company has provided to Buyer true and complete copies of: (i) all material Plan documents, (ii) all funding and administrative arrangement documents, including, but not limited to, trust agreements, insurance contracts, custodial agreements, investment manager agreements and service agreements, (iii) the latest favorable determination letter (or as to a prototype or volume submitter plan, opinion letter) received from the Internal Revenue Service regarding the qualification of each Plan covered by Section 401(a) of the Code, (iv) the three most recently filed Forms 5500 for each Plan that is an employee pension benefit plan (as defined in Section 3(2) of ERISA) and for each Plan that is an employee welfare benefit plan (as defined in Section 3(1) of ERISA), (v) each summary plan description and each summary of material modification regarding the terms and provisions thereof, (vi) the most recent actuarial report, if applicable, (vii) any nondiscrimination or other testing under each Plan for the last three years, (viii) the three most recent Forms 1094-C, with attachments, filed for any group health plan and (ix) any material communication with any Governmental Authority, including without limitation correspondence to or from the government in connection with any audit or investigation of or correction filing for any Plan. - 33 - (c) Each Plan (i) is in compliance in all material respects with all applicable governmental Laws, statutes and regulations issued by a Governmental Authority and with any agreement entered into with a union or labor organization and (ii) has been operated in compliance in all materials respects with all applicable Laws and its terms. (d) No current or former employees of the Group Companies or an ERISA Affiliate currently participate or ever have participated in any multiemployer plan, as defined in Section 3(37) of ERISA or a voluntary employees beneficiary association, as defined in Section 501(c)(9) of the Code. No Group Company or ERISA Affiliate has ever had an obligation to contribute to a multiemployer plan, as defined in Section 3(37) of ERISA. (e) Each Group Company and ERISA Affiliate, and each Plan that is a group health plan as defined in Section 733(a)(1) of ERISA, are in compliance with the Patient Protection and Affordable Care Act (“ACA”). No penalties under Section 4980H of the Code and the regulations thereunder are assessable on any Group Company or ERISA Affiliate with respect to any employee. Further, if required by the Code, each Group Company and each ERISA Affiliate has timely filed, or is prepared to timely file by any applicable extended deadline, its IRS Forms 1094-C and Forms 1095-C for each calendar year. (f) No Plan provides retiree medical, dental, vision, disability or life insurance benefits, except as required by the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) or state law. Any Plan designed to satisfy the requirements of Section 125, 401(k), and/or 4980B of the Code satisfies such section in all material respects. (g) Each Plan intended to qualify under Section 401(a) of the Code is so qualified, each trust maintained in conjunction with a Plan intended to qualify under Section 401(a) of the Code is exempt from taxation pursuant to Section 501(a), and none of such Plans or related trusts, or any administrator or trustee thereof, or party-in-interest or disqualified person thereto has engaged in a transaction that could cause any of them or the Group Companies, whether directly or through an indemnification requirement, to be liable for a civil penalty under Section 409 or 502(i) or any other section of ERISA or result in a tax under Section 4975 or 4976 or any other section of Chapter 43 of Subtitle D of the Code. (h) Each Plan that is required to be registered or approved by a Governmental Authority has been registered with, or approved by, and has been maintained in good standing with such Governmental Authority. No Plan is subject to the laws or regulations of any foreign jurisdiction. (i) All payments and contributions, including but not limited to, payments to remediate any nondiscrimination or operational errors, required to be made with respect to any Plan by applicable Law, any Order or any Plan document or other contractual undertaking, and all premiums due or payable with respect to any insurance policy funding any Plan have been timely paid in full or, to the extent not required to be made or paid on or before the date hereof, have been accrued in accordance with normal accounting practices and are fully reflected on the Most Recent Unaudited Financial Statements. - 34 - (j) All amounts required to be reserved under each unfunded Plan have been so reserved in accordance with reasonable accounting practices prevailing in the country where such Plan is maintained, and such reserves are sufficient to satisfy the liability for accrued benefits with respect to current and former employees of the Group Companies participating in each such Plan based on reasonable actuarial or other applicable assumptions and valuations. (k) [intentionally omitted] (l) No Liability under Title IV of ERISA, Section 302 of ERISA or Section 412 of the Code has been or is reasonably expected to be incurred by the Group Companies or ERISA Affiliates. Neither the Group Companies nor any ERISA Affiliate has ever maintained a multiemployer plan or single employer plan within the meaning of Section 4001(a) of ERISA, a multiple employer plan within the meaning of Section 413 of the Code or a pension plan subject to Section 412, 430 or 431 of the Code. (m) The execution of this Agreement or any of the Ancillary Documents, and performance of the Contemplated Transactions, will not (either alone or upon the occurrence of any additional or subsequent events) (i) constitute an event under any Plan or related agreement, trust or loan that will or may result in any payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any current or former Personnel, (ii) result in the triggering or imposition or any restrictions or limitations on the right of the Group Companies to amend or terminate any Plan (or result in any adverse consequence for so doing) or (iii) result in any payment or benefit that will or may be made by the Group Companies that may be characterized as “excess parachute payment,” within the meaning of Section 280G(b)(1) of the Code. The Group Companies do not have any obligation or requirement to indemnify or make any Person whole with respect to taxes under Section 4999 of the Code. (n) There are no pending or, to the Knowledge of the Company, threatened claims, actions, proceedings or litigations by or on behalf of any Plan, any employee or beneficiary covered under any Plan, any Governmental Authority, or otherwise involving any Plan (other than routine claims for benefits). There are no pending or, to the Knowledge of the Company, threatened claims, actions, proceedings or litigation by any current or former employee or applicant for employment against any Group Company. No Plan is under audit or investigation by any Governmental Authority and, to the Knowledge of the Company, no such audit or investigation is threatened. (o) None of the Plans, if administered in accordance with their terms, could result in the imposition of interest or an additional tax on any participant thereunder pursuant to Section 409A of the Code. The Group Companies do not have any obligation or requirement to indemnify or make any Person whole with respect to taxes under Section 409A of the Code. Any Plan that is subject to Section 409A has been administered in accordance with Section 409A. - 35 - 4.20. Tax Matters. (a) The Group Companies have duly and timely filed all Tax Returns required to be filed by them, and all such Tax Returns are true, complete and correct in all respects. The Group Companies have timely paid all Taxes due and owing (whether or not shown due on any Tax Return). No Group Company is currently the beneficiary of any extension of time within which to file any Tax Return, other than automatic extensions of time not requiring the consent of any Governmental Authority. (b) The Group Companies have complied in all respects with all applicable Laws relating to the payment and withholding of Taxes and have, within the time and in the manner prescribed by applicable Laws, withheld and paid over to the proper Governmental Authority all amounts required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, member, stockholder or other third party. (c) No Group Company is, or has ever been, a party to or bound by any Tax Sharing Agreement. There are no Liens on any of the assets of the Group Companies with respect to Taxes, other than Permitted Liens. (d) No Governmental Authority is conducting or proposing or has threatened to conduct an audit or administrative or judicial proceeding with respect to Taxes or any Tax Returns of the Group Companies. No extension or waiver of the statute of limitations with respect to Taxes or any Tax Return has been granted by any Group Company which remains in effect. All Tax deficiencies which have been proposed, asserted or assessed against the Group Companies have been fully paid or finally settled. No Group Company has received a written Group Company does not file Tax Returns that such Group Company is or may be subject to taxation by that jurisdiction. (e) The Group Companies have not received or requested any ruling, closing agreement, transfer pricing agreement or similar agreement from any Governmental Authority with respect to any Tax which will have any effect after the Closing. (f) No Group Company has ever been included in an affiliated group (as defined in Section 1504 of the Code or any similar group defined under a similar provision of state, local, or foreign Law) other than a group the parent of which was the Company. (g) The Group Companies have no liability for the Taxes of any Person (other than other Group Companies) under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee, successor or as a result of similar liability, operation of Law, by Contract (including, without limitation, any Tax Sharing Agreement) or otherwise. (h) The Group Companies have not participated in a listed transaction or a reportable transaction within the meaning of § 1.6011-4 or § 1.6011-4T of the Treasury Regulations. - 36 - (i) No Group Company has agreed, nor is it required, to make any adjustment to taxable income in any period (or portion thereof) ending after the Closing Date by reason of (i) a change in method of accounting for any period (or portion thereof) ending on or before the Closing Date, (ii) “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign income Tax Law) executed on or prior to the Closing Date, (iii) installment sale or open transaction disposition made on or prior to the Closing Date, (iv) prepaid amount or deferred revenue received or accrued on or prior to the Closing Date, (v) use of an improper method of accounting for a taxable period (or portion thereof) ending on or prior to the Closing Date, (vi) intercompany transaction or excess loss account described in the regulations promulgated under Section 1502 of the Code (or any corresponding or similar provision of state, local or foreign income Tax law); or (vii) election under Section 108(i) of the Code. The Group Companies will not be required to include any item of income in taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of Section 965 of the Code. (j) The Company has delivered or otherwise made available to Buyer true, correct and complete copies of all Tax Returns of the Group Companies for all Tax periods beginning on or after January 1, 2015. The Company has delivered or otherwise made available to Buyer true, correct and complete copies of any examination reports received by the Group Companies, and statements of deficiencies assessed against or agreed to by the Group Companies. (k) The Group Companies have not in the past five years, been a “distributing corporation” or a “controlled corporation” in a transaction that qualifies under Section 355 of the Code. (l) At all times since its date of formation, each of the Group Companies have been classified as a C corporation for federal and, where applicable, state and local income Tax purposes. (m) The unpaid Taxes of the Group Companies (A) did not, as of the Most Recent Unaudited Balance Sheet Date, materially exceed the reserve for Tax liability (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the Most Recent Unaudited Balance Sheet (rather than in any notes thereto) and (B) do not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of the Group Companies in filing their Tax Returns. (n) Each Group Company is a “United States person” (within the meaning of Section 7701(a)(30) of the Code). (o) None of the Group Companies has any obligation to make a payment that is not fully deductible under Section 162(m) or Section 280G of the Code or that is under a plan or agreement that is in violation of Section 409A of the Code. (p) None of any Group Company’s losses or other Tax attributes are subject to an existing limitation under Code Section 382 (or any other similar provision of state, local or foreign law). (q) None of the Group Companies has deferred the payment of any Taxes under Section 2302 of the Coronavirus Aid, Relief, and Economic Security Act. - 37 - 4.21. Insurance. The Group Companies maintain general liability, professional liability, product liability, fire, casualty, motor vehicle, workers’ compensation, and other types of insurance shown in Section 4.21 of the Company Disclosure Schedule (the “Insurance Policies”), which insurance is in full force and effect and, to the Knowledge of the Company, comprised of the types and in the amounts of insurance customarily carried by businesses of similar size in the same industry. The Group Companies have not received any written notice of increase in premiums with respect to, or cancellation or non-renewal of, any of the Insurance Policies, except for general increases in rates to which similarly situated companies are subject. The Group Companies have timely filed all claims for which they are seeking payment or other coverage under any of the Insurance Policies. The Group Companies have not made any claim against an Insurance Policy as to which the insurer is denying coverage or defending the claim under a reservation of rights. No Group Company is in default in any material respect under any Insurance Policy. 4.22. Customers and Suppliers. (a) Section 4.22(a) of the Company Disclosure Schedule sets forth a true and complete list of the then (10) largest customers of the Group Companies, determined on a consolidated basis by dollar volume of sales, for the fiscal year ended December 31, 2019 and the fiscal year ended December 31, 2018 (collectively, the “Top Customers”). The Company has no Knowledge of any termination, cancellation or threatened termination or cancellation of or limitation of, or any material modification or change in, or material dissatisfaction with, the business relationship between the applicable Group Company and any of the Top Customers. The Company has no Knowledge that any Top Customer intends to, as a result of the Contemplated Transactions, cease to contract with the Group Companies or substantially reduce its business with the Group Companies. (b) Section 4.22(b) of the Company Disclosure Schedule sets forth a true and complete list of the ten (10) largest suppliers of the Group Companies, determined on a consolidated basis by dollar volume of expenditures, for the (collectively, the “Top Suppliers”). The Company has no Knowledge of any dissatisfaction with the business relationship between the applicable Group Company and any of the Top Suppliers. The Company has no Knowledge that any Top Supplier intends to, as a result of the Contemplated Transactions, cease to contract with or supply to the Group Companies or substantially reduce its business with the Group Companies. 4.23. Accounts Receivable. All accounts receivable reflected on the balance sheet set forth in the Most Recent Unaudited Financial Statements (“Most Recent Unaudited Balance Sheet”) represent, and the accounts receivable arising from the date hereof through the Closing Date will represent, bona fide, current and valid obligations arising from sales actually made or services actually performed in the ordinary course of business. The reserve for doubtful accounts reflected on the Most Recent Unaudited Balance Sheet was established in the ordinary course of business consistent with past practice. The Group Companies have not received written notice from any obligor of any accounts receivable that such obligor is refusing to pay or contesting payment of amounts, other than with respect to returns in the ordinary course of business. - 38 - 4.24. Books and Records. The books and records of the Group Companies have been maintained in accordance with good business practices and all applicable Laws. The minute books of director (including, without limitation, committees thereof) and stockholder meetings of the Group Companies, as previously made available to Buyer, contain accurate records of all such meetings and accurately reflect all other material corporate action of such Stockholders and directors of the Group Companies. 4.25. No Brokers. Neither the Group Companies nor any of their respective directors, officers, employees or agents has employed or incurred any Liability to any broker, finder or agent for any brokerage fees, finder’s fees, commissions or other amounts with respect to this Agreement, the Ancillary Documents or the Contemplated Transactions. 4.26. Disclosure. Except for the representations and warranties made by the Company contained in this Article 4, neither the Company nor any other Person acting on its behalf makes or has made any verbal or written representation or warranty, expressed or implied, relating or with respect to this Agreement or the transactions contemplated hereby to Buyer or any other Person, or as to the accuracy or completeness of any information regarding any Group Company or any Stockholder furnished or made available to the Buyer and its representatives, and no Group Company or Stockholder shall have or be subject to any liability to the Buyer or any other Person resulting from the furnishing to the Buyer, or the Buyer’s use of or reliance on, any such information or any information, documents or material made available to the Buyer in any form in expectation of, or in connection with, the Contemplated Transactions. ARTICLE V Representations and Warranties of Buyer Except as set forth in the Buyer Disclosure Schedule (it being agreed that any matter disclosed in the Buyer Disclosure Schedule with respect to any section of this Agreement shall be deemed to have been disclosed with respect to any other section to which such matter relates so long as the relation of such matter to such other section is readily apparent from the description of such matter), Buyer represents and warrants to the Stockholders as of the date hereof and on and as of the Closing Date as follows: 5.1. Organization and Power. Buyer is duly formed, validly existing and in good standing under the Laws of the jurisdictions in which it was formed. Buyer has full power and authority to execute, deliver and perform this Agreement and the Ancillary Documents to which it is a party and to consummate the Contemplated Transactions. - 39 - 5.2. Authorization and Enforceability. The execution and delivery of this Agreement and the Ancillary Documents to which Buyer is a party and the performance by Buyer of the Contemplated Transactions that are required to be performed by Buyer have been duly authorized by the board of directors of Buyer in accordance with applicable Law and its Articles of Incorporation and Bylaws or other similar organizational documents of Buyer, and no other corporate proceedings on the part of Buyer are necessary to authorize the execution, delivery and performance of this Agreement and the Ancillary Documents to which Buyer is a party or the consummation of the Contemplated Transactions that are required to be performed by Buyer. This Agreement and each of the Ancillary Documents to be executed and delivered at the Closing by Buyer will be, at the Closing, duly authorized, executed and delivered by Buyer and constitutes, or as of the Closing Date will constitute, valid and legally binding agreements of Buyer enforceable against Buyer in 5.3. No Violation. The execution, delivery and performance of this Agreement and the Ancillary Documents by Buyer and the consummation by Buyer of the transactions contemplated hereby and thereby will not (i) result in a violation of the Articles of Incorporation, Bylaws, certificate of formation, memorandum of association, articles of association, bylaws or other organizational documents of Buyer, or any capital stock or other securities of Buyer, (ii) conflict with, or constitute a default under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which Buyer is a party, or (iii) result in a violation of any Law applicable to Buyer or by which any property or asset of Buyer is bound or affected, except as would not reasonably be expected to prevent or materially delay consummation of the Contemplated Transactions or the performance by Buyer of any of its obligations under this Agreement or the Ancillary Documents. 5.4. Governmental Authorizations and Consents. Except as set forth on Section 5.4 of the Buyer Disclosure Schedule, Buyer is not required to obtain any material Governmental Consents in order for it to execute, deliver or perform any of its obligations under or contemplated by this Agreement and the Ancillary Documents, in each case, in accordance with the terms hereof or thereof. 5.5. No Brokers. No agent, broker, Person or firm acting on behalf of Buyer or its Affiliates is, or will be, entitled to any commission or broker’s or finder’s fees from any of the parties hereto, or from any Affiliate of any of the parties hereto, in connection with any of the Contemplated Transactions. - 40 - 5.6. Investment Intent. Buyer is acquiring the Purchased Shares for its own account for investment, without a view to resale or distribution thereof in violation of federal or state securities Laws and with no present intention of distributing or reselling any part thereof. 5.7. No Reliance. Except for the representations and warranties expressly and specifically made by (i) the Group Companies in Article 4 and (ii) each Stockholder in Article 3 of this Agreement, (1) the Buyer acknowledges and agrees that, in making its determination to proceed hereunder, that (a) neither the Group Companies nor any Stockholder is making or has made, and specifically disclaims, any representation or warranty, expressed or implied, at law or in equity, in respect of any Stockholder or any Group Company or its businesses, assets, liabilities, operations, results of operations, prospects, or future or historical condition (financial or otherwise), including, without limitation with respect to merchantability or fitness for any particular purpose of any assets, the nature or extent of any liabilities, the prospects of its business, the effectiveness or the success of any operations, or the accuracy or completeness of any confidential information memoranda, documents, projections, material or other information (financial or otherwise) regarding the Group Companies furnished to Buyer or its representatives or made available to Buyer and its representatives in any “data rooms,” “virtual data rooms,” management presentations or in any other form in expectation of, or in connection with, the Contemplated Transactions, or in respect of any other matter or thing whatsoever, and (b) no officer, agent, representative or employee of any Stockholder or any Group Company has any authority, express or implied, to make any representations, warranties or agreements not specifically set forth in this Agreement and subject to the limited remedies herein provided; (2) Buyer specifically disclaims that it is relying upon or has relied upon any such other representations or warranties that may have been made by any Person, and acknowledges and agrees that each Stockholder and Group Company has specifically disclaimed and do hereby specifically disclaim any such other representation or warranty made by any Person; (3) Buyer specifically disclaims any obligation or duty by any Stockholder or any Group Company to make any disclosures of fact not required to be disclosed pursuant to the specific representations and warranties set forth in Articles III and IV of this Agreement; (4) Buyer is acquiring the Company subject only to the specific representations and warranties set forth in Articles III and IV of this Agreement as further limited by the specifically bargained-for exclusive remedies as set forth in Article 9 hereof; and (5) Buyer has conducted to its satisfaction an independent investigation of the financial condition, operations, assets, liabilities and properties of the Group Companies. ARTICLE VI Covenants 6.1. Conduct of the Company. (a) Except as otherwise expressly contemplated by this Agreement or as consented to in writing by Buyer (such consent not be unreasonably withheld, conditioned, or delayed), during the period from the date hereof to the Closing Date, the Company shall, and shall cause each of the other Group Companies to, conduct its business and operations in the ordinary course, consistent with past practice, and to the extent consistent therewith (i) use commercially reasonable efforts to maintain its assets and properties and to preserve its current relationships with customers, employees, suppliers and others having business dealings with it, (ii) use commercially reasonable efforts to perform and comply with its Material Contracts and to comply with applicable Laws, (iii) maintain its books and records in the usual, regular and ordinary manner, on a basis consistent with past practice, and (iv) use commercially reasonable efforts to preserve the goodwill and ongoing operations of its business. - 41 - (b) Without limiting the generality of the foregoing, except as otherwise expressly contemplated by this Agreement or as consented to in writing by Buyer (such consent shall not be unreasonably withheld, conditioned, or delayed), during the period from the date hereof until the earlier to occur of the Closing Date and the termination of this Agreement, the Company shall not, and shall cause each of the other Group Companies not to: (i) modify or amend any of the organizational documents of the Group Companies; (ii) issue, authorize the issuance of, split, redeem, combine, reclassify, repurchase, or otherwise acquire any Equity Securities of the Group Companies; (iii) declare or pay any non-cash dividend or make any non-cash distribution in respect of any Equity Securities of the Group Companies; (iv) incur or suffer to exist any Indebtedness, except for (A) working capital borrowings incurred in the ordinary course of business consistent with past practice and (B) intercompany loans and balances between various Group Companies; (v) amend, renew (other than in the ordinary course of business), terminate or waive any Material Contract or any provision thereof; (vi) enter into any Contract that purports to limit, curtail or restrict (A) the kinds of businesses in which a Group Company or its existing or future Affiliates may conduct their respective businesses, (B) the Persons with whom it or its existing or future Affiliates can compete or to whom it or its existing or future Affiliates can sell products or deliver services, or (C) the acquisition of any business; (vii) acquire by merging or consolidating with, or by purchasing a substantial equity interest in or substantial portion of the assets of, or by any other means, any corporation, limited liability company, partnership, joint venture, association or other business organization or division thereof; (viii) divest, sell, transfer, lease, license, mortgage, pledge or otherwise dispose of, or encumber any asset of the Group Companies, other than the sales of products or services in the ordinary course of business consistent with past practice; (ix) adopt a plan or agreement of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other material reorganization of a Group Company; - 42 - (x) enter into or adopt any employee benefit plan or employment or severance agreement, or amend or terminate any Plan, except in the ordinary course of business, to the extent required by Law or as expressly contemplated by this Agreement; (xi) increase the amount of any employer discretionary contribution to any Plan; (xii) hire any new officers or terminate the services of any existing officers, make any change in the rate of compensation, commission, bonus, or or otherwise, any bonus, incentive, retention, change in control payment or other compensation, retirement, welfare, fringe or severance benefit or vacation pay, to or in respect of any employee, officer or director of the Group Companies, except (A) in connection with promotions or periodic reviews of employees (but not directors or officers) in the ordinary course of business, or (B) to the extent required by any Plan or applicable Law; (xiii) file or cause to be filed any Tax Return with respect to any Group Company other than in accordance with past practice, amend any Tax Return, enter into any closing agreement, make or change any Tax election, change any Tax method of accounting, or agree to extend the statute of limitations in respect of any Taxes; (xiv) change accounting policies or procedures of a Group Company except to the extent required to conform with GAAP; (xv) change the fiscal year of a Group Company; (xvi) settle or compromise any pending or threatened Litigation in such a manner as to create any material obligations on the Group Companies that would not be fully performed prior to the Closing; (xvii) fail to pay or delay the payment of Taxes, accounts payable, and other Liabilities when due, or fail to pay or perform, or delay the payment or performance of, other material obligations when due, in each case other than in the ordinary course of business and in a manner consistent with past practice; (xviii) cancel or terminate any of the Insurance Policies or permit any of the coverage thereunder to lapse, unless simultaneously with such termination, cancellation or lapse, replacement policies providing coverage equal to or greater than the coverage under such cancelled, terminated or lapsed Insurance Policies are in full force and effect; or (xix) authorize, agree, resolve, or consent to any of the foregoing. (c) Notwithstanding the foregoing, prior to the Closing, the Company shall be permitted on one or more occasions to dividend, distribute, or otherwise pay to the holders of Capital Stock any Cash of the Group Companies in excess of the Required Closing Cash; provided that the Company shall not, and shall cause the other Group Companies not to, dividend, distribute, or otherwise pay or remove any restricted Cash from the Group Companies. - 43 - 6.2. Access to Information. During the period from the date hereof through the earlier to occur of the Closing Date and the termination of this Agreement, the Company shall, and shall cause the other Group Companies to, provide Buyer and its authorized representatives reasonable access during regular business hours to all offices, facilities, books and records of the Group Companies as Buyer may reasonably request; provided, that (a) Buyer and its representatives shall take such action as is deemed necessary in the reasonable judgment of the Company to schedule such access and visits through a designated officer of the Company and in such a way as to avoid disrupting in any material respect the normal business of the Group Companies, (b) the Group Companies shall not be required to take any action which would constitute a waiver of the attorney-client or other privilege and (c) no Group Company will be required to supply Buyer with any information that, in the reasonable judgment of such Group Company after consulting with outside counsel, such Group Company is under a contractual or legal obligation not to supply; provided that the Company shall cause such Group Company to use its commercially reasonable efforts to obtain a waiver of such obligation or otherwise take such action as is needed to enable Buyer to have access to such information. 6.3. Consents and Approvals. Subject to the terms and conditions of this Agreement, each of the Company, the Stockholders’ Representative, and Buyer shall use its commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary or desirable under applicable Law to consummate the Contemplated Transactions, including, without limitation, (a) preparing and filing as promptly as practicable with any Governmental Authority all documentation necessary to effect all filings, notices, petitions, statements, registrations, submissions of information, applications and other documents, (b) obtaining and maintaining all approvals, consents, registrations, permits, authorizations, waivers and other confirmations, in each case, required to be made with or obtained from any Governmental Authority that are necessary, proper or advisable to consummate the Contemplated Transactions (collectively, the “Regulatory Approvals”); provided that neither Buyer nor its Affiliates shall have any obligation to make payments to any third party in connection with obtaining any Regulatory Approvals, (c) obtaining the consents, waivers, approvals, orders and authorizations (the “Third Party Approvals”) under Contracts that are material to the operation of the business of the Group Companies and that require any such consent, waiver, approval, order or authorization in connection with the Contemplated Transactions, and (d) fulfilling all conditions to this Agreement (provided that the foregoing shall in no event be interpreted to require any party to waive any condition precedent to its obligations to close the Contemplated Transactions). Each party shall use its commercially reasonable efforts to furnish to the other parties all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Contemplated Transactions (including, without limitation, Buyer furnishing to the Company all information in the possession of or reasonably obtainable by Buyer that is required in connection with submissions made to the California Department of Insurance in order to satisfy the condition set forth in Section 7.2(e)). - 44 - 6.4. Tax Matters. (a) Buyer shall prepare, or cause to be prepared, and file, or cause to be filed, on a timely basis all Tax Returns of the Group Companies that are due (taking into account permitted extensions that have been granted) after the Closing Date and that reflect any liability for Pre-Closing Taxes. All such Tax Returns (other than those with respect to Straddle Periods) shall be prepared in a manner consistent with past practice of the Group Companies; provided, that Buyer determines, with the advice of counsel or a tax attorney, that there is at least “substantial authority,” within the meaning of Section 6662(d)(2)(B)(i) of the Code, for taking such a position. Buyer shall provide the Stockholders’ Representative with a draft copy of each such Tax Return which is an Income Tax Return at least ten (10) days prior to the filing of such Tax Return (taking into account permitted extensions that have been granted) for its review and comment and, with respect to each such Income Tax Return, shall consider in good faith any reasonable changes requested by the Stockholders’ Representative; provided, that (i) such changes are not inconsistent with prior practice, (ii) Buyer determines, with the advice or counsel of a tax attorney, that there is at least “substantial authority,” within the meaning of Section 6662(d)(2)(B)(i) of the Code, for taking such a position, and (iii) such changes will not have any adverse effect on the Group Companies after the Closing Date. Buyer shall timely pay all Taxes shown due with respect to Tax Returns filed pursuant to this Section 6.4(a). Buyer shall be entitled to be promptly reimbursed by the Stockholders for all Tax liabilities with respect to such Tax Returns that are Pre-Closing Taxes and that were unpaid as of the Closing Date. (b) Buyer and the Stockholders shall cooperate fully, as and to the extent reasonably requested by any party, in connection (x) the filing of Tax Returns pursuant to this Section 6.4, (y) any other Tax Returns required to be filed in connection with the Contemplated Transactions (including, without limitation, required filings under Section 6043 or Section 6043A of the Code or the Treasury Regulations thereunder), and (z) any Tax Contest. Such cooperation shall include the retention and (upon the other party’s request) the provision of records and information which are reasonably relevant to any such Tax Return or Tax Contest and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Buyer and the Stockholders agree (x) to retain all books and records with respect to Tax matters pertinent to the Group Companies relating to any taxable period beginning before the Closing Date until the expiration of the statute of limitations (and, to the extent notified by Buyer or the Stockholders’ Representative, any extensions thereof) of the respective taxable periods, and to abide by all record retention agreements entered into with any Taxing Authority, and (y) to give the other party reasonable written notice prior to transferring, destroying or discarding any such books and records and, if the other party so requests, Buyer or the Stockholders, as the case may be, shall allow the other party to take possession of such books and records. (c) Half of all Transfer Taxes shall be borne by the Stockholders. The Stockholders’ Representative shall timely prepare all necessary Tax Returns with respect to all such Transfer Taxes and shall provide a draft copy of such Tax Returns and other documentation to Buyer at least ten (10) days prior to the due date for such Tax Returns for its review and comment and shall incorporate all comments made by Buyer. The Stockholders’ Representative shall timely file or cause to be filed all such Tax Returns and timely remit any Taxes shown as due thereon, and Buyer shall reasonably cooperate with the Stockholders’ Representative as may be necessary to effectuate such filings. - 45 - (d) All Tax Sharing Agreements with respect to or involving a Group Company shall have been terminated no later than the Closing Date and, after the Closing Date, no Group Company shall be bound thereby or have any liability thereunder. The Stockholders and the Group Companies shall take all actions necessary to terminate such Contracts. (e) Without the written consent of Stockholders’ Representative, the Buyer shall not (i) make any election pursuant to Section 336 or 338 of the Code, (ii) file (other than in accordance with Section 6.4(a)) any Tax Return for any Pre-Closing Tax Period, amend any Tax Return for any Pre-Closing Tax Period, or approach any Taxing Authority regarding Pre-Closing Taxes, in each case, if such action would increase the liability of the Stockholders for Pre-Closing Taxes (each a “Prohibited Tax Action”). (f) Straddle Period. To the extent it is necessary for purposes of this Agreement to allocate or apportion Taxes in respect of a Straddle Period, the amount of Taxes payable by or with respect to ‎the Group Companies in respect of the portion of the Straddle Period shall be apportioned between ‎the portion of the Straddle Period that begins on or before the Closing Date and ends on the Closing ‎Date (the “Pre-Closing Straddle Period”) and the portion of such Straddle Period that begins after ‎the Closing Date (the “Post-Closing Straddle Period”) as follows: (i) any property or ad valorem ‎Taxes shall be allocated between the Pre-Closing Straddle Period and the Post-Closing Straddle Tax ‎Period on a per diem basis, and (ii) in respect to all other Taxes (including, without limitation, income Taxes, and all ‎sales, use, value added, goods and service and other similar Taxes, and all employment, payroll, ‎withholding, and other similar Taxes) as if the Straddle Period ended on (and included) the Closing ‎Date, with such Taxes attributable to the Pre-Closing Straddle Period and the Post-Closing Straddle ‎Tax Period determined based on an interim closing of the books of the relevant Target Company as of the ‎end of the Closing Date, provided that exemptions, allowances or deductions that are calculated on ‎an annual basis (or on a monthly basis, where required) shall be allocated between the Pre-Closing Straddle Period and the Post-Closing ‎Straddle Period in proportion to the number of days in each period‎. 6.5. Confidentiality. (a) Buyer acknowledges and agrees that the Non-Disclosure Agreement, dated June 22, 2020 (the “NDA”), between Buyer and the Company, shall remain in full force and effect until the Closing and that any books and records, data and other information provided to Buyer between the date hereof and the Closing shall be considered Confidential Material (as such term is defined in the NDA) and afforded all protections provided therein. - 46 - (b) Following the Closing, each Stockholder shall not, and shall cause its Affiliates and its and their respective Representatives not to, directly or indirectly, for a period of two (2) years after the Closing Date, without the prior written consent of Buyer, disclose to any third party any information, whether written or oral, related to the Group Companies or their respective businesses; provided, that the foregoing restriction shall not (i) apply to any information (A) generally available to, or known by, the public (other than through fault of the Stockholders or any of the Stockholders’ Affiliates or its and their respective Representatives) or (B) lawfully acquired by such Stockholder after Closing from sources not prohibited from disclosing such information by a legal, contractual or fiduciary obligation, or (ii) prohibit any disclosure (A) required by Law, (B) made in connection with the enforcement of any right or remedy relating to this Agreement, the other Ancillary Documents or the Contemplated Transactions, (C) if such Stockholder is an employee of the Group Companies following the Closing, by such Stockholder to the extent necessary to fulfill such Stockholder’s duties as such an employee, or (D) if such Stockholder is a limited liability company or limited partnership, by such Stockholder to its members or limited partners to the extent such disclosure is included in non-public communications to such members or limited partners and such members or limited partners are contractually bound to maintain the confidentiality of such information pursuant to their investment agreements. If a Stockholder or any of its Affiliates or its and their respective Representatives are compelled to disclose any information by judicial or administrative process or by other requirements of Law, such Stockholder promptly will notify Buyer in writing, cooperate with Buyer and the Group Companies in their efforts to obtain an appropriate protective order or other reasonable assurance that confidential treatment will be accorded such information, and disclose only that portion of such information such Stockholder is advised by counsel is legally required to be disclosed. 6.6. Indebtedness; Transaction Expenses. The Company shall, and shall cause the other Group Companies to, pay, satisfy, and discharge prior to or at the Closing from the Cash balances of the Group Companies (i) any and all Indebtedness of the Group Companies so that immediately after the Closing none of the Group Companies shall have any liability or responsibility with regard to any such Indebtedness, and (ii) any and all Transaction Expenses owed to Persons by the Group Companies so that liability or responsibility with regard to such Transaction Expenses. 6.7. Exclusivity. From the date hereof until the earlier to occur of the Closing Date and the termination of this Agreement, neither the Company, the Stockholders nor the Stockholders’ Representative shall solicit, encourage, or facilitate (including, without limitation, by way of providing information regarding the Group Companies or their businesses to any Person or providing access to any Person) any inquiries, discussions or proposals regarding, continue or enter into discussions or negotiations with respect to, or enter into or consummate any agreement or understanding in connection with any proposal regarding, any purchase or other acquisition of all or any portion of the assets or properties of Group Companies (other than the sale of products or services in the ordinary course of business consistent with past practices) or any Equity Securities of any Group Company, any merger, business combination or recapitalization involving a Group Company, the liquidation, dissolution or reorganization of a Group Company, or any similar transaction, and the Company shall cause the other Group Companies and its and their respective Representatives to refrain from any of the foregoing. The Stockholders’ Representative shall promptly notify Buyer if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, any of the Stockholders’ Representative, the Group Companies, the Stockholders or their respective Representatives. - 47 - 6.8. Public Announcements. The timing and content of all press releases or public announcements regarding any aspect of this Agreement, any Ancillary Document, or the Contemplated Transaction to the financial community, government agencies or the general public shall be mutually agreed upon in advance by Buyer and the Stockholders’ Representative. Notwithstanding the foregoing, each such party may make any such announcement which it in good faith believes, based on advice of counsel, is required by Law or any listing agreement with any national securities exchange to which such party is subject; provided, that such party shall consult with the other party prior to any such announcement to the extent practicable, and shall in any event promptly provide the other party with copies of any such announcement. 6.9. Notice of Developments. From and after the Closing Date, the Stockholders’ Representative shall promptly notify Buyer of (a) any notice or other communication from any Person challenging the Contemplated Transactions, (b) any notice or other oral or written communication from any Governmental Authority in connection with or relating to the Contemplated Transactions, and (c) any Event that constitutes, or would reasonably be expected to constitute as of the Closing Date, a breach or violation of any representation, warranty, covenant or agreement of the Company or a Stockholder under this Agreement; provided that no disclosure by the Stockholders’ Representative pursuant to this Section 6.9, or any other communication from the Stockholders’ Representative after the date hereof, shall be deemed (i) to amend or supplement the Company Disclosure Schedule or exhibits attached hereto or the representations and warranties contained in this Agreement, (ii) to prevent or cure any misrepresentation or breach of warranty, (iii) to affect in any way the indemnification provided under Section 9.2(a), or (iv) to otherwise prejudice any right or remedies of the Buyer Indemnitees. 6.10. Termination of Affiliated Loans. The Company shall cause all Affiliated Loans to be repaid, satisfied, discharged, and terminated at or prior to the Closing (including, without limitation, as necessary, offsetting amounts owed to the Group Companies against amounts to be paid to a Stockholder pursuant to this Agreement). 6.11. Releases. (a) Effective as of the Closing, each Stockholder (on behalf of itself and each of its Affiliates, agents, trustees, beneficiaries, estate, heirs, successors and assigns (other than the Group Companies)) (each a “Releasor”) hereby: (a) represents and warrants that the Releasors have no Claims, other than Excluded Claims, against the Group Companies, Buyer, or any of their respective Affiliates, partners, stockholders, representatives, predecessors, successors, related entities or assigns in their respective capacities as such (collectively, the “Releasees”), with respect to the Group Companies or their respective businesses; (b) irrevocably and unconditionally releases the Releasees from any and all charges, complaints, claims, liabilities, obligations, promises, agreements, controversies, damages or causes of action, choses in action, suits, rights, demands, costs, Losses, debts and expenses (including, without limitation, all attorneys’ fees and costs incurred) of any kind or nature whatsoever, known or unknown, suspected or unsuspected, existing or prospective, relating to the Group Companies, their respective businesses, or the Contemplated Transactions (collectively, “Claims”); provided, that the foregoing release does not include Claims arising from or related to any rights of such Releasor (i) under this Agreement or any other Ancillary Document to which such Releasor is a party, (ii) if Releasor is an employee of a Group Company, to any employment compensation, benefits or expense reimbursements accrued in the normal course for employment services rendered that are due and owing to Releasor but unpaid as of the Closing, (iii) any Claims by an officer or director for indemnification for being an officer or director of the Company or (iv) with respect to claims that cannot be released as a matter of law (collectively, “Excluded Claims”); provided further, that such Releasor expressly acknowledges that the release contained in this Section 6.11(a) applies to all Claims as defined above, whether such Claims are known or unknown, and includes Claims which if known by the releasing party might materially affect its decision to grant the release contained in this paragraph, and that such Releasor has considered and taken into account the possible existence of such Claims in determining to execute and deliver this Agreement, and Releasor expressly waives any rights or benefits under §1542 of the California Civil Code, or comparable laws as may apply, which provides: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor”; (c) irrevocably and unconditionally covenants and agrees not to assert any suit, demand, litigation, lawsuit, action or claim against any Releasee regarding any Claim released under this Section 6.11(a); and (d) represents, warrants, covenants and agrees that no Claim or possible Claim against any Releasee has been or will be assigned or transferred, and agrees to indemnify and hold the Releasees harmless from any liability or damages arising as a result of any such assignment or transfer. - 48 - (b) Effective as of the Closing, Buyer (on behalf of itself and each of its Affiliates, agents, trustees, beneficiaries, estate, heirs, successors and assigns (other than the Group Companies)) (each a “Buyer Releasor”) hereby: (a) represents and warrants that the Buyer Releasors have no Claims, other than the Claims set forth in clauses (i)-(iii) below, against the Stockholders or any of their respective Affiliates, partners, stockholders, representatives, predecessors, successors, related entities or assigns in their respective capacities as such (collectively, the “Buyer Releasees”), with respect to the Group Companies or their respective businesses; (b) irrevocably and unconditionally releases the Buyer Releasees from any and all Claims; provided, that the foregoing release does not include Claims arising from or related to any rights of such Buyer Releasor (i) under this Agreement or any other Ancillary Document to which such Buyer Releasor is a party, (ii) if a Buyer Releasee is an employee of a Group Company, to any Claims solely to the extent arising from employment of such Buyer Releasee with Buyer, or (iii) with respect to claims that cannot be released as a matter of law; provided further, that such Buyer Releasor expressly acknowledges that the release contained in this Section 6.11(b) applies to all Claims as defined above, whether such Claims are paragraph, and that such Buyer Releasor has considered and taken into account the possible existence of such Claims in determining to execute and deliver this Agreement, and Buyer Releasor expressly waives any rights or benefits under §1542 of the California Civil Code, or comparable laws as may apply, which provides: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor”; (c) irrevocably and unconditionally covenants and agrees not to assert any suit, demand, litigation, lawsuit, action or claim against any Buyer Releasee regarding any Claim released under this Section 6.11(b); and (d) represents, warrants, covenants and agrees that no Claim or possible Claim against any Buyer Releasee has been or will be assigned or transferred, and agrees to indemnify and hold the Buyer Releasees harmless from any liability or damages arising as a result of any such assignment or transfer. - 49 - 6.12. Non-Competition and Non-Solicitation. (a) Each of Davison, L. Splane, Sarumaru, English, Montag, T. Splane, and Hall, for and on behalf of himself or herself and each of his or her Affiliates, covenants and agrees not to, for a period of two (2) years after the Closing Date, engage in any activity which is competitive with the businesses of the Group Companies, directly or indirectly, as a shareholder, member, partner, owner, joint venture, investor, lender or in any other capacity whatsoever (other than as an employee or service provider of a Group Company, Buyer or an Affiliate of Buyer). Notwithstanding the foregoing, each such Stockholder may own, directly or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if such Stockholder is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly, own 2% or more of any class of securities of such Person. (b) Each Stockholder, for and on behalf of himself, herself, or itself and each of his, her, or its Affiliates, hereby covenants and agrees not to, for a period of two (2) years after the Closing Date, (i) directly or indirectly solicit or knowingly induce, or attempt to induce, for employment by such Stockholder or any Affiliate of such Stockholder, any Person who is an employee of a Group Company, or (ii) solicit, knowingly induce, or attempt to induce any customer of any Group Company or its business, or any customer, client, consultant, independent contractor, vendor, supplier, or partner of any Group Company or its business, to terminate, diminish, or materially alter in a manner harmful to Buyer, any of Buyer’s Affiliates or any Group Company, its relationship or their relationships with Buyer, any of Buyer’s Affiliates, or any Group Company (including, without limitation, by making any negative or disparaging statements or communications regarding Buyer, its Affiliates, or the Group Companies); provided that the foregoing restrictions shall not apply to general solicitations that are not specifically directed to customers, clients, consultants, independent contractors, vendors, suppliers or partners of Buyer, the Group Companies or their Affiliates; provided further, that such Stockholder and each of his, her, or its Affiliates shall not be prevented from soliciting or inducing (x) any employee whose employment has been terminated by a Group Company, and who is not employed by Buyer or any of its Affiliates, prior to any solicitation, inducement or attempted inducement by such Stockholder or (y) after 180 days from the date of termination of employment, any employee whose employment was voluntarily terminated by the employee. (c) Each Stockholder hereby acknowledges and confirms that (i) the provisions of this Section 6.12 are reasonable and necessary to protect the interests of Buyer and the Group Companies, (ii) any violation of this Section 6.12 will result in an immediate, irreparable injury to Buyer and the Group Companies, (iii) damages at law would not be reasonable or adequate compensation to Buyer and the Group Companies for violation of this Section 6.12, and (iv) in addition to any other available remedies, Buyer and the Group Companies shall be entitled to have the provisions of this Section 6.12 specifically enforced by preliminary and permanent injunctive relief without the necessity of proving actual damages or posting a bond or other security. In the event that the provisions of this Section 6.12 shall ever be deemed to exceed the time, geographic scope or other limitations permitted by applicable Law, then the provisions shall be deemed reformed to the maximum extent permitted by applicable Law. - 50 - 6.13. Financing. Buyer shall use its reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, all things necessary or advisable to obtain cash financing in an amount that is sufficient to pay all amounts required to be paid by Buyer pursuant to this Agreement or any Ancillary Documents and to carry out and complete the Contemplated Transactions. The Company, the Stockholders and the Stockholders’ Representative shall each use their respective commercially reasonable efforts to provide such cooperation in connection with the arrangement of such financing as is reasonably requested by Buyer; provided that nothing in this Agreement shall obligate any Stockholder or any Affiliate of any Stockholder to provide any financing to the Buyer. Buyer shall consult with and keep the Stockholders’ Representative informed in reasonable detail of the status of its efforts to arrange such financing. 6.14. Disclosure Schedules. The parties hereto acknowledge that, in the interest of time, this Agreement has been executed and delivered by such parties on the date hereof prior to completion of the Company Disclosure Schedule and the Stockholder Disclosure Schedule. Following the date hereof, the parties hereto shall negotiate in good faith and use best efforts to mutually agree upon a final version of the Company Disclosure Schedule and the Stockholder Disclosure Schedule as promptly as practicable, and in any event within the fifteen (15)-day period immediately following the date hereof. Upon reaching mutual agreement on the Company Disclosure Schedule and the Stockholder Disclosure Schedule, such schedules shall be attached to this Agreement and treated for all purposes hereunder as if such schedules had been attached to this Agreement and delivered on the date hereof. For the avoidance of doubt, neither the Company nor any Stockholder shall be deemed to be in breach of its representations and warranties set forth herein from the date hereof until mutual agreement is reached on the Company Disclosure Schedule and the Stockholder Disclosure Schedule. In the event that the parties hereto are unable to agree upon the Company Disclosure Schedule and the Stockholder Disclosure Schedule prior to the expiration of such fifteen (15)-day period, Buyer shall have the right, exercisable in its sole discretion by providing written notice to the Stockholders’ Representative at any time prior to reaching mutual agreement on the Company Disclosure Schedule and the Stockholder Disclosure Schedule, to terminate this Agreement. 6.15. D&O Insurance. For six (6) years after the Closing Date, Buyer shall maintain in effect the current level and scope of directors’ and officers’ liability insurance or a tail insurance policy of the same level or scope, in each case covering those persons who are covered by the Company’s directors’ and officers’ liability insurance policy as of the date hereof; provided that in no event shall Buyer be required to expend in any one year an amount in excess of 100% of the annual premium currently paid by the Company for such insurance, and if the annual premiums of such insurance coverage exceed such amount Buyer shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount. - 51 - ARTICLE VII Conditions to Closing 7.1. Conditions to the Obligations of the Stockholders and the Company. The obligations of the Stockholders and the Company to consummate the Contemplated Transactions are subject to the fulfillment at or prior to the Closing of each of the following conditions (any or all of which may be waived in whole or in part by the Stockholders’ Representative and the Company): (a) Representations and Warranties. (i) The Surviving Representations of Buyer shall be true and correct in all respects as of the date when made and as of the Closing Date, except for those Surviving Representations made as of a specified date, which shall be measured only as of such specified date, and (ii) the representations and warranties of Buyer in this Agreement (other than the Surviving Representations of Buyer) and in the Ancillary Documents shall be true and correct (without giving effect to any “materiality” or “Material Adverse Effect” qualifications) in all material respects as of the date when made and as of the Closing Date, except for such representations and warranties made as of a specified date, which shall be measured only as of such specified date. (b) Performance. Buyer shall have performed and complied in all material respects with all agreements and covenants required by this Agreement and the Ancillary Documents to be so performed or complied with by Buyer at or prior to the Closing. (c) Deliveries. The Stockholders’ Representative shall have received the deliveries contemplated by Section 8.2. (d) No Injunction. No Governmental Authority or federal or state court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, judgment, injunction or other order or notice (whether temporary, preliminary or permanent), in any case which is in effect and which prevents or prohibits consummation of the Contemplated Transactions. (e) Use of Proceeds. In the event that investment proceeds received or to be received by Buyer from YA II PN, Ltd. will be used for the payment of all or any portion of the Consideration to the Stockholders, YA II PN, Ltd. shall have received the consent of its investors to the Buyer so using such investment proceeds for such payment. (f) Employment Agreements. With respect to each of Davison, L. Splane, Sarumaru, English, Montag, T. Splane, and Hall, Buyer and such individual shall have executed and delivered an amendment to such individual’s employment agreement that extends the term of such agreement to December 31, 2022. 7.2. Conditions to the Obligations of Buyer. The obligations of Buyer to consummate the Contemplated Transactions are subject to the fulfillment at or prior to the Closing of each of the following conditions (any or all of which may be waived in whole or in part by Buyer): - 52 - of the Stockholders and the Company shall be true and correct in all respects as of the date when made and as of the Closing Date, except for those Surviving Representations made as of a specified date, which shall be measured only as of such specified date, and (ii) the representations and warranties of the Stockholders and the Company in this Agreement (other than the Surviving Representations of the Stockholders and the Company) and in the Ancillary Documents shall be true and correct (without giving effect to any “materiality” or “Material Adverse Effect” qualifications) in all material respects as of the date when made and as of the Closing Date, except for such representations and warranties made as of a specified date, which shall be measured only as of such specified date. (b) Performance. The Company and the Stockholders shall have performed and complied in all material respects with all agreements and covenants required by this Agreement to be so performed or complied with by the Company and the Stockholders at or prior to the Closing. (c) Deliveries. Buyer shall have received the deliveries contemplated by Section 8.1. (d) No Material Adverse Effect. Since the date hereof, there shall have been no Event that has had, or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on the Group Companies. (e) California DOI Approval. The Company shall have obtained and/or completed, as applicable, either (i) all notification procedures, applications, and approvals from the California Department of Insurance as are required to consummate the Contemplated Transactions or (ii) an acknowledgment from the California Department of Insurance that no such formal notification procedure, separate application, or formal approval is required to consummate the Contemplated Transactions. (f) Regulatory Approvals. All of the Regulatory Approvals set forth in Section 7.2(f) of the Company Disclosure Schedule shall have been obtained or made at or prior to the Closing, in each case in form and substance reasonably satisfactory to Buyer. (g) Third Party Approvals. All of the Third Party Approvals set forth in Section 7.2(g) of the Company Disclosure Schedule shall have been obtained or satisfactory to Buyer. (h) Indebtedness. None of the Group Companies shall have any Indebtedness. (i) Transaction Expenses. There shall be no accrued but unpaid Transaction Expenses. (j) Cash. Estimated Closing Cash as set forth in the Closing Date Statement shall be no less than $5,000,000 (the “Required Closing Cash”). (k) Current Liabilities. Estimated Closing Current Liabilities as set forth in the Closing Date Statement shall be no greater than $5,000,000. - 53 - (l) No Injunction. No Governmental Authority or federal or state court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, judgment, injunction or other order or notice (whether temporary, preliminary or (m) Financial Capacity. Buyer shall have obtained and be in possession of cash in an amount that is sufficient to pay all amounts required to be paid by Buyer pursuant to this Agreement or any Ancillary Documents and to carry out and complete the Contemplated Transactions. ARTICLE VIII Deliveries at Closing 8.1. Deliveries by the Company and the Stockholders at Closing. On the Closing Date, the Company and the Stockholders shall deliver or cause to be delivered to Buyer: (a) Written resignations, dated as of the Closing Date, of each of the directors of each of the Group Companies appointed at the sole direction of the Stockholders. (b) Documentation evidencing the repayment or satisfaction in full, and discharge and termination, of all Indebtedness, including, without limitation, payoff letters, UCC termination statements and documentation evidencing the release of Liens relating thereto, as applicable, in form and substance reasonably satisfactory to Buyer. (c) An affidavit issued pursuant to and in compliance with Section 1445 of the Code (and the Treasury Regulations thereunder) and dated as of the Closing Date, in a form reasonably satisfactory to Buyer, certifying that the Company is not, and has not been, a “United States real property holding corporation” as defined in Section 897(c)(2) of the Code during the applicable period described in Section 897(c)(1)(A)(ii) of the Code, in compliance with Treasury Regulations Sections 1.897-2(h) and 1.1445-2(c)(3). (d) An officer’s certificate signed by the chief executive officer of the Company and the Stockholders’ Representative to the effect set forth in Section 7.2(a), 7.2(b), 7.2(d), 7.2(h), 7.2(i), 7.2(j), and 7.2(k). (e) A certificate, signed by the secretary of the Company and dated as of the Closing Date, certifying that (a) attached thereto is a true, correct and complete copy of the certificate of incorporation and bylaws of each Group Company as in effect on the date of such certification, and (b) attached thereto is a true, correct and complete copy of the resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Ancillary Documents to which the Company is a party, and that such resolutions are in full force and effect. - 54 - (f) Certificates of the Secretary of State of the applicable states of incorporation, which certificates shall be of a reasonably recent date, as to the due incorporation and good standing (or equivalent) of each Group Company. (g) Certificates representing all of the Purchased Shares, endorsed in blank or accompanied by duly executed stock powers, free and clear of all Liens. (h) If requested by Buyer with reasonable advance notice, an amendment to the Adoption and Election Agreement between the Company and TriNet or other evidence reflecting changes to the employer-level elections made by the Company thereunder, in form and substance reasonably satisfactory to Buyer, duly executed by the Company and TriNet. (i) An escrow agreement, in form and substance reasonably satisfactory to Buyer and the Stockholders’ Representative (the “Escrow Agreement”), duly executed by each of the Stockholders’ Representative and the Escrow Agent. (j) A right of first refusal agreement, in such form as may be mutually agreed between Buyer and Mark Angelo (the “ROFR Agreement”), duly executed by Mark Angelo. (k) Such documents of further assurance reasonably necessary and typical for transactions similar to the Contemplated Transactions in order to complete the Contemplated Transactions. 8.2. Deliveries by Buyer at Closing. On the Closing Date, Buyer shall deliver or cause to be delivered to the Stockholders’ Representative: (a) An officer’s certificate signed by the chief executive officer of Buyer to the effect set forth in Section 7.1(a) and 7.1(b). (b) A certificate, signed by the secretary of Buyer and dated as of complete copy of the certificate of incorporation and bylaws of Buyer as in effect on the date of such certification, and (b) attached thereto is a true, correct and complete copy of the resolutions adopted by the board of directors of Buyer authorizing the execution, delivery and performance of this Agreement and the Ancillary Documents to which Buyer is a party, and that such resolutions are in full force and effect. (c) Certificate of the Secretary of State of Nevada, which certificates shall be of a reasonably recent date, as to the due incorporation and good standing of Buyer. (d) The ROFR Agreement, duly executed by Buyer. (e) Such documents of further assurance reasonably necessary and - 55 - ARTICLE IX Indemnification; Survival 9.1. Expiration of Representations and Warranties. All of the representations and warranties of the parties set forth in this Agreement shall terminate and expire, and shall cease to be of any force or effect, at 5:00 P.M. (Eastern time) on the date that is the twelve (12)-month anniversary of the Closing Date (the “Expiration Date”), and all liability with respect to such representations and warranties shall thereupon be extinguished; provided, that the representations and warranties of (a) each Stockholder in Section 3.1 (Organization and Power), Section 3.2 (Authorization and Enforceability), and Section 3.3 (Purchased Shares), (b) the Company set forth in Section 4.20 (Tax Matters), Section 4.1 (Organization and Power), Section 4.2 (Authorization and Enforceability), Section 4.3 (Capitalization), and Section 4.25 (No Brokers) and (c) Buyer set forth in Section 5.1 (Organization and Power), Section 5.2 (Authorization and Enforceability), and Section 5.5 (No Brokers), shall continue in full force and effect until thirty (30) days after all applicable statutes of limitations, including, without limitation, waivers and extensions, have expired with respect to the matters addressed therein (the representations and warranties referred to in clauses (a) - (c) are collectively referred to as the “Surviving Representations”). All of the covenants contained in this Agreement that by their nature are required to be performed after the Closing shall survive the Closing. Notwithstanding the foregoing, in the event a valid claim for indemnification has been asserted in good faith in accordance with Section 9.2(d) and such claim remains unresolved as of the expiration of the applicable survival period as set forth in this Section 9.1, then the covenant, agreement, representation or warranty (as applicable) that is the subject of such claim shall survive solely with respect to such claim until such claim is finally resolved. 9.2. Indemnification. (a) By a Stockholder. Subject to the provisions of Section 9.1 relating to the survival of representations and warranties, from and after the Closing, each Stockholder (an “Indemnifying Stockholder”) shall severally and not jointly (pro rata based on the Purchased Shares being sold by the Stockholders hereunder) indemnify, defend and hold harmless Buyer, its Affiliates, officers, directors, employees, stockholders, members, partners, agents, representatives, permitted successors and permitted assigns (collectively, “Buyer Indemnitees”) from and against all claims, losses, Liabilities, damages, deficiencies, interest and penalties, costs and expenses, including, without limitation, losses resulting from the defense, settlement and/or compromise of a claim and/or demand and/or assessment, reasonable attorneys’, accountants’ and expert witnesses’ fees, costs and expenses of investigation, and the costs and expenses of enforcing the indemnification provided hereunder (hereafter individually a “Loss” and collectively “Losses”) incurred by any Buyer Indemnitees arising out of or relating to: (i) any breach of any representation or warranty made by (A) the Company in Article IV or any Ancillary Document or (B) made by a Stockholder against whom indemnification is being sought in Article III in this Agreement or any Ancillary Document (for purposes of this clause (i) and solely for the purpose of determining the amount of Losses incurred by the Buyer Indemnitees (and not for purposes of determining whether a breach has occurred), determined without regard to any qualifications as to materiality or material adverse effect (or any correlative terms), other than with respect to the first sentence of Section 4.7 and where “material” is used for the purpose of listing and referring to Material Contracts); (ii) any breach of any covenant or agreement (A) of the Stockholders’ Representative, or of the Group Companies to the extent required to be performed or complied with by the Group Companies prior to the Closing, contained in this Agreement or any Ancillary Document, or (B) of the Stockholders contained in this Agreement or any Ancillary Document; (iii) any Transaction Expenses or Indebtedness of the Group Companies to the extent not paid, satisfied, and discharged prior to the Closing; (iv) any Pre-Closing Taxes not reimbursed by the Stockholders pursuant to Section 6.4(a) or arising from a Prohibited Tax Action to which the Stockholders’ Representative has not given written consent; (v) any claim by any Person with respect to acts, actions or activities of the Group Companies or their respective officers or directors prior to the Closing in connection with the Contemplated Transactions; and/or (vi) any amount payable in connection with any claim of the Stockholder against whom indemnification is being sought involving or related to his, her or its rights or status as a holder or former holder of any Capital Stock or other Equity Securities or ownership rights in the Group Companies during the period prior to the Closing. - 56 - (b) By Buyer. Subject to the provisions of Section 9.1 relating to the survival of representations and warranties, from and after the Closing, Buyer shall indemnify, defend and hold harmless the Stockholders and their respective Affiliates, trustees, beneficiaries, estates, heirs, spouses, other family members, officers, directors, employees, stockholders, members, partners, (collectively, “Stockholder Indemnitees”) from and against all Losses incurred by any Stockholder Indemnitees arising out of or relating to: (i) any breach of any representation or warranty made by Buyer in Article V or any Ancillary Document (for purposes of this clause (i) and solely for the purpose of determining the amount of Losses incurred by the Stockholder Indemnitees (and not for purposes of determining whether a breach has occurred), determined without regard to any qualifications as to materiality or material adverse effect (or any correlative terms)), (ii) any breach of any covenant or agreement of Buyer, or of the Group Companies to the extent required to be performed or complied with by the Group Companies after the Closing, contained in this Agreement or any Ancillary Document. (c) Limitations on Rights of Indemnitees. Notwithstanding anything herein to the contrary: (i) neither Buyer nor any Stockholder, as applicable, shall be required to indemnify an Indemnitee with respect to any claim for indemnification arising out of or relating to matters described in Section 9.2(a)(i) or Section 9.2(b)(i), as applicable, unless and until the aggregate amount of all such claims for such matters exceeds an amount equal to $200,000, in which event the Indemnitee shall be entitled to recover Losses only in excess thereof; provided, that the foregoing limitation shall not apply to a claim for indemnification to the extent such claim is based upon Fraud or a breach of any of the Surviving Representations; (ii) in no event shall (1) the aggregate Liability of any Stockholder arising out of or relating to Section 9.2(a)(i) exceed the Stockholder’s Share of the Escrow Amount (which, with respect to each Stockholder, shall be deemed to be the product of (i) 10.0%, multiplied by the (ii) Consideration, multiplied by (iii) such Stockholder’s Share (with respect to each Stockholder, the “Stockholder’s Liability Cap”)); provided, however, that (A) the Stockholder’s Liability Cap for a claim for breach of any of the Surviving Representations of the Company or a Stockholder shall be increased to an amount inclusive of the Stockholder’s Liability Cap not to exceed the product of (x) fifty percent (50%) of the Consideration, multiplied by (y) such Stockholder’s Share, and (B) the Stockholder’s Liability Cap for a claim for indemnification for Losses for Fraud against a Stockholder shall be increased to an amount inclusive of the Stockholder’s Liability Cap not to exceed the product of (x) Consideration, multiplied by (y) such Stockholder’s Share. - 57 - (iii) to the extent required by applicable Law, each Indemnitee shall use commercially reasonable efforts to mitigate any Losses arising out of or relating to this Agreement or the Contemplated Transactions upon becoming aware of any Event that would be reasonably expected to give rise to Losses; (iv) the amount of any Losses for which an Indemnitee claims indemnification under this Agreement shall be reduced by the amount of any insurance proceeds and any indemnification, contribution, offset or reimbursement payments actually received from a third party with respect to such Losses (net of (x) documented out-of-pocket expenses incurred in connection with such recovery, (y) deductibles, premiums and retentions paid pursuant to the insurance policies under which such recovery is made to the extent arising out of or in connection with such claims and (z) the net present value of any increase in premiums paid and retentions for such policies to the extent arising out of or in connection with such claim); provided that if an Indemnitee actually receives insurance proceeds or indemnification, contribution, offset or reimbursement payments from third party insurers with respect to such Losses, in each case, at any time subsequent to any indemnification payment pursuant to this Article IX, then such Indemnitee shall promptly reimburse the applicable Indemnitor for the lesser of (A) the amount of such proceeds and/or payments actually received by such Indemnitee in respect of such Losses (net of (x) documented out-of-pocket expenses incurred in connection with such recovery, (y) deductibles, premiums and retentions paid pursuant to the insurance policies under which such recovery is made to the extent arising out of or in connection with such claims, and (z) the net present value of any increase in premiums paid and retentions for such policies to the extent arising out of or in connection with such claim) and (B) the aggregate amount of the payment made by such Indemnitor in respect of such Losses; provided further that, with respect to any Losses incurred by the Group Companies, all such amounts, proceeds, and payments which are the subject of this Section 9.2(c)(iv) shall be calculated in accordance with the proportionality principle set forth in Section 9.2(c)(v); (v) [reserved]; (vi) any indemnification provided hereunder shall be so applied as to avoid any double counting and no Indemnitee shall be entitled to obtain indemnification more than once for the same matter or Losses; (vii) notwithstanding anything to the contrary herein, claims for breach of Sections 9.2(a)(i)(B), 9.2(a)(ii)(B), or 9.2(a)(vi) shall only be made against that Stockholder who has breached or failed to perform and no other Stockholder will be liable therefor; and (viii) notwithstanding any other provision of this Agreement, no party hereto shall have liability for any consequential, exemplary or punitive damages, in each case, except to the extent any such damages are awarded and paid with respect to a claim asserted by a third party. - 58 - (d) Procedure. (i) Direct Claims. If either a Buyer Indemnitee, on the one hand, or a Stockholder Indemnitee, on the other hand, shall have a claim for indemnification hereunder (the “Indemnitee”) for any claim other than a claim asserted by a third party, the Indemnitee shall, as promptly as is practicable, give written notice to the party from whom indemnification is sought (the “Indemnitor”) of the nature and, to the extent practicable, a good faith estimate of the amount, of the claim. The failure to make timely delivery of such written notice by the Indemnitee to the Indemnitor shall not relieve the Indemnitor from any liability under this Article IX with respect to such matter, except to the extent the Indemnitor is actually materially prejudiced by failure to give such notice. The Indemnitor shall be deemed to deny the claim unless the Indemnitor acknowledges and agrees to such claim in writing signed by such Indemnitor. No acknowledgment or agreement by one Indemnitor shall be deemed an acknowledgement or agreement to such claim by any other Indemnitor; provided that any acknowledgement or agreement of the Stockholders’ Representative shall constitute the acknowledgement or agreement of all Indemnitors that are Stockholders in accordance with Section 9.2(d)(iv). If the Indemnitee and Indemnitor are unable to agree on the amount of any claim within fifteen (15) days after the Indemnitor’s receipt of the written notice set forth herein, either party shall be permitted to pursue resolution of such dispute in accordance with Section 11.11. (ii) Third-Party Actions (Other than Tax Contests). (A) If an Indemnitee receives notice or otherwise obtains knowledge of any matter or any threatened matter that may give rise to an indemnification claim against the Indemnitor with respect to a claim asserted by a third party, then the Indemnitee shall promptly deliver to the Indemnitor a written notice describing, to the extent practicable, such matter in reasonable detail. The failure to make timely delivery of such written notice by the Indemnitee to the Indemnitor shall not relieve the Indemnitor from any liability under this Section 9.2 with respect to such matter, except to the extent the Indemnitor is actually materially prejudiced by failure to give such notice. The Indemnitor shall have the right, at its option, exercisable within fifteen (15) Business Days after the date of such notice to assume the defense of any such matter with its own counsel and at its sole cost and expense; provided that (x) such counsel shall be reasonably satisfactory to the Indemnitee, (y) the Indemnitor shall have such right to assume the defense of any such matter only if the Indemnitor irrevocably relinquishes its right to contest whether such claim is indemnifiable hereunder and (z) the Indemnitor shall not have any right to assume the defense of any such matter if (1) the Indemnitee is a Buyer Indemnitee and the applicable third party claimant is a then-current customer of the Indemnitee or its Affiliates, (2) the Indemnitee is a Buyer Indemnitee and reasonably believes an adverse determination with respect to such matter would be materially detrimental to or materially injure the reputation and future business prospects of the Indemnitee or its Affiliates, (3) such matter is criminal in nature, (4) such matter seeks injunctive relief or other equitable remedies against the Indemnitee, (5) such matter seeks damages in excess of the amount for which the Indemnitee could obtain indemnification from the Indemnitor pursuant to this Article IX or (6) the Indemnitor fails to provide the Indemnitee with evidence reasonably acceptable to the Indemnitee that the Indemnitor will have the financial resources to defend such matter and fulfill its indemnification obligations under this Article IX. - 59 - (B) If the Indemnitor elects to assume the defense of and indemnification for any such matter in accordance with this Section 9.2(d), then: (1) notwithstanding anything to the contrary contained in this Agreement, the Indemnitor shall not be required to pay or otherwise indemnify the Indemnitee against any attorneys’ fees or other expenses incurred on behalf of the Indemnitee in connection with such matter following the Indemnitor’s election to assume the defense of such matter, unless (x) the Indemnitor fails to defend diligently the action or proceeding within ten (10) days after receiving notice of such failure from the Indemnitee, (y) the Indemnitee reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such Indemnitee or other Indemnitees that are not available to the Indemnitor, or (z) the Indemnitee reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, the Indemnitee and the Indemnitor may have different, conflicting, or adverse legal positions or interests; (2) except in connection with any Litigation where any Indemnitee is adverse to any Indemnitor, the Indemnitee shall, at its own expense, make available to the Indemnitor all books, records and other documents and materials that are under the direct or indirect control of the Indemnitee or any of the Indemnitee’s agents and that the Indemnitor considers necessary or desirable for the defense of such matter, and reasonably cooperate with, and make its employees and advisors available or otherwise render reasonable assistance to, the Indemnitor and its agents; and (3) the Indemnitor shall not settle or compromise any pending or threatened Litigation in respect of which indemnification may be sought hereunder (whether or not the Indemnitee is an actual or potential party to such Litigation) or consent to the entry of any judgment, in each case without the written consent of the Indemnitee, which shall not be unreasonably withheld or delayed. (C) If (x) the Indemnitor elects not to assume the defense of and indemnification for such matter (or fails to notify the Indemnitee of such election within the period set forth in Section 9.2(d)(ii)(A)), (y) elects to assume the defense of and indemnification for such matter but then fails to diligently conduct such defense, or (z) is not entitled to assume the defense of such matter pursuant to Section 9.2(d)(ii)(A), then the Indemnitee shall proceed diligently to defend such matter with the assistance of counsel reasonably satisfactory to the Indemnitor; provided, that the Indemnitee shall not settle, adjust or compromise such matter, or admit any liability with respect to such matter, without the prior written consent of the Indemnitor, such consent not to be unreasonably withheld or delayed. (D) The procedures in this Section 9.2(d)(ii) shall not apply to matters subject to Section 9.2(d)(iii) (Tax Contests) or to direct claims of an Indemnitee which are addressed in Section 9.2(d)(i). (iii) Tax Contests. (A) If, following the Closing Date, Buyer or any of the Group Companies receives from any Taxing Authority written notice of any Tax Contest with respect to which Buyer or the other Group Companies may reasonably have any liability for Pre-Closing Taxes, Buyer shall promptly provide a copy of such notice to the Stockholders’ Representative; provided, that Buyer’s failure to promptly provide a copy of such notice to the Stockholders’ Representative shall not affect the Buyer Indemnitee’s right to receive indemnification under Section 9.2(a) unless the Stockholders’ Representative is materially prejudiced thereby. - 60 - (B) The Stockholders’ Representative shall have the right, at its expense, to control, manage and be responsible for any Tax Contest to the extent that such Tax Contest relates to Pre-Closing Taxes, other than Tax Contests with respect to a Straddle Period. Buyer may participate in such Tax Contest and the such Tax Contest without the consent of Buyer, which consent will not be unreasonably withheld or delayed. The Stockholders’ Representative shall keep Buyer informed of the progress of all such Tax Contests and shall provide copies of all written communications with any Taxing Authority related to such Tax Contests. With respect to a Tax Contest controlled by the Buyer that relates to Pre-Closing Taxes, Buyer shall not settle, compromise or otherwise resolve such Tax Contest without the consent of the Stockholders’ Representative, which consent will not be unreasonably withheld or delayed. (iv) Stockholders’ Representative. All notices to be provided to the Stockholders as an Indemnitee or Indemnitor pursuant to this Section 9.2(d) shall be provided to the Stockholders’ Representative and the Stockholders’ Representative shall act on behalf of the Stockholder Indemnitees and any Stockholders that are Indemnitors under this Section 9.2(d). (e) Tax Treatment. The parties hereto agree to treat any indemnity payment made pursuant to this Article IX as an adjustment to the purchase price for federal, state, local and foreign income Tax purposes. 9.3. Recourse; Escrow Release; Set-Off. (a) In the event that any Buyer Indemnitee is entitled to indemnification for Losses pursuant to this Article IX, then, subject to the applicable limitations set forth in this Article IX, such Buyer Indemnitee shall satisfy the amount of such Losses (i) from amounts then remaining in the Escrow Account and (ii) thereafter, directly from each Indemnifying Stockholder on a several but not joint basis. Upon a Buyer Indemnitee becoming entitled to receive any sums from the Escrow Account pursuant to this Article IX or Section 6.4(a), Buyer and the Stockholders’ Representative shall deliver joint written instructions to the Escrow Agent instructing the Escrow Agent to disburse to such Buyer Indemnitee from the Escrow Account the amount to which such Buyer Indemnitee is so entitled (or the entire then-remaining balance of the Escrow Account, if less than such amount). (b) Upon the Expiration Date, Buyer and the Stockholders’ Representative shall deliver joint written instructions to the Escrow Agent to disburse from the Escrow Account to the Stockholders’ Representative (on behalf of and for further distribution to the Stockholders on a pro rata basis in accordance with their respective Stockholder’s Share) an amount equal to (i) the balance then remaining in the Escrow Account less (ii) the Stockholders’ collective Stockholders’ Share of the aggregate amount (as estimated by Buyer in good faith) of any claims of the Buyer Indemnitees for indemnification properly notified in accordance with this Article IX and that remain unresolved as of the Expiration Date (each, a “Pending Claim”). - 61 - (c) Upon the full and final resolution of a Pending Claim, if the amount retained in the Escrow Account with respect to such Pending Claim pursuant to Section 9.3(b) exceeds the amount that the Buyer Indemnitees are entitled to receive from the Escrow Account pursuant to this Article IX in respect of such Pending Claim, then Buyer and the Stockholders’ Representative shall deliver joint written instructions to the Escrow Agent to disburse from the Escrow Account to the Stockholders’ Representative (on behalf of and for further distribution to the Stockholders on a pro rata basis in accordance with their respective Stockholder’s Share) the amount of such excess. 9.4. Exclusive Remedy. Following the Closing, the sole and exclusive remedy for any and all claims arising under, out of, or related to this Agreement, or the Contemplated Transactions, shall be the rights of indemnification set forth in this Article IX only, and no person will have any other entitlement, remedy or recourse, whether in contract, tort or otherwise, it being agreed that all of such other remedies, entitlements and recourse are expressly waived and released by the parties hereto to the fullest extent permitted by law, except for (a) the remedies arising from claims based on Fraud in connection with the Contemplated Transactions, (b) the equitable and other remedies available to the parties pursuant to Section 11.15, and (c) the dispute resolution mechanisms set forth in Section 2.4. ARTICLE X Termination 10.1. Termination Events. This Agreement may be terminated and the transactions contemplated hereby may be abandoned: (a) at any time, by mutual written agreement of the Stockholders’ Representative and Buyer; or (b) by Buyer, at any time prior to the Closing, if (i) the Company, any Stockholder, or the Stockholders’ Representative is in breach, in any material respect, of the representations, warranties or covenants made by it in this Agreement, (ii) such breach is not cured within ten (10) days of written notice of such breach from Buyer (to the extent such breach is curable) and (iii) such breach, if not cured, would render the conditions set forth in Section 7.2 incapable of being satisfied; or (c) by the Stockholders’ Representative, at any time prior to the Closing, if (i) Buyer is in breach, in any material respect, of the representations, warranties or covenants made by it in this Agreement, (ii) such breach is not cured within ten (10) days of written notice of such breach from the Stockholders’ Representative (to the extent such breach is curable) and Section 7.1 incapable of being satisfied; - 62 - (d) by written notice by either the Stockholders’ Representative or Buyer to the other, at any time after the date that is the four (4)-month anniversary of the date hereof (the “Initial Outside Date”) if the Closing shall not have occurred on or prior to such date; provided, that (i) if, on the Initial Outside Closing Date, all of the conditions set forth in Article VII have been satisfied or waived, other than the condition set forth in Section 7.2(e) and those conditions that by their nature are to be satisfied by actions to be taken at the Closing, then Buyer shall be permitted, in its sole discretion, to elect to extend the Initial Outside Date for up to two (2) successive thirty (30)-day periods by providing written notice of such election to the Stockholders’ Representative on or prior to the Initial Outside Date, and (ii) the right to terminate this Agreement under this Section 10.1(d) shall not be available to such party if the action or inaction of such party (or in the case of the Stockholders’ Representative, the Company or the Stockholders) or any of its Affiliates has been a principal cause of or resulted in the failure of the Closing to occur on or before such date and such action or failure to act constitutes a breach of this Agreement; (e) by either Buyer or the Stockholders’ Representative if any Governmental Authority having competent jurisdiction has issued a final, non-appealable Order or taken any other action the effect of which is to permanently restrain, enjoin or otherwise prohibit the Contemplated Transactions; provided that the right to terminate this Agreement under this Section 10.1(e) shall not be available to such party if the action or inaction resulted in such Order or action and such action or inaction constitutes a breach of this Agreement; or (f) by the Buyer pursuant to Section 6.14. 10.2. Procedure and Effect of Termination. In the event of the termination of this Agreement and the abandonment of the Contemplated Transactions, written notice thereof shall be given by a terminating party to the other parties (or to the Stockholders’ Representative, if Buyer is the terminating party), and this Agreement shall terminate and the Contemplated Transactions shall be abandoned without further action by any of the parties. If this Agreement is terminated pursuant to Section 10.1, no party hereto shall have any obligation or liability to the other parties hereto, except that the parties hereto shall remain bound by the provisions of this Section 10.2, Section 6.8, Article XI and by the provisions of the NDA; provided, that nothing herein shall relieve a defaulting or breaching party from any liability or damages arising out of its breach of any provision of this Agreement. ARTICLE XI Miscellaneous 11.1. Stockholders’ Representative. (a) Appointment of Stockholders’ Representative. Raymond Davison shall be the agent and attorney-in-fact for each of the Stockholders to act as Stockholders’ Representative under this Agreement and the Ancillary Documents in accordance with the terms of this Section 11.1 and the Ancillary Documents (the “Stockholders’ Representative”). In the event of the resignation, death or incapacity of the Stockholders’ Representative, a successor Stockholders’ Representative reasonably satisfactory to Buyer shall thereafter be appointed by an instrument in writing signed by Buyer and such successor Stockholders’ Representative. - 63 - (b) Authority. The Stockholders’ Representative is hereby authorized and empowered to act for, and on behalf of, any or all of the Stockholders (with full power of substitution in the premises) in connection with (i) the indemnity provisions of Article IX as they relate to the Stockholders generally and (ii) such other matters as are reasonably necessary for the consummation of the Contemplated Transactions including, without limitation, (A) to receive all cash sums owing to the Stockholders under this Agreement, (B) to terminate, amend, waive any provision of, or abandon, this Agreement or any of the Ancillary Documents, (C) to act as the representative of the Stockholders to review and authorize all claims and disputes or question the accuracy thereof, (D) to negotiate and compromise on their behalf with Buyer any claims asserted thereunder and to authorize payments to be made with respect thereto, (E) to take such further actions as are authorized in this Agreement or the Ancillary Documents, and (F) in general, do all things and perform all acts, including, without limitation, executing and delivering all agreements (including, without limitation, the Ancillary Documents), certificates, receipts, consents, elections, instructions and other documents contemplated by or deemed by the Stockholders’ Representative to be necessary or desirable in connection with this Agreement, the Ancillary Documents and the Contemplated Transactions. Buyer shall be entitled to rely on such appointment and to treat the Stockholders’ Representative as the duly appointed attorney-in-fact of each Stockholder. Notices given to the Stockholders’ Representative in accordance with the provisions of this Agreement shall constitute notice to the Stockholders for all purposes under this Agreement. (c) Extent and Survival of Authority. The appointment of the Stockholders’ Representative is an agency coupled with an interest and is irrevocable and any action taken by the Stockholders’ Representative pursuant to the authority granted in this Section 11.1 shall be effective and absolutely binding on each Stockholder notwithstanding any contrary action of or direction from such Stockholder, except for actions or omissions of the Stockholders’ Representative constituting willful misconduct or gross negligence. The death or incapacity, or dissolution or other termination of existence, of any Stockholder shall not terminate the authority and agency of the Stockholders’ Representative. Buyer and any other party to an Ancillary Document in dealing with the Stockholders’ Representative may conclusively and absolutely rely, without inquiry, upon any act of the Stockholders’ Representative as the act of the Stockholder. (d) Release from Liability; Indemnification. The Stockholders’ Representative shall not be liable to any Stockholder or to any other Person (other than Buyer), with respect to any action taken or omitted to be taken by the Stockholders’ Representative in his role as Stockholders’ Representative under or in connection with this Agreement, unless such action or omission results from or arises out of willful misconduct or gross negligence on the part of the Stockholders’ Representative, and the Stockholders’ Representative shall not be liable to any Stockholder in the event that, in the exercise of his reasonable judgment, the Stockholders’ Representative believes there will not be adequate resources available to cover potential costs and expenses to contest a claim made by Buyer against the Stockholders. (e) Reimbursement of Expenses. The Stockholders’ Representative shall receive no compensation for service as such, but shall receive reimbursement from, and be indemnified by, the Stockholders, pro rata in accordance with their respective Stockholder’s Share, for any and all expenses, charges and liabilities, including, but not limited to, reasonable attorneys’ fees, incurred by the Stockholders’ Representative in the performance or discharge of his duties pursuant to this Section 11.1. - 64 - 11.2. Expenses. All fees and expenses incurred in connection with the Contemplated Transactions shall be paid by the party incurring such expenses, whether or not the Contemplated Transactions are consummated. 11.3. Notices. All notices and other communications given or made pursuant hereto shall be in writing and shall be deemed to have been duly given or made (a) as of the date delivered, if delivered personally, (b) on the date the delivering party receives confirmation, if delivered by email, (c) three (3) Business Days after being mailed by registered or certified mail (postage prepaid, return receipt requested) or (d) one (1) Business Day after being sent by overnight courier (providing proof of delivery), to the parties at the following addresses (or at such other address for a party as shall be specified in a notice given in accordance with this Section 11.3): If to the Group Companies (prior to the Closing), the Stockholders or the Stockholders’ Representative: Raymond Davison 5716 Corsa Ave, Suite 102 Westlake Village, California 91362 Email: rdavison@timios.com With a copy (which shall not constitute notice) to: Timothy Splane, General Counsel of the Company Email: tsplane@timios.com and Troy J. Rillo, Esq. 931 Dolphin Drive Jupiter, Florida 33458 Email: t.rillo@me.com If to Buyer or the Group Companies (after the Closing): Ideanomics, Inc. 1441 Broadway, Suite 5116 Attn: Alf Poor, Chief Executive Officer Email: apoor@ideanomics.com Venable LLP 1270 Avenue of the Americas 24th Floor Attn: William N. Haddad Email: WNHaddad@Venable.com - 65 - This Agreement, and all claims or causes of action (whether in contract or tort) that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement (including, without limitation, any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement), shall be governed by the internal laws of Delaware (excluding conflict of laws rules and principles). 11.5. Entire Agreement. This Agreement, together with the Exhibits hereto, the Company Disclosure Schedule, the Stockholder Disclosure Schedule, the Buyer Disclosure Schedule, and the Ancillary Documents, contains the entire agreement of the parties respecting the Contemplated Transactions and supersedes all prior agreements among the parties respecting the Contemplated Transactions. The parties hereto have voluntarily agreed to define their rights, liabilities and obligations respecting the Contemplated Transactions exclusively in contract pursuant to the express terms and provisions of this Agreement; and the parties hereto expressly disclaim that they are owed any duties or are entitled to any remedies not expressly set forth in this Agreement. Furthermore, the parties each hereby acknowledge that this Agreement embodies the justifiable expectations of sophisticated parties derived from arm’s-length negotiations. 11.6. Severability. Should any provision of this Agreement or the application thereof to any Person or circumstance be held invalid or unenforceable to any extent: (a) such provision shall be ineffective to the extent, and only to the extent, of such unenforceability or prohibition and shall be enforced to the greatest extent permitted by Law, (b) such unenforceability or prohibition in any jurisdiction shall not invalidate or render unenforceable such provision as applied (i) to other Persons or circumstances or (ii) in any other jurisdiction, and (c) such unenforceability or prohibition shall not affect or invalidate any other provision of this Agreement. - 66 - 11.7. Amendment. Neither this Agreement nor any of the terms hereof may be terminated, amended, supplemented or modified orally, but only by an instrument in writing signed by the parties hereto; provided, that the observance of any provision of this Agreement may be waived in writing by the party that will lose the benefit of such provision as a result of such waiver. 11.8. Effect of Waiver or Consent. No waiver or consent, express or implied, by any party to or of any breach or default by any party in the performance by such party of its obligations hereunder shall be deemed or construed to be a consent or waiver to or of any other breach or default in the performance by such party of the same or any other obligations of such party hereunder. No single or partial exercise of any right or power, or any abandonment or discontinuance of steps to enforce any right or power, shall preclude any other or further exercise thereof or the exercise of any other right or power. Failure on the part of a party to complain of any act of any party or to declare any party in default, irrespective of how long such failure continues, shall not constitute a waiver by such party of its rights hereunder until the applicable statute of limitation period has run. 11.9. Parties in Interest; Limitation on Rights of Others. The terms of this Agreement shall be binding upon, and inure to the benefit of, the parties hereto and their respective legal representatives, successors and assigns. Nothing in this Agreement, whether express or implied, shall be construed to give any Person (other than the parties hereto and their respective legal representatives, successors and assigns and as expressly provided herein) Agreement or any covenants, conditions or provisions contained herein, as a third party beneficiary or otherwise; provided that Buyer Indemnitees or Stockholder Indemnitees who are not otherwise a party to this Agreement shall be third party beneficiaries of this Agreement. 11.10. Assignability. This Agreement shall not be assigned by the Company without the prior written consent of Buyer. Prior to Closing, this Agreement shall not be assigned by Buyer without the prior written consent of the Company; provided, that Buyer may assign their rights and obligations under this Agreement without such required consent to an Affiliate, which assignment shall not relieve Buyer of its obligations hereunder. - 67 - 11.11. Jurisdiction; Court Proceedings; Waiver of Jury Trial. Any Litigation against any party to this Agreement arising out of or in any way relating to this Agreement (other than those disputes to be resolved by the Auditor in accordance with Section 2.4) shall be brought in any federal or state court located in the State of Delaware in New Castle County and each of the parties hereby submits to the exclusive jurisdiction of such courts for the purpose of any such Litigation; provided that a final judgment in any such Litigation shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law. Each party irrevocably and unconditionally agrees not to assert (a) any objection which it may ever have to the laying of venue of any such Litigation in any federal or state court located in the State of Delaware in New Castle County, (b) any claim that any such Litigation brought in any such court has been brought in an inconvenient forum or (c) any claim that such court does not have jurisdiction with respect to such Litigation. To the extent that service of process by mail is permitted by applicable Law, each party irrevocably consents to the service of process in any such Litigation in such courts by the mailing of such process by registered or certified mail, postage prepaid, at its address for notices provided for herein. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT TO A TRIAL BY JURY AND AGREES THAT ANY OF THEM MAY FILE A COPY OF THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED-FOR AGREEMENT AMONG THE PARTIES IRREVOCABLY TO WAIVE ITS RIGHT TO TRIAL BY JURY IN ANY LITIGATION. 11.12. No Other Duties. The only duties and obligations of the parties under this Agreement are as specifically set forth in this Agreement, and no other duties or obligations shall be implied in fact, Law or equity, or under any principle of fiduciary obligation. 11.13. Reliance on Counsel and Other Advisors. Each party has consulted such legal, financial, technical or other expert as it deems necessary or desirable before entering into this Agreement. Each party represents and warrants that it has read, knows, understands and agrees with the terms and conditions of this Agreement. 11.14. Remedies. All remedies, either under this Agreement or by Law or otherwise afforded to the parties hereunder, shall be cumulative and not alternative, and any Person having any rights under any provision of this Agreement will be entitled to enforce such rights specifically, to recover damages by reason of any breach of this Agreement and to exercise all other rights granted by Law, equity or otherwise. 11.15. Specific Performance. The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. Accordingly, the parties agree that, in addition to any other remedies, each party shall be entitled to enforce the terms of this Agreement by a decree of specific performance without the necessity of proving the inadequacy of money damages as a remedy. Each party hereby waives any requirement for the securing or posting of any bond in connection with such remedy. Each party further agrees that the only permitted objection that it may raise in response to any action for equitable relief is that it contests the existence of a breach or threatened breach of this Agreement. - 68 - 11.16. Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same the same instrument. Counterparts may be delivered via facsimile, electronic mail (including, without limitation, pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes. 11.17. Further Assurances. If at any time after the Closing any further action is necessary or desirable to fully effect the Contemplated Transactions or any other of the Ancillary Documents, each of the parties shall take such further action (including, without limitation, the execution and delivery of such further instruments and documents) as any other party reasonably may request. (signature pages follow) - 69 - IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be duly executed and delivered in its name and on its behalf, all as of the day and year first above written. IDEANOMICS, INC. By: Name: Title: [Signature page to Stock Purchase Agreement] TIMIOS HOLDINGS CORP. By: Name: Title: MARK ANGELO FAMILY, LP By: Name: Title: MATTHEW BECKMAN FAMILY, LP By: Name: Title: GERALD EICKE FAMILY, LP By: Name: Title: DAVID GONZALEZ FAMILY, LP By: Name: Title: MICHAEL ROSSELLI MAUREEN ANGELO 2019 STOFFER FAMILY TRUST By: Name: Title: RAYMOND DAVISON, Individually and as Stockholders’ Representative LEONARD SPLANE YUTAKA SARUMARU ROSS ENGLISH SKS CONSULTING OF SOUTH FLORIDA CORP. By: Name: Title: JOSEPH MONTAG MATTHEW HALL APOLLO GROUP HOLDINGS, LLC By: Name: Title: JORDAN TOMENGA RICHARD AND DEANNAH THOMAS REVOCABLE TRUST By: Name: Title: DOMINIC JANERO TIMOTHY SPLANE Schedule 2.2 (Purchased Shares) Name Pre-Transaction Shares* Base Consideration Shares to be Purchased by Buyer Mark Angelo Family, LP 2,296,358 10,828,294 2,296,358 Matthew Beckman Family, LP 818,111 3,857,738 818,111 Gerald Eicke Family, LP 818,111 3,857,738 818,111 David Gonzalez Family, LP 818,111 3,857,738 818,111 Michael Rosselli 287,056 1,353,590 287,056 Trevor G. Stoffer and Monica Stoffer, Trustees of the 2019 Stoffer Family Trust 1,485,530 7,004,899 1,485,530 Maureen Angelo 703,381 3,316,737 703,381 Raymond Davison 580,995 2,739,636 580,995 Leonard Splane 399,431 1,883,485 399,431 Yutaka Sarumaru 275,538 1,299,278 275,538 Ross English 230,538 1,087,084 230,538 Timothy Splane 260,538 1,228,546 260,538 SKS Consulting 104,543 492,964 104,543 Joseph Montag 151,166 712,811 151,166 Matthew Hall 145,000 683,736 145,000 Apollo Group Holdings, LLC 100,000 471,542 100,000 Jordan Tomenga 25,000 117,886 25,000 Richard and Deannah Thomas Revocable Trust 25,000 117,886 25,000 Dominic Janero 18,750 88,414 18,750 9,543,157 45,000,000 9,543,157 Percentage Ownership of Company 100.00% * Represents the Common Stock beneficially owned by the named Stockholder immediately prior to the Contemplated Transactions.
Title: Neighbor threatens to sue me for his smashed windows. Question:Location: California. Ok, here is the deal. We live in an appt complex and each tenant has 2 assigned spots. The location of our apartment allows us to park our cars near the front door, it has this paved area that isn't really a parking but we park here without parking in designated area. This allows for having cars right under out noses and just convenient overall. So normally we don't use the assigned marked sports by the gates. However when we need to use the spot we owe it is always taken by this contractor guy and his trucks. We told him several times that he may use one of the spots no problem, but taking up all two is just too much. Recently he got into an argument with us after we told him to move both cars, we had guests over and needed to move our cars out of the front yard for guests to park. He did move his trucks that night but it was a major shitstrom. Remember those are our spots we pay for, just that he used them for a long time he assumed(?) it was his. So, here is what happened. Last night someone smashed his work trucks windows, all 4, windshield, sides and back. He is accusing us and threatens to sue. He has no proof that we did it, other then the fact that we had an argument. We didn't do it and didn't tell anyone to do it, it just came to us as a shock when he called us today, we thought it was a parking argument 2.0, but he seems serious. What can I tell him to get him off my back. Since it happened at night neither of us has an alibi since we can't say we were at work, we were home sleeping. Answer #1: You say that you didn't do it then you stop talking to him. If he sues then you deal with that. But I doubt he will.
Golden Phoenix Closes Acquisition of Ra Resources; Prepares To Advance Exploratory Drilling Program SPARKS, NV, APRIL 20, 2011 – Golden Phoenix Minerals, Inc. (the "Company") (OTC Bulletin Board: GPXM) is pleased to announce that on April 14, 2011, the Company closed the definitive Acquisition Agreement dated October 6, 2010, with Ra Resources Ltd. to acquire a 100% interest in four gold and base metal properties within the Shining Tree mining district of northeastern Ontario. "Golden Phoenix is now positioned to begin moving forward with our exploratory drilling program in the Shining Tree mining district," stated Tom Klein, CEO of Golden Phoenix. "We expect to make initial inroads on our previously announced drill program during the second quarter of 2011." Upon the effective date of the closing of April 14, 2011, the Company acquired 100% of the outstanding securities of Ra Resources Ltd. by way of a "three-cornered amalgamation" in accordance with the Business Corporations Act (Ontario). In consideration for the acquisition, the Company will issue to the shareholders of Ra Resources such number of shares of Company common stock as determined by an exchange ratio of 3.5 Golden Phoenix shares for every 1 common share of Ra Resources outstanding.As of the Closing, there were 9,326,523 shares of Ra Resources common shares issued and outstanding.Accordingly, the Company will issue 32,642,831 shares of its common stock in consideration for the acquisition.The Company will also issue an aggregate of 700,000 options to acquire Company common stock at an exercise price of approximately $0.03 per share for the cancellation and exchange of outstanding options to acquire common shares of Ra Resources, based on the 3.5 for 1 exchange ratio. Shareholders of Ra Resources approved the transaction at a meeting duly held on December 16, 2010.As a further condition to closing, all necessary regulatory approvals were obtained, and each party reaffirmed certain representations, warranties and covenants customary for a transaction of this nature. Further disclosure regarding this transaction can be found in the Company's Form 8-K to be filed with the SEC as of the date of this press release. Please visit the Golden Phoenix website at:www.golden-phoenix.com. About Golden Phoenix:Golden Phoenix Minerals, Inc. is a Nevada-based mining company whose focus is Royalty Mining in the Americas. Golden Phoenix is committed to delivering shareholder value by identifying, acquiring, developing and joint venturing gold, silver and strategic metal deposits throughout North, South and Central America. Golden Phoenix owns, has an interest in, or has entered into agreements with respect to mineral properties located in the United States, Canada and Peru including its 30% interest in the Mineral Ridge gold project near Silver Peak, Nevada. Forward Looking Statements:Information contained herein regarding optimism related to the business, expanding exploration, development activities and other such statements are "forward-looking statements" within the meaning of the Private Securities Litigation Reform Act of 1995 and are subject to the safe harbors created thereby. While Golden Phoenix believes such statements are reasonable, they are based on current expectations, estimates and projections about the Company's business and are not guarantees of future performance and involve certain risks and uncertainties that are difficult to predict. Actual results could vary materially from the description contained herein due to many factors including continued market prices for the Company’s mineral products, domestic and international business and economic conditions, and other risk factors listed in the Company's Securities and Exchange Commission (SEC) filings under “risk factors” and elsewhere. The Company does not undertake any obligation to update any forward-looking statement to reflect events or circumstances after the date of this press release. Source: Golden Phoenix Minerals, Inc. For More Information Contact: Robert Ian, Director of Corporate Communications (775) 453-4741 robertian@golden-phoenix.com Golden Phoenix Minerals, Inc. • 1675 East Prater Way #102 • Sparks, NV 89434 Tel: (775) 853-4919 • Fax: (775) 853-5010 • www.Golden-Phoenix.com
Exhibit 31.1 CERTIFICATIONS OF CHIEF EXECUTIVE OFFICER PURSUANT TO RULES 13a-14 AND 15d-14 OF THE SECURITIES EXCHANGE ACT OF 1934 I, Joseph Lu, certify that: 1) I have reviewed this quarterly report on Form 10-Q of POWIN CORPORATION; 2) Based on my knowledge, this quarterly 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 quarterly report; 3) Based on my knowledge, the financial statements and other financial information included in this quarterly 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 quarterly report; 4) The registrant’s other certifying officer and I are responsible for establishing and maintaining 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 15d-15(f)) for the registrant and have: a. Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant , including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this quarterly report is being prepared. b. Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our 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; c. Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this quarterly report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this quarterly report based on such evaluation; and d. Disclosed in this quarterly report any changes in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarterthat has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and 5) The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of 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. Dated:May 21, 2012 By: /s/ Joseph Lu Joseph Lu Chief Executive Officer
Exhibit 10. (iii) (H) (a) AMENDMENT TO AMENDED AND RESTATED EMPLOYMENT AGREEMENT THIS AMENDMENT (the “Amendment”) is made by Sterling Bancorp (the “Company”) and Louis J. Cappelli (“Executive”) to be effective as of December 29, 2008. WHEREAS, the Company and Executive are parties to an Amended and Restated Employment Agreement dated March 22, 2002, which was last amended on March 13, 2008 (the “Agreement”); WHEREAS, the Company and Executive desire to amend certain provisions of the Agreement in order to be exempt from or comply with Section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”); and NOW, THEREFORE, the Agreement is hereby amended as follows: 1. Section 2 of the Agreement is hereby amended by adding a new Section 2(c) as follows: “(c) will be permitted to continue to engage in activities not directly related to the business of the Company which Executive was permitted to engage in prior to a Change in Control (as defined in Schedule A hereto).” 2. Section 4(b) of the Agreement is hereby deleted in its entirety. 3. Section 5(c) of the Agreement is hereby replaced in its entirety by the following: “(c) Disability. In the event of the termination of Executive’s employment due to Executive’s Disability, the Company will pay Executive three months of Executive’s Base Salary in a lump sum.” 4. Section 5(d) of the Agreement is hereby replaced in its entirety by the following: “(d) Death. In the event of the termination of Executive’s employment due to Executive’s death, the Company will pay six months of Executive’s Base Salary to Executive’s estate in a lump sum.” 5. In the first sentence of Section 5(e) of the Agreement, the following text is hereby deleted: “in connection with a Change in Control pursuant to Section 4(b) hereof or”. 6. Section 5(e)(i) of the Agreement is hereby replaced in its entirety by the following: “(i) the Company shall pay the Executive a lump sum equal to the Executive’s Base Salary that would be payable in respect of the Post-Termination Period (as defined in Section 5(i)).” 7. Section 5(e)(ii) of the Agreement is hereby replaced in its entirety by the following: “(ii) the Company shall pay Executive (A) if the termination of Executive’s employment is prior to a Change in Control, a lump sum at the time the Company ordinarily pays annual bonuses for the year in which the termination occurs equal to the product of (1) Executive’s annual bonus that he would have received in the calendar year in which the Date of Termination occurs based on the Company’s actual performance for such year, and (2) a fraction, the numerator of which is the number of days elapsed in the calendar year in which the Date of Termination occurs and the denominator of which is 365; and (B) if the termination of Executive’s employment is on or after a Change in Control, a lump sum upon Executive’s termination of employment equal to Executive’s “Pro Rata Bonus” (as defined in Section 5(i)) for the Post-Termination Period.” 8. Section 5 of the Agreement is hereby amended by adding a new Section 5(k) as follows: “(k) Timing of Payments. The lump sum payments in Section 5(c), (d), (e) (except for Section 5(e)(ii)(A)) and (f) will be made by the Company within 15 days following the date of Executive’s termination of employment.” 9. The following paragraph shall be added as the new Section 13 of the Agreement as follows: “13. Section 409A. It is the parties’ intent that the Agreement comply with or be exempt from the requirements of Section 409A and that the Agreement be administered and interpreted accordingly. Each payment made under this Agreement shall be deemed to be separate payments. Amounts payable under this Agreement shall be deemed not to be a “deferral of compensation” subject to Section 409A to the extent provided in the exceptions in Treasury Regulation Sections 1.409A-1(b)(4) (“short-term deferrals”) and (b)(9) (“separation pay plans,” including the exception under subparagraph (iii)) and other applicable provisions of Treasury Regulation Section 1.409A-1 through A-6. Notwithstanding the previous sentence, if and to the extent that any payment or benefit under this Agreement is determined by the Company to constitute “non-qualified deferred compensation” subject to Section 409A and is payable to Executive by reason of Executive’s termination of employment, then (a) such payment or benefit shall be made or provided to Executive only upon a “separation from service” as defined for purposes of Section 409A under applicable regulations and (b) if Executive is a “specified employee” (within the meaning of Section 409A and as determined by the Company), such payment or benefit shall be made or provided on the date that is six months and one day after the date of Executive’s separation from service (or earlier death). Any amount not paid in respect of the six month period specified in the preceding sentence will be paid to Executive (plus interest at the applicable federal rate as defined in Section 1274(d) of the Code) in a lump sum on the date that is six months and one day after the Executive’s separation from service (or earlier death). Except as otherwise expressly provided herein, to the extent any expense reimbursement or other in-kind benefit is determined to be subject to Section 409A, the amount of any such expenses eligible for reimbursement or in-kind benefits in one calendar year shall not affect the expenses eligible for reimbursement or in-kind benefits in any other taxable year (except under any lifetime limit applicable to expenses for medical care), in no event shall any expenses be reimbursed or in-kind benefits be provided after the last day of the calendar year following the calendar year in which Executive incurred such expenses or received such benefits, and in no event shall any right to reimbursement or in-kind benefits be subject to liquidation or exchange for another benefit.” 10. The definition of Good Reason in Schedule B to the Agreement is hereby replaced in its entirety by the following: “Good Reason” will mean, without Executive’s express written consent: (A) Executive’s being removed, or not being re-elected, as a director, or as Chairman of the Board and CEO of the Company, or as a director or as Chairman of the Board of the Bank, except in connection with termination of Executive’s employment by the Company for Cause or Disability or by Executive without Good Reason or due to death; (B) Any change in the duties or responsibilities (including reporting responsibilities) of Executive that is inconsistent in any material and adverse respect with Executive’s positions(s), duties, responsibilities or status with the Company (including any material and adverse diminution of such duties or responsibilities) or (ii) a material and adverse change in Executive’s titles or offices (including, if applicable, membership on the Board) with the Company or its affiliates; (C) A material reduction by the Company in either (1) the aggregate of Executive’s Base Salary and Bonus opportunity (including any material and adverse change in the formula for such Bonus opportunity) or (2) the aggregate of Executive’s Base Salary and Bonus, in either case of (1) or (2), as in effect immediately prior to a Change in Control or as the same may be increased from time to time thereafter; (D) Assignment to Executive of any duties or withdrawal from Executive of any authority or change in Executive’s conditions of employment materially inconsistent with Sections 2 or 3 hereof; (E) The Company’s requiring Executive to maintain Executive’s principal office or conduct Executive’s principal activities anywhere other than at the Company’s principal executive offices in New York City (other than an immaterial change in the geographic location); or (F) Any other action or inaction by the Company that constitutes a material breach of this Agreement; provided that, a termination by Executive with Good Reason shall be effective only if, (1) within 90 days following Executive becoming aware of the circumstances giving rise to Good Reason, Executive delivers a Notice of Termination for Good Reason to the Company, (2) the Company within 30 days following its receipt of such notification has failed to cure the circumstances giving rise to Good Reason, and (3) Executive terminates Executive’s employment with the Company within 90 days after the lapse of such 30 day cure period.” This Amendment constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and shall not be altered or amended except in a writing signed by the parties whose rights or obligations are affected by such amendment or alteration. Except as expressly stated herein, the Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the parties have executed this Amendment effective as of as of the first date written above. STERLING BANCORP By: Name: Dale C. Fredston Title: Senior Vice President, Corporate Secretary Louis J. Cappelli
Exhibit 10.25 SUMMARY OF COMPENSATION TO OUR NAMED EXECUTIVE OFFICERS On February 20, 2006, after a review of performance, the Compensation Committee of the Board of Directors of Cabela’s Incorporated (“Cabela’s”) established fiscal 2006 base salaries and determined fiscal 2005 cash bonuses under Cabela’s Restated Bonus Plan (the “Plan”) for Cabela’s Named Executive Officers (as defined in Item 402(a)(3) of Reg. S-K). Fiscal 2006 base salaries for Cabela’s Named Executive Officers are as follows: Name Title 2006 Base Salary Dennis Highby President and Chief Executive Officer $ 670,683 Patrick A. Snyder Senior Vice President of Merchandising $ 413,418 Michael Callahan Senior Vice President, Retail Operations and Marketing $ 413,418 Ralph W. Castner Vice President and Chief Financial Officer, and interim Chief Executive Officer of World’s Foremost Bank $ 322,144 Brian J. Linneman Vice President and Chief Operating Officer $ 263,609 Fiscal 2005 cash bonuses for Cabela’s Named Executive officers under the Plan are as follows: Name Title 2005 Cash Bonus Dennis Highby President and Chief Executive Officer $ 1,650,000 Patrick A. Snyder Senior Vice President of Merchandising $ 500,000 Michael Callahan Senior Vice President, Retail Operations and Marketing $ 500,000 Ralph W. Castner Vice President and Chief Financial Officer, and interim Chief Executive Officer of World’s Foremost Bank $ 415,000 Brian J. Linneman Vice President and Chief Operating Officer $ 415,000 Each of Messrs. Highby, Snyder, Callahan, Castner, and Linneman are employed “at will.” Fiscal 2006 base salaries for Cabela’s Named Executive Officers will be effective March 19, 2006, and fiscal 2005 cash bonuses for Cabela’s Named Executive Officers will be payable on March 3, 2006. Cabela’s Named Executive Officers are parties to respective Management Change of Control Severance Agreements with Cabela’s and are eligible to receive an annual bonus award pursuant to Cabela’s Restated Bonus Plan. Cabela’s Named Executive Officers also are eligible to participate in Cabela’s broad-based benefit plans, including health and life insurance programs, 401(k) Savings Plan, and Employee Stock Purchase Plan, to receive awards under Cabela’s 2004 Stock Plan, and to receive certain perquisites offered by Cabela’s, including discounted prices on merchandise. Additional information regarding the compensation awarded to Cabela’s Named Executive Officers in respect of and during fiscal 2005 will be set forth in the sections titled “Summary Compensation Table” and “Options Granted in Last Fiscal Year” of the Proxy Statement for Cabela’s 2006 Annual Meeting of Shareholders (the “Proxy Statement”), which sections are incorporated herein by reference. The Proxy Statement is expected to be filed with the SEC in March 2006.
Exhibit 23.1 CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM Board of Directors and Shareholders CECO Environmental Corp. and Subsidiaries Cincinnati, Ohio We hereby consent to the incorporation by reference in the Registration Statement on Form S-8 (No. 333-33270, 333-143527, 333-159948, 333-200000, and 333-206743) of CECO Environmental Corp. and Subsidiaries’ of our reports dated March 14, 2017, relating to the consolidated financial statements, and the effectiveness of CECO Environmental Corp. and Subsidiaries’ internal control over financial reporting, which appear in this Form 10-K. /s/ BDO USA, LLP Chicago, Illinois
Exhibit MARATHON OIL CORPORATION CERTIFICATION PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002 I, Clarence P. Cazalot, Jr., certify that: 1. I have reviewed this report on Form 10-Q of Marathon Oil Corporation; 2. 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; 3. 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; 4. The registrant’s other certifying officer and I are responsible for establishing and maintaining 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 15d-15(f)) for the registrant and have: (a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; (b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our 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; (c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions 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 (d) 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 (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and 5. The registrant’s other certifying officer and I have disclosed, based on our 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:August 6, 2010 /s/ Clarence P. Cazalot, Jr. Clarence P. Cazalot, Jr. President and Chief Executive Officer
Name: Commission Regulation (EC) No 1959/2000 of 15 September 2000 prohibiting fishing for redfish by vessels flying the flag of Portugal Type: Regulation Subject Matter: fisheries; Europe Date Published: nan Avis juridique important\|32000R1959Commission Regulation (EC) No 1959/2000 of 15 September 2000 prohibiting fishing for redfish by vessels flying the flag of Portugal Official Journal L 234 , 16/09/2000 P. 0004 - 0004Commission Regulation (EC) No 1959/2000of 15 September 2000prohibiting fishing for redfish by vessels flying the flag of PortugalTHE COMMISSION OF THE EUROPEAN COMMUNITIES,Having regard to the Treaty establishing the European Community,Having regard to Council Regulation (EEC) No 2847/93 of 12 October 1993 establishing a control system applicable to the common fisheries policy(1), as last amended by Regulation (EC) No 2846/98(2), and in particular Article 21(3) thereof,Whereas:(1) Council Regulation (EC) No 2742/1999 of 17 December 1999 fixing for 2000 the fishing opportunities and associated conditions for certain fish stocks and groups of fish stocks, applicable in Community waters and, for Community vessels, in waters where limitations in catch are required and amending Regulation (EC) No 66/98(3) lays down quotas for redfish for 2000.(2) In order to ensure compliance with the provisions relating to the quantity limits on catches of stocks subject to quotas, the Commission must fix the date by which catches made by vessels flying the flag of a Member State are deemed to have exhausted the quota allocated.(3) According to the information received by the Commission, catches of redfish in the waters of ICES divisions V, XII and XIV (Community fishing waters and areas beyond fisheries jurisdiction of the coastal States) by vessels flying the flag of Portugal or registered in Portugal have exhausted the quota allocated for 2000. Portugal has prohibited fishing for this stock from 25 August 2000. This date should be adopted in this Regulation also,HAS ADOPTED THIS REGULATION:Article 1Catches of redfish in the waters of ICES divisions V, XII and XIV (Community fishing waters and areas beyond fisheries jurisdiction of the coastal States) by vessels flying the flag of Portugal or registered in Portugal are hereby deemed to have exhausted the quota allocated for 2000.Fishing for redfish in the waters of ICES divisions V, XII and XIV (Community fishing waters and areas beyond the fisheries jurisdiction of the coastal States) by vessels flying the flag of Portugal or registered in Portugal is hereby prohibited, as are the retention on board, transhipment and landing of this stock caught by the above vessels after the date of application of this Regulation.Article 2This Regulation shall enter into force on the day following its publication in the Official Journal of the European Communities.It shall apply from 25 August 2000.This Regulation shall be binding in its entirety and directly applicable in all Member States.Done at Brussels, 15 September 2000.For the CommissionFranz FischlerMember of the Commission(1) OJ L 261, 20.10.1993, p. 1.(2) OJ L 358, 31.12.1998, p. 5.(3) OJ L 341, 31.12.1999, p. 1.
EXHIBIT 10.1 Amendment No. 2 to SUBSCRIPTION AGREEMENT ___________________________________ This Amendment No. 2 to the Subscription Agreement (this “Amendment”) is made as of May __, 2010 by and between the undersigned (the “Investor”).and Global Telecom & Technology, Inc., a Virginia corporation (the “Company”). Background: The Investor and the Company are parties to a Subscription Agreement, as amended (the “Subscription Agreement”), pursuant to which the Investor has purchased from the Company Units (as defined in the Subscription Agreement), with each Unit comprised of $7,000 principal amount of Notes (as defined in the Subscription Agreement) and 2,970 shares of Common Stock (as defined in the Subscription Agreement). Pursuant to Section 3.5 of the Subscription Agreement, the Units would be cancelled, and the Investor’s subscription payment returned to the Investor, without interest and without deduction, if the consummation of the Company’s acquisition of certain assets of Global Capacity (as defined in the Subscription Agreement) did not occur on or before April 30, 2010. The acquisition of the Global Capacity assets did not occur on or before April 30, 2010, and the Purchase Agreement (as defined in the Subscription Agreement) has been terminated. In accordance with the Subscription Agreement, the Company is prepared to cancel each Unit purchased by the Investor and to return to the Investor the full amount of the Investor’s subscription payment. Several purchasers of Units, however, have requested the opportunity to retain some or all of their Units, notwithstanding that the Global Capacity transaction did not occur. The Company is willing to permit purchasers of Units to cancel less than all of their Units on the terms and conditions set forth in this Amendment. Accordingly, Investor and the Company agree as follows: Agreement: 1. Election by Investor to Cancel Units. Section 3.5(b) of the Subscription Agreement is amended to permit the Investor to determine the amount, if any, of the Units subscribed for by the Investor that will be cancelled as a result of the failure of the closing of the Global Capacity acquisition to occur on or before April 30, 2010. Such cancellation may be (a) in whole or in part as to any Unit subscribed for by the Investor and (b) in whole or in part as to the Notes and the Common Stock included in each such Unit. The election of the Investor is as follows (Investor, please mark one of the following boxes): o I elect not to cancel any of my Units. The certificates representing the Notes and the Common Stock included in such Units will be delivered to me and my full subscription payment will be retained by the Company. o I elect to cancel, in part, the Units I subscribed for, as follows (if this option is selected, please complete the following for both the Notes and the Common Stock): Notes: I elect to cancel $___________ in principal (face) amount of the Notes included in my Units. Such amount of the Notes will be cancelled and a certificate representing the remainder of the Notes included in the Units I subscribed for (if any) will be delivered to me. The amount of my subscription payment attributable to the Notes cancelled (based on a purchase price of $7,000 in principal (face) amount of the Notes) shall be paid to me (without deduction and together with interest as provided in Section 2 of this Amendment). Common Stock: I elect to cancel _______ of the shares of Common Stock included in my Units. Such number of shares will be cancelled and a certificate representing the remainder of the shares of Common Stock included in the Units I payment attributable to the shares of Common Stock cancelled (based on an effective subscription price of $1.01 per share) shall be paid to me, without deduction and without interest. 1 o I elect to cancel, in full, all of the Units I subscribed for. The Notes and the Common Stock included in such Units will be cancelled and the full purchase price paid for such Units shall be paid to me without deduction (and together with interest as provided in Section 2 of this Amendment). If this Amendment is not properly executed by the Investor, with this Section 2 fully completed, and delivered to the Company on or before May 11, 2010, the Investor’s Units will be treated as if the Investor has elected to cancel the Units (as would be provided under the Subscription Agreement as in effect before this Amendment, but with the interest contemplated by Section 2 of this Amendment). 2. Interest on Notes. The Company will pay interest on the principal (face) amount of any Note cancelled pursuant to Section 3.5 of the Subscription Agreement (as amended by this Amendment), at the interest rate set forth in the Notes, from February 8, 2010 through the date on which the Company releases an electronic funds transfer to satisfy the principal (face) amount of notes cancelled pursuant to Section 3.5 of the Subscription Agreement (as amended by this Amendment). 3. No Other Changes; Effectiveness. This Amendment relates solely to the matters set forth in Sections 1 and 2 hereof and, except as expressly set forth in Sections 1 and 2 hereof, all of the provisions of the Subscription Agreement shall remain in full force and effect. 4. Governing Law. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF VIRGINIA. 5. Facsimile Signatures; Counterparts. This Amendment may be executed in two or more counterparts, each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument. Counterparts may be delivered by facsimile, electronic mail (including pdf) or other transmission method, and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes. IN WITNESS WHEREOF, this Amendment No. 2 to the Subscription Agreement has been executed as of the date above. The Company: GLOBAL TELECOM & TECHNOLOGY, INC. By: Name: Title: The Investor (please provide the appropriate signature): If the Investor is an individual: If the Investor is an entity: Name (print): Name (print): Signature: By: Name: Title: 2
Name: Commission Implementing Regulation (EU) 2017/2330 of 14 December 2017 concerning the authorisation of Iron(II) carbonate, Iron(III) chloride hexahydrate, Iron(II) sulphate monohydrate, Iron(II) sulphate heptahydrate, Iron(II) fumarate, Iron(II) chelate of amino acids hydrate, Iron(II) chelate of protein hydrolysates and Iron(II) chelate of glycine hydrate as feed additives for all animal species and of Iron dextran as feed additive for piglets and amending Regulations (EC) No 1334/2003 and (EC) No 479/2006 (Text with EEA relevance. ) Type: Implementing Regulation Subject Matter: food technology; means of agricultural production; health; marketing; iron, steel and other metal industries; agricultural activity Date Published: nan 15.12.2017 EN Official Journal of the European Union L 333/41 COMMISSION IMPLEMENTING REGULATION (EU) 2017/2330 of 14 December 2017 concerning the authorisation of Iron(II) carbonate, Iron(III) chloride hexahydrate, Iron(II) sulphate monohydrate, Iron(II) sulphate heptahydrate, Iron(II) fumarate, Iron(II) chelate of amino acids hydrate, Iron(II) chelate of protein hydrolysates and Iron(II) chelate of glycine hydrate as feed additives for all animal species and of Iron dextran as feed additive for piglets and amending Regulations (EC) No 1334/2003 and (EC) No 479/2006 (Text with EEA relevance) THE EUROPEAN COMMISSION, Having regard to the Treaty on the Functioning of the European Union, Having regard to Regulation (EC) No 1831/2003 of the European Parliament and of the Council of 22 September 2003 on additives for use in animal nutrition (1), and in particular Article 9(2) thereof, Whereas: (1) Regulation (EC) No 1831/2003 provides for the authorisation of additives for use in animal nutrition and for the grounds and procedures for granting such authorisation. Article 10 of that Regulation provides for the re-evaluation of additives authorised pursuant to Council Directive 70/524/EEC (2). (2) The iron compounds Ferric chloride hexahydrate, Ferric oxide, Ferrous carbonate, Ferrous chelate of amino acids hydrate, Ferrous chelate of glycine hydrate, Ferrous fumarate, Ferrous sulphate heptahydrate and Ferrous sulphate monohydrate were authorised without a time limit by Commission Regulation (EC) No 1334/2003 (3) and Commission Regulation (EC) No 479/2006 (4) in accordance with Directive 70/524/EEC. Those substances were subsequently entered in the Register of feed additives as existing products, in accordance with Article 10(1) of Regulation (EC) No 1831/2003. (3) In accordance with Article 10(2) of Regulation (EC) No 1831/2003 in conjunction with Article 7 thereof, applications were submitted for the re-evaluation of Ferric chloride hexahydrate, Ferric oxide, Ferrous carbonate, Ferrous chelate of amino acids hydrate, Ferrous chelate of glycine hydrate, Ferrous fumarate, Ferrous sulphate heptahydrate and Ferrous sulphate monohydrate as feed additives for all animal species. Additionally, in accordance with Article 7 of that Regulation, an application was submitted for Iron dextran as feed additive for piglets. The applicants requested that those additives be classified in the additive category nutritional additives. The applications were accompanied by the particulars and documents required under Article 7(3) of Regulation (EC) No 1831/2003. (4) Due to scientific considerations, the European Food Safety Authority (the Authority) recommended in its opinions of 19 June 2013 (5), 30 January 2014 (6), 5 March 2014 (7), 28 April 2014 (8) and 27 January 2016 (9) to rename Ferric as Iron(III) and Ferrous as Iron(II), in order to avoid potential misunderstandings. The Authority also recommended splitting Iron(II) chelate of amino acids into the following two groups, in view of its chemical characteristics: Iron(II) chelate of amino acids hydrate and Iron(II) chelate of protein hydrolysates. (5) The Authority concluded that, under the proposed conditions of use, Iron(II) carbonate, Iron(III) chloride hexahydrate, Iron(II) sulphate monohydrate, Iron(II) sulphate heptahydrate, Iron(II) fumarate, Iron(II) chelate of amino acids hydrate, Iron(II) chelate of protein hydrolysates and Iron(II) chelate of glycine hydrate do not have anadverse effect on animal health, consumer safety and the environment. Considering the capacities to be respiratory, eye and skin irritants due to the presence of Nickel in each iron (II) and iron (III) compound, appropriate protective measures should be taken with respect to the handling of the additives concerned and premixtures containing them, in order to avoid that safety concerns for the users would arise. (6) In its opinions of 24 January 2017 (10), the Authority concluded that, under the proposed conditions of use, Iron dextran does not have an adverse effect on animal health, consumer safety and the environment, and that no safety concerns for users would arise provided that appropriate protective measures are taken. (7) The Authority further concluded that Iron(II) carbonate, Iron(III) chloride hexahydrate, Iron(II) sulphate monohydrate, Iron(II) sulphate heptahydrate, Iron(II) fumarate, Iron(II) chelate of amino acids hydrate, Iron(II) chelate of protein hydrolysates, Iron(II) chelate of glycine hydrate and Iron dextran are effective sources of iron; however, the bioavailability of Iron(II) carbonate varies significantly and is considered to be lower than that for Iron(II) sulphate. The Authority does not consider that there is a need for specific requirements of post-market monitoring. It also verified the reports on the method of analysis of the feed additives in feed submitted by the Reference Laboratory set up by Regulation (EC) No 1831/2003. (8) The assessment of Iron(II) carbonate, Iron(III) chloride hexahydrate, Iron(II) sulphate monohydrate, Iron(II) sulphate heptahydrate, Iron(II) fumarate, Iron(II) chelate of amino acids hydrate, Iron(II) chelate of protein hydrolysates and Iron(II) chelate of glycine hydrate as feed additives for all animal species and of Iron dextran for piglets shows that the conditions for authorisation, as provided for in Article 5 of Regulation (EC) No 1831/2003, are satisfied, except for water for drinking. Accordingly, the use of these substances should be authorised as specified in the Annex to this Regulation and their use via water for drinking should be prohibited. (9) As a result of the granting new authorisations for Ferric chloride hexahydrate, Ferrous carbonate, Ferrous chelate of amino acids hydrate, Ferrous fumarate, Ferrous sulphate heptahydrate, Ferrous sulphate monohydrate and Ferrous chelate of glycine, hydrate by this Regulation and of the denial of the authorisation for Ferric oxide, the entries of these substances in Regulations (EC) No 479/2006 and (EC) No 1334/2003 should be deleted. (10) As the Authority could not conclude in its opinions of 24 May 2016 (11) on the safety of ferric oxide for the target species, the additive and feed containing it should be withdrawn from the market as soon as possible. For practical reasons, however, a limited transitional period should be allowed for the withdrawal from the market of the products concerned in order to enable operators to comply properly with the withdrawal obligation. (11) Since safety reasons do not require the immediate application of the modifications to the conditions of authorisation for Ferric chloride hexahydrate, Ferrous carbonate, Ferrous chelate of amino acids hydrate, Ferrous chelate of glycine hydrate, Ferrous fumarate, Ferrous sulphate heptahydrate and Ferrous sulphate monohydrate as authorised by Regulation (EC) No 1334/2003 and Regulation (EC) No 479/2006, it is appropriate to allow a transitional period for interested parties to prepare themselves to meet the new requirements resulting from the authorisation. (12) The measures provided for in this Regulation are in accordance with the opinion of the Standing Committee on Plants, Animals, Food and Feed, HAS ADOPTED THIS REGULATION: Article 1 Authorisation The substances specified in the Annex, belonging to the additive category nutritional additives and to the functional group compounds of trace elements, are authorised as feed additives in animal nutrition, subject to the conditions laid down in that Annex. Article 2 Special conditions of use The authorised substances specified in the Annex as additives belonging to the additive category nutritional additives and to the functional group compounds of trace elements shall not be used in water for drinking. Article 3 Denial The authorisation for ferric oxide is hereby denied and the substance shall no longer be used as nutritional feed additive. Article 4 Amendment to Regulation (EC) No 1334/2003 In the Annex to Regulation (EC) No 1334/2003, from the entry E1 on the element Iron-Fe the following additives, their chemical formulas and descriptions are deleted: Ferric chloride hexahydrate, Ferrous carbonate, Ferrous chelate of amino acids hydrate, Ferrous fumarate, Ferrous sulphate heptahydrate, Ferrous sulphate monohydrate and Ferric oxide. Article 5 Amendment to Regulation (EC) No 479/2006 In the Annex to Regulation (EC) No 479/2006, the entry E1 on the additive Ferrous chelate of glycine, hydrate is deleted. Article 6 Transitional measures 1. The substances Ferric chloride hexahydrate, Ferrous carbonate, Ferrous chelate of amino acids hydrate, Ferrous chelate of glycine hydrate, Ferrous fumarate, Ferrous sulphate heptahydrate, Ferric oxide and Ferrous sulphate monohydrate as authorised by Commission Regulation (EC) No 1334/2003 and Commission Regulation (EC) No 479/2006, and premixtures containing those substances, which are produced and labelled before 4 July 2018 in accordance with the rules applicable before 4 January 2018 may continue to be placed on the market and used until the existing stocks are exhausted. 2. Feed materials and compound feed containing the substances referred to in paragraph 1 which are produced and labelled before 4 January 2019 in accordance with the rules applicable before 4 January 2018 may continue to be placed on the market and used until the existing stocks are exhausted if they are intended for food-producing animals. 3. Feed materials and compound feed containing the substances referred to in paragraph 1 which are produced and labelled before 4 January 2020 in accordance with the rules applicable before 4 January 2018 may continue to be placed on the market and used until the existing stocks are exhausted if they are intended for non-food-producing animals. Article 7 Entry into force This Regulation shall enter into force on the twentieth day following that 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, 14 December 2017. For the Commission The President Jean-Claude JUNCKER (1) OJ L 268, 18.10.2003, p. 29. (2) Council Directive 70/524/EEC of 23 November 1970 concerning additives in feeding-stuffs (OJ L 270, 14.12.1970, p. 1). (3) Commission Regulation (EC) No 1334/2003 of 25 July 2003 amending the conditions for authorisation of a number of additives in feedingstuffs belonging to the group of trace elements (OJ L 187, 26.7.2003, p. 11). (4) Commission Regulation (EC) No 479/2006 of 23 March 2006 as regards the authorisation of certain additives belonging to the group compounds of trace elements (OJ L 86, 24.3.2006, p. 4). (5) EFSA Journal 2013;11(7):3287. (6) EFSA Journal 2014;12(2):3566. (7) EFSA Journal 2014;12(3):3607. (8) EFSA Journal 2015;13(5):4109. (9) EFSA Journal 2016;14(2):4396. (10) EFSA Journal 2017;15(2):4701. (11) EFSA Journal 2016;14(6):4508.
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 earliest event reported: November 1, 2007 AMR CORPORATION (Exact name of registrant as specified in its charter) Delaware 1-8400 75-1825172 (State of Incorporation) (Commission File Number) (IRS Employer Identification No.) 4333 Amon Carter Blvd. Fort Worth, Texas 76155 (Address of principal executive offices) (Zip code) (817) 963-1234 (Registrant's telephone number) (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)) EXPLANATORY NOTE This amendment to the current report on Form 8-K filed on October 31, 2007 is being filed due to an inadvertent error in that the speech at the Goldman Sachs Industrials Conference will be held at 11:25 AM ET, not at 11:25 PM ET, as previously filed.This amendment contains no other changes to the information provided in the initial filing. Item 7.01 Regulation FD Disclosure AMR PRESENTING AT INVESTOR CONFERENCE Tom Horton, Executive Vice President, Finance and Planning & CFO of AMR Corporation, will speak at the Goldman Sachs Industrials Conference on Wednesday, November 7, 2007, at approximately 11:25 AM ET. Mr. Horton’s presentation will focus on AMR's recent financial performance and the outlook for the future. A webcast of Mr. Horton’s remarks will be made available via the investor relations section of the American Airlines website at www.aa.com. Additionally, a replay of the speech will remain available for at least seven days following the event. SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. AMR CORPORATION /s/ Kenneth W. Wimberly Kenneth W. Wimberly Corporate Secretary Dated:November 1, 2007
Exhibit 10.11 8 July 2019 DBS Bank Ltd 12 Marina Boulevard Level 3, Marina Bay Financial Centre Tower 3 Singapore O18982 Merrill Lynch (Singapore) Pte. Ltd. 50 Collyer Quay #14-01 OUE Bayfront Singapore 049321 China International Capital Corporation (Singapore) Pte. Limited 6 Battery Road #33-01 South Lobby Singapore 049909 Credit Suisse (Singapore) Limited One Raffles Link #03/04-01 South Lobby Singapore 039393 Maybank Kim Eng Securities Pte. Ltd. 50 North Canal Road #03-01 Singapore 059304 Oversea-Chinese Banking Corporation Limited 63 Chulia Street #10-00 OCBC Centre East Singapore 049514 (collectively, the "Joint Bookrunners and Underwriters") Dear Sirs Offering Of Units in Prime US REIT 1. KBS REIT Holdings III, LLC ("KBS REIT Holdings III") wishes to restrict its right to deal in its effective interest in the units in Prime US REIT (the "Units") which KBS Real Estate Investment Trust III, Inc. legally and/or beneficially, directly or indirectly owns or will own, on the date of admission (the "Listing Date") of Prime US REIT to the Official List of Singapore Exchange Securities Trading Limited (the "KBS REIT Properties III LLC Lock-up Units"), in accordance with the terms in this letter agreement. Terms used, but not otherwise defined herein, have the meanings ascribed thereto in the final prospectus to be dated on or around 8 July 2019 and to be registered with the Monetary Authority of Singapore in connection with the Offering (the "Prospectus"). 2. In consideration of S$1.00, the receipt and sufficiency of which is hereby acknowledged, KBS REIT Holdings III undertakes to the Joint Bookrunners and Underwriters that it will not, subject to the exceptions set out in paragraph 3 below, without the prior written consent of the Joint Bookrunners and Underwriters (such consent not to be unreasonably withheld or delayed) during the period commencing from the date of issuance of the Units until the date falling six months after the Listing Date (both dates inclusive) (the "First Lock-up Period"), directly or indirectly: 537518-4-8536-v2.1 ‑ 1 ‑ 17-40684037 (a) purchase, lend, hypothecate, grant security over, encumber or otherwise dispose of or transfer, any or all of its effective interest in the KBS REIT Properties III LLC Lock-up Units (including any securities convertible into or exercisable or exchangeable for any KBS REIT Properties III LLC Lock-up Units or which carry rights to subscribe for or purchase any such KBS REIT Properties III LLC Lock-up Units); (b) enter into any swap, hedge or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the KBS REIT Properties III LLC Lock-up Units (including any securities convertible into or exercisable or exchangeable for any KBS REIT Properties III LLC Lock-up Units or which carry rights to subscribe for or purchase any such KBS REIT Properties III LLC Lock-up Units); (c) enter into any transaction (including a derivative transaction) or other arrangement with a similar economic effect to the foregoing sub-paragraph (a) or (b); (d) deposit any of its effective interest in the KBS REIT Properties III LLC Lock up Units (including any securities convertible into or exercisable or Units) in any depository receipt facility; (e) enter into a transaction which is designed or which may reasonably be expected to result in any of the above; or (f) publicly announce any intention to do any of the above, whether any such transaction described in sub-paragraphs (a) to (e) above is to be settled by delivery of such capital or securities, in cash or otherwise (whether or not such transaction will be completed within or after the First Lock-up Period or the period immediately following the First Lock-up Period until the date falling 12 months after the Listing Date (the "Second Lock-up Period")), and the same restrictions will apply in respect of its effective interest in 50.0% of the KBS REIT Properties III LLC Lock-up Units (adjusted for any bonus issue or subdivision) during the Second Lock up Period. 3. The above restrictions in paragraph 2 shall not apply to prohibit: (a) KBS REIT Holdings III from being able to create a charge over the KBS REIT Properties III LLC Lock-up Units or otherwise grant of security over or creation of any encumbrance over the KBS REIT Properties III LLC Lock-up Units, provided that such charge, security or encumbrance (i) cannot be enforced over any KBS REIT Properties III LLC Lock-up Units during the First Lock-up Period, and (ii) can only be enforced with respect to 50.0% of the effective interest in the KBS REIT Properties III LLC Lock-up Units during the Second Lock-up Period. The charge, security or encumbrance will only be created if the charge (such as a bank or financial institution) agrees that the charge, security or encumbrance over the KBS REIT Properties III LLC Lock-up Units cannot be enforced over 100.0% of the KBS REIT Properties III LLC Lock-up Unit during the First Lock-up Period and can only be enforced in relation to 50.0 % of the effective interest in the KBS REIT ‑ 2 ‑ 17-40684037 Properties III LLC Lock-up Units during the Second Lock-up Period; (b) KBS REIT Properties III LLC from entering into any unit lending agreement with the Joint Bookrunners and Underwriters or any sale or transfer of the KBS REIT Properties III LLC Lock-up Units by KBS REIT Properties III LLC pursuant to the exercise of an over-allotment option granted by the Unit Lender to the Joint Bookrunners and Underwriters; and (c) KBS REIT Holdings III from being able to transfer the KBS REIT Properties III LLC Lock-up Units to and between any direct and indirect wholly-owned subsidiaries of KBS Limited Partnership III, provided that KBS Limited Partnership III shall, during the First Lock-up Period, maintain a direct or indirect interest in 100.0% of the KBS REIT Properties III LLC Lock-up Units and, during the Second Lock-up Period, maintain a direct or indirect interest in 50.0% of the KBS REIT Properties III LLC Lock-up Units and KBS REIT Holdings III has procured that such transferee subsidiaries have executed and delivered to the Joint Bookrunners undertakings to the effect that such transferee subsidiaries will comply with such restrictions so as to enable KBS REIT Holdings III to comply with the foregoing restrictions for the unexpired period of the First Lock-up Period and the Second Lock-up Period. 4. For the avoidance of doubt, any Units returned to KBS REIT Properties III LLC pursuant to any unit lending agreement with the Joint Bookrunners and Underwriters shall be subject to the restrictions set out in this letter agreement as if they were KBS REIT Properties III LLC Lock-up Units. 5. If, for any reason, the Offering is not completed within six months of the date of the Prospectus, this letter agreement shall be terminated immediately. 6. A person who is not a party to this letter agreement shall have no rights under the Contracts (Rights of Third Parties) Act (Chapter 53B of Singapore) to enforce any term of this letter agreement. 7. This undertaking is given in favour of the Joint Bookrunners and Underwriters, and accordingly, may be enforced by the Joint Bookrunners and Underwriters. Without prejudice to any other rights or remedies which the Joint Bookrunners and Underwriters may have, we acknowledge and agree that damages may not be an adequate remedy for any breach of this undertaking and the Joint Bookrunners and Underwriters shall be entitled to seek the remedies of injunction, specific performance and other equitable relief for any threatened or actual breach of this undertaking. 8. This letter agreement is governed by, and shall be construed in accordance with, the laws of Singapore. 9. Both parties agree that the courts of Singapore are to have non-exclusive jurisdiction to settle any dispute (including claims for set-off and counter claims) which may arise in connection with the creation, validity, effect, interpretation, or performance of, or of legal relationships established by, this letter agreement or otherwise arising in connection with this letter agreement. ‑ 3 ‑ 17-40684037 Yours faithfully, KBS REIT HOLDINGS III LLC, a Delaware limited liability company By: KBS REAL ESTATE INVESTMENT TRUST III, INC., a Maryland corporation, its general partner By: /s/ Charles J. Schreiber, Jr. Charles J. Schreiber, Jr. Chief Executive Officer Endeavour – Singapore page to Lockup Letter
Name: Commission Regulation (EEC) No 295/80 of 8 February 1980 opening an invitation to tender for the mobilization of maize as food aid for the World Food Programme Type: Regulation Subject Matter: character(0) Date Published: nan No L 32/ 18 Official Journal of the European Communities 9 . 2 . 80 COMMISSION REGULATION (EEC) No 295/80 of 8 February 1980 opening an invitation to tender for the mobilization of maize as food aid for the World Food Programme Whereas the contract should be awarded to the tenderer who makes the best offer ; Whereas it must be made clear who is to bear any costs which arise in the event that for reasons of force majeure the operation in question is not completed within the time stipulated ; Whereas provision should be made for security to be given to guarantee fulfilment of the obligations arising by virtue of participation in the invitation to tender ; Whereas the French intervention agency should be made responsible for the tendering procedure in ques tion ; Whereas it is important that the Commission be informed without delay of the tenders submitted in response to the invitation and of those accepted by the intervention agency ; Whereas the measures provided for in this Regulation are in accordance with the opinion of the Manage ment Committee for Cereals , THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Economic Community, Having regard to Council Regulation (EEC) No 2727/75 of 29 October 1975 on the common organiza tion of the market in cereals ('), as last amended by Regulation (EEC) No 1 547/79 (*), Having regard to Council Regulation (EEC) No 2750/75 of 29 October 1975 laying down the condi tions for the mobilization of cereals as food aid (3 ), and in particular Article 6 thereof, Having regard to Council Regulation No 129 on the value of the unit of account and the exchange rates to be applied for the purposes of the common agricul tural policy (4), as last amended by Regulation (EEC) No 2543/73 (5 ), and in particular Article 3 thereof, Having regard to the opinion of the Monetary Committee, Whereas on 8 May 1979 the Council of the European Communities declared that by way of Community action it proposed to grant the World Food Programme 3 500 tonnes of maize under its 1978/79 food-aid programme ; Whereas, pursuant to Article 3 (3 ) of Council Regula tion (EEC) No 2750/75 , the goods may be purchased anywhere on the Community market ; Whereas tenders should be invited for the supply of the product to the port of shipment in the vicinity of the vessel , the goods to be set down at the place nomi nated by the recipient or its agent ; Whereas tenders may be submitted by tenderers esta blished in any Member State of the Community and may relate to products mobilized anywhere within those Member States ; whereas, in view of the currency situation in the Member States and in order to ensure that the tenders are as comparable as possible, account should be taken of the effect on each tender of the currency situation in the Member State in which the customs export formalities will be completed ; HAS ADOPTED THIS REGULATION : Article 1 1 . Tenders are hereby invited for the supply, by way of Community food-aid action to the World Food Programme, of 3 500 tonnes of maize . 2 . The tendering procedure shall take place in France in one lot . The product shall be mobilized on the Community market . The product shall be loaded for departure from any Community port . 3 . The product referred to in paragraph 1 is to be delivered in new jute sacks of a net capacity of 50 kilo grams to the port of shipment in the vicinity of the vessel . The goods must be set down at the place nomi nated by the recipient country or its agent, the timing of delivery being settled by the tenderer amd the recip ient country's agent . (') OJ No L 281 , 1 . 1 1 . 1975 , p. 1 . ( 2 ) OJ No L 188 , 26 . 7 . 1979 , p. 1 . ( 3 ) OJ No L 281 , 1 . 11 . 1975 , p. 89 . H OJ No 106 , 30 . 10 . 1962 , p. 2553 / 62 . ( s ) OJ No L 263 , 19 . 9 . 1973 , p. 1 . 9 . 2 . 80 Official Journal of the European Communities No L 32/ 19 Minimum weight of sacks shall be 600 grams . The following shall be printed on the sacks : 1 210 EM / Milho / Bissau / Dom da Comunidade EconÃ ²mica Europeia / Programa alimentar mundiaf . during a period from the Wednesday of one week to the Tuesday of the following week being the period immediately preceding the closing date for submission of tenders . Article 4 The contract shall be awarded to the tenderer offering the best terms, taking into consideration the adjust ment referred to in Article 3 (3 ). However, if the tenders submitted do not appear to reflect normal market prices and costs , the interven tion agency may cancel the invitation to tender. Article 5 If the tenderer is unable to deliver the goods in compliance with Article 1 (3 ) on the date given in the notice of invitation to tender as a result of the late availability of the vessels to be used for sea transporta tion , the resulting costs shall be borne by the interven tion agency . Article 6 1 . The tenderer shall give security in an amount of 6 ECU per tonne of goods . It shall be released : in the case of all tenderers whose tenders are unsuccessful or are not accepted , in the case of the successful tenderer, when the operations concerned have been carried out within the prescribed time limit and on submission of the original export licence duly granted and endorsed by the competent authorities of the Member State mentioned in the tender pursuant to Article 3 (2), in the case of the successful tenderer, for quanti ties not supplied by reason of force majeure. 2. The security required under paragraph 1 may be provided in the form of a cash deposit or of a guarantee issued by a credit institution conforming to criteria laid down by each Member State . Article 7 The maize referred to in Article 1 must be of fair and sound merchantable quality and correspond at least to the standard quality for which the intervention price is fixed . Article 8 1 . The French intervention agency shall be respon sible for organizing the invitation to tender provided for by this Regulation . To allow for the possibility of re-bagging, the successful tenderer shall supply 2 % of new empty sacks, of the same quality as those containing the goods but with the printing followed by a capital letter 'R'. Article 2 1 . The decision on tenders received in response to the invitation provided for in Article 1 shall be taken on 22 February 1980 . 2 . The closing date for submission of tenders shall be 22 February 1980 at 12 noon . 3 . The notice of invitation to tender shall be published in the Official Journal of the European Communities not less than nine days before the closing date for submission of tenders . Article 3 1 . The prices offered must be expressed in the currency of the Member State in which the invitation to tender was issued . 2 . Tenders must in particular mention the Member State in which the tenderer, in the event of his being declared successful , expects to complete the customs export formalities for the products concerned . 3 . For the purpose of rendering the tenders compar able, the prices shall be corrected by the monetary compensatory amount applicable on the closing date for submission of tenders to exports from the Member State mentioned in the tender pursuant to paragraph 2 . Such correction shall be made by : increasing prices which mention a Member State whose currency has depreciated , reducing prices which mention a Member State whose currency has been revalued . The monetary compensatory amount shall , where appropriate , be converted into the currency of the Member State in which the invitation to tender is issued using : in the case when the currencies concerned are kept at any given moment within a band of 2-25 % , a conversion rate resulting from their central rate , in the other cases , the average of the spot rates of the currencies concerned recorded in the Member State in which the invitation to tender is issued No L 32/20 Official Journal of the European Communities 9 . 2 . 80 2. It shall forthwith communicate to the Commis sion the list of firms which have responded to the invi tation to tender, specifying the terms of each tender, together with the name and business name of the successful tenderer . 3 . Where the customs export formalities for the mobilized product are completed in a Member State other than that in which the invitation to tender is issued, the intervention agency of the latter Member State shall be responsible for the operations following tendering, including payment to the successful tenderer . In such case, the intervention agency choosing the successful tenderer shall immediately inform the inter vention agency of the Member State concerned and shall supply it with all the information which it may require . Furthermore, the amount of the successful tender shall be paid after it has been converted using the average of the spot rates referred to in the second subparagraph of Article 3 (3 ) to the tenderer in the currency of the Member State in which the operations relating to the tendering are completed . 4 . The intervention agency shall request the successful tenderer to supply the following informa tion : (a) after shipment a certificate showing the quantities dispatched and the quality of the products ; (b) the date of departure of the ship ; (c) all possible contingencies which might occur during transportation of the products . The information indicated above shall be forwarded by the intervention agency to the Commission immediately upon receipt . 5 . When the intervention agency responsible for the operations relating to tendering is not the interven tion agency which appoints the successful tenderer, it shall send as soon as possible to the latter the informa tion necessary for releasing the security . Article 9 On delivery of the goods at the port of shipment, a handing-over certificate shall be supplied to the successful tenderer, acting as agent for the Commu nity, by the agent of the recipient country, or, in the absence of the latter, by the intervention agency of the Member State in whose territory the port of shipment is situated . Article 10 This Regulation shall enter into force on the day of 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 , 8 February 1980 . For the Commission Finn GUNDELACH Vice-President
EXHIBIT 10.7 REVOLVING LOAN NOTE THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE TERMS AND PROVISIONS OF THE CREDIT AGREEMENT REFERRED TO BELOW. TRANSFERS OF THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MUST BE RECORDED IN THE REVOLVING LOAN REGISTER MAINTAINED BY THE ADMINISTRATIVE AGENT PURSUANT TO THE TERMS OF SUCH CREDIT AGREEMENT. $1,213,872.83 Boston, Massachusetts May 23, 2012 FOR VALUE RECEIVED, the undersigned, Global Telecom & Technology, Inc., a Delaware corporation (“GTTI”), Global Telecom & Technology Americas, Inc., a Virginia corporation (“GTTA”), Packetexchange (USA), Inc., a Delaware corporation (“PEUSA”), Packetexchange, Inc., a Delaware corporation (“PEINC”), WBS Connect LLC, a Colorado limited liability company (“WBS”), nLayer Communications, Inc., an Illinois corporation (“NLAYER”) (GTTI, GTTA, PEUSA, PEINC, WBS and NLAYER are hereinafter referred to, individually, as a “Borrower” and collectively, jointly and severally, as the “Borrowers”), each hereby, jointly and severally, unconditionally promise to pay to WEBSTER BANK (the “Lender”) or its registered assigns at the Funding Office specified in the Credit Agreement (as hereinafter defined) in Dollars and in immediately available funds, on the Revolving Termination Date the principal amount of (a) ONE MILLION TWO HUNDRED THIRTEEN THOUSAND EIGHT HUNDRED SEVENTY-TWO DOLLARS AND EIGHTY-THREE CENTS ($1,213,872.83), or, if less, (b) the aggregate unpaid principal amount of all Revolving Loans made by the Lender to the Borrowers pursuant to Section 2.5 of the Credit Agreement. Each Borrower further agrees to pay interest in like money at such office on the unpaid principal amount hereof from time to time outstanding at the rates and on the dates specified in the Credit Agreement. The holder of this Note is authorized to indorse on the schedules annexed hereto and made a part hereof or on a continuation thereof which shall be attached hereto and made a part hereof the date and amount of each Revolving Loan made pursuant to the Credit Agreement and the date and amount of each payment or prepayment of principal thereof. Each such indorsement shall constitute prima facie evidence of the accuracy of the information indorsed. The failure to make any such indorsement or any error in any such indorsement shall not affect the obligations of any Borrower in respect of any Revolving Loan. This Note (a) is one of the Revolving Loan Notes referred to in the Credit Agreement, dated as of May 23, 2012, among the Borrowers, the Guarantors party thereto, the Lenders party thereto, and Silicon Valley Bank, as Administrative Agent, Issuing Lender and Swingline Lender (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), (b) is subject to the provisions of the Credit Agreement and (c) is subject to optional and mandatory prepayment in whole or in part as provided in the Credit Agreement. This Note is secured and guaranteed as provided in the Loan Documents. Reference is hereby made to the Loan Documents for a description of the properties and assets in which a security interest has been granted, the nature and extent of the security and the guarantees, the terms and conditions upon which the security interests and each guarantee were granted and the rights of the holder of this Note in respect thereof. Upon the occurrence and during the continuance of any one or more of the Events of Default, all principal and all accrued interest then remaining unpaid on this Note shall become, or may be declared to be, immediately due and payable, all as provided in the Credit Agreement. All parties now and hereafter liable with respect to this Note, whether maker, principal, surety, guarantor, indorser or otherwise, hereby waive presentment, demand, protest and all other notices of any kind. Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN OR IN THE CREDIT AGREEMENT, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT PURSUANT TO AND IN ACCORDANCE WITH THE REGISTRATION AND OTHER PROVISIONS OF SECTION 10.6 OF THE CREDIT AGREEMENT. THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. [SIGNATURE PAGES FOLLOW] GLOBAL TELECOM & TECHNOLOGY, INC., as a Borrower By /s/ Richard D. Calder, Jr. Name: Richard D. Calder, Jr. Title: President and Chief Executive Officer GLOBAL TELECOM & TECHNOLOGY AMERICAS, INC., as a Borrower Jr. WBS CONNECT LLC, as a Borrower Jr. PACKETEXCHANGE, INC., as a Borrower Jr. PACKETEXCHANGE (USA), INC., as a Borrower Jr. NLAYER COMMUNICATIONS, INC., as a Borrower Jr. Signature Page to Webster Revolving Loan Note Schedule A to Revolving Loan Note LOANS, CONVERSIONS AND REPAYMENTS OF ABR LOANS Date Amount of ABR Loans Amount Converted to ABR Loans Amount of Principal of ABR Loans Repaid Amount of ABR Loans Converted to Eurodollar Loans Unpaid Principal Balance of ABR Loans Notation Made By Schedule B to Revolving Loan Note LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS Date Amount of Eurodollar Loans Amount Converted to Eurodollar Loans Interest Period and Eurodollar Rate with Respect Thereto Amount of Principal of Eurodollar Loans Repaid Amount of Eurodollar Loans Converted to ABR Loans Unpaid Principal Balance of Eurodollar Loans Notation Made By
Exhibit 99.2 Execution Copy STOCKHOLDERS AGREEMENT July 19, 2011 STOCKHOLDERS AGREEMENT This STOCKHOLDERS AGREEMENT, dated as of July 19, 2011 (this “Agreement”), is entered into by and between AMAG Pharmaceuticals, Inc. (the “Company”) and Warburg Pincus Private Equity VIII, L.P. (the “Stockholder”). WHEREAS, concurrently herewith, the Company, Alamo Acquisition Corp., a Delaware corporation and wholly-owned subsidiary of the Company (“Merger Sub”), and Allos Therapeutics, Inc. (“Allos”) have entered into an Agreement and Plan of Merger and Reorganization (the “Merger Agreement”), dated the date hereof, pursuant to which, subject to satisfaction or waiver of the conditions therein, Merger Sub will merge with and into Allos (the “Merger”), and the Company will issue shares of its Common Stock, par value $0.01 per share (the “Shares”), to the Stockholder; WHEREAS, upon consummation of the Merger, the Stockholder will Beneficially Own Shares; WHEREAS, the parties believe that it is in the best interests of the Company and the Stockholder to provide for certain rights and obligations of the parties with respect to various corporate matters of the Company following the Merger; and WHEREAS, the Merger Agreement contemplates that this Agreement will be executed concurrently with the execution of the Merger Agreement, with its provisions to become effective upon consummation of the Merger. NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements of the parties hereto contained herein, and other good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, and subject to the satisfaction or waiver of the conditions hereof, the parties hereto agree as follows: ARTICLE I. INTRODUCTORY MATTERS 1.1.Defined Terms. In addition to the terms defined elsewhere herein, the following terms have the following meanings when used herein with initial capital letters: “13D Group” means a “group” as such term is used in Section 13(d)(3) of the Exchange Act. “AAA” has the meaning given to that term in Section 4.8 of this Agreement. “Allos Stock” means all shares of Allos’ capital stock authorized, issued or outstanding prior to the consummation of the Merger, of whatever class or series, including all of the Common Stock, $.0001 par value per share, of Allos. 1. “Affiliate” has the meaning given to that term in Rule 405 promulgated under the Securities Act. “Agreement” means this Agreement, as the same may be amended, supplemented or otherwise modified from time to time in accordance with the terms hereof. “Amendment Effectiveness Deadline Date” has the meaning given to that term in Section 2.3(a) of this Agreement. “Beneficial Owner,” “Beneficially Own,” “Beneficial Ownership” and words of similar import have the meanings ascribed to such terms in Rule 13d-3 under the Exchange Act.Securities “Beneficially Owned” by a Person includes securities “Beneficially Owned” by all other Persons with whom such Person would constitute a 13D Group with respect to securities of the same issuer. “Board” means the Board of Directors of the Company. “Business Day” means a day other than a Saturday, Sunday, federal or Massachusetts or California state holiday, or other day on which commercial banks in Massachusetts or California are authorized or required by law to close. “Closing Date” has the meaning set forth in the Merger Agreement. “Common Stock” means the Common Stock, par value $0.01 per share, of the Company. “Control,” “Controlled,” “Controlling,” and “Under Common Control With” have the meanings ascribed to such terms in Rule 12b-2 under the Exchange Act. “Deferral Notice” has the meaning given to that term in Section 2.1(e)(ii) of this Agreement. “Deferral Period” has the meaning given to that term in Section 2.1(e)(ii) of this Agreement. “Effectiveness Deadline” means (i) if the Company is notified by the SEC that the Registration Statement will not be reviewed, the Effectiveness Deadline as to such Registration Statement shall be the fifth (5th)Business Day following the date that such notice is received by the Company; and (ii) if the Company is notified by the SEC that the Registration Statement will be reviewed and thereafter the Company is notified that the Registration Statement is no longer subject to further review and comments, the Effectiveness Deadline as to such Registration Statement shall be the fifth (5th)Business Day following the date on which the Company is so notified so long as such date shall not be after seventy-five (75) days after the Filing Date; provided, further, that if (i)the Effectiveness Deadline falls on a Saturday, Sunday or other day that the SEC is closed for business, the Effectiveness Deadline shall be extended to the next Business Day on which the SEC is open for business or (ii)the Effectiveness Deadline falls on a date on which the Registration Statement is not eligible to be declared effective under applicable rules and regulations of the Commission, the Effectiveness Deadline shall be extended to the first 2. Business Day on which such Registration Statement is so eligible to be declared effective by the Commission; “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder, as the same may be amended from time to time. “Filing Date” means, with respect to the Registration Statement required pursuant to Section 2.1, the 10th calendar day following the Closing Date. “Free Writing Prospectus” means any “free writing prospectus” as defined in Rule 405 promulgated under the Securities Act. “Governmental Body” means any: (a) nation, state, commonwealth, province, territory, county, municipality, district or other jurisdiction of any nature; (b) federal, state, local, municipal, foreign or other government; (c) governmental or quasi-governmental authority of any nature (including any governmental division, department, agency, commission, instrumentality, official, ministry, fund, foundation, center, organization, unit, body or entity and any court or other tribunal); or (d) self-regulatory organization (including the NASDAQ Global Market and the NASDAQ Global Select Market). “Holder” shall mean (i) the Stockholder and (ii) to the extent any Registrable Securities are transferred or assigned by such Stockholder and such transferee or assignee is entitled to the registration rights provided under Article II, such transferee or assignee. “Holders Counsel” has the meaning given to that term in the definition of “Registration Expenses”. “Indemnified Parties” has the meaning given to that term in Section 2.5 of this Agreement. “Lien” means, with respect to any property or asset, any mortgage, pledge, security interest, lien (statutory or other), charge, encumbrance or other similar restrictions or limitations of any kind or nature whatsoever on or with respect to such property or asset. “Merger” has the meaning given to that term in the recitals of this Agreement. “Merger Agreement” has the meaning given to that term in the recitals of this Agreement. “NASDAQ Stock Market” has the meaning given to that term in Section 2.1(d) of this Agreement. “Other Stockholders” has the meaning given to that term in Section 2.5(b) of this Agreement. “Person” means any individual, corporation, limited liability company, partnership, trust, joint stock company, business trust, unincorporated association, joint venture, governmental authority or other legal entity of any nature whatsoever. 3. “Register”, “Registered” and “Registration” shall mean a registration effected by preparing and filing a Registration Statement in compliance with the Securities Act (and any post-effective amendments filed or required to be filed) and the declaration or ordering of effectiveness of such Registration Statement. “Registrable Securities” means (i) the Shares issued to the Stockholder under the Merger Agreement, (ii) any other Shares acquired by the Stockholder and (iii) any Shares issued (or issuable upon the conversion or exercise of any warrant, right, option or other convertible security which is issued as) as a dividend, stock split or other distribution, recapitalization or reclassification with respect to, or in exchange for, or in replacement of, such Shares.Shares will cease to be Registrable Securities when (A) a Registration Statement covering such Registrable Securities has been declared effective and such Registrable Securities have been disposed of pursuant to such effective Registration Statement, (B) such Registrable Securities shall have been offered and sold pursuant to Rule 144 or Rule 145 (or any similar provisions then in effect) under the Securities Act, (C) all Registrable Securities held by the Stockholder, any transferee, or any assignee (as the case may be) are eligible for transfer to the public pursuant to Rule 144 or Rule 145 (or any similar provisions then in effect) under the Securities Act without any effective limitations on the volume of Registrable Securities to be sold under Rule 144 or Rule 145 or are otherwise freely transferable to the public without restriction under the Securities Act, (D) such Registrable Securities are Transferred by a Person in a transaction in which rights under the provisions of this Agreement are not assigned in accordance with this Agreement, or (E) such Registrable Securities cease to be outstanding. “Registration Expenses” shall mean all expenses incurred by the Company in compliance with Section 2.1 hereof, including, without limitation, all registration and filing fees, printing expenses (including, without limitation, printing certificates, if applicable, and prospectuses), messenger and delivery services and telephone expenses, fees and disbursements of counsel for the Company, fees and expenses of one counsel retained by the Holders of a majority of the Registrable Shares to be included in the Registration Statement (together with any separate local counsel reasonably retained by such law firm, “Holders Counsel”); provided such fees of Holders Counsel shall not exceed fifty thousand dollars ($50,000) in the aggregate, all application and filing fees in connection with listing on a national securities exchange or automated quotation system, all fees and expenses of compliance with federal securities and state “blue sky” or securities laws, all fees and disbursements of independent certified public accountants of the Company (including, without limitation, the expense of any special audits incident to or required by such performance), and all fees and expenses of all other Persons retained by the Company in connection with the consummation of the transactions contemplated by this Agreement, but excluding the compensation of regular employees of the Company, which shall be paid in any event by the Company. “Registration Statement” means a registration statement required to be filed hereunder, including pre- and post-effective amendments, all exhibits thereto, and all material incorporated by reference or deemed to be incorporated by reference in the registration statement, together with any registration statement to replace such registration statement upon expiration thereof, if any. 4. “Rule 415 Limitation” has the meaning given to that term in Section 2.1(a) of this Agreement. “SEC” means the Securities and Exchange Commission. “SEC Guidance”shall mean (i) any publicly available written or oral guidance, comments, requirements or requests of the SEC staff and (ii) the Securities Act. “Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder, as the same may be amended from time to time. “Shares” has the meaning given to that term in the recitals to this Agreement. “Shelf Registration” has the meaning given to that term in Section 2.1(a) of this Agreement. “Shelf Registration Period” has the meaning given to that term in Section 2.1(b) of this Agreement. “Stockholder” has the meaning given to that term in the recitals to this Agreement. “Subsidiary” shall mean, in respect of any specified Person, any corporation or other entity of which 50% or more of the outstanding share capital or other equity interest is owned, directly or indirectly, by such specified Person. “Transfer” means, with respect to any Share (or direct or indirect economic or other interest therein), a transfer, distribution, sale, gift, assignment, pledge, hypothecation or other disposition, whether directly or indirectly (pursuant to the creation of a derivative security or otherwise), the grant of an option or other right or the imposition of a restriction on disposition or voting or by operation of law.When used as a verb, “Transfer” shall have the correlative meaning.In addition, “Transferred” and “Transferee” shall have the correlative meanings. “Valid Business Reason” means a determination by the Board in good faith that (a) offers or sales under the Registration Statement and any prospectus and/or supplement relating thereto would interfere with any material financing, acquisition, corporate reorganization or merger or other material transaction involving the Company or (b) the Company is in possession of material non-public information disclosure of which would be detrimental to the business and affairs of the Company in any material respect and that Registration Statement and any prospectus and/or supplement relating thereto would be materially misleading absent the inclusion of such information. 5. ARTICLE II. REGISTRATION RIGHTS 2.1.Shelf Registration. (a)On or prior to the Filing Date, the Company shall prepare and file with the SEC a “shelf” Registration Statement covering the resale of all Registrable Securities.Such Registration Statement shall be on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form in accordance herewith) relating to the offer and sale of the Registrable Securities by the Holders thereof from time to time in accordance with the methods of distribution set forth in the Registration Statement (such “Plan of Distribution” attached hereto as Annex A (as it may be modified in response to SEC comments)) and Rule 415 under the Securities Act, together with any registration statement to replace such registration statement upon expiration thereof, if any, (hereinafter the “Shelf Registration”).Subject to the terms of this Agreement, the Company shall use its commercially reasonable efforts to cause the Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof but in any event no later than the Effectiveness Deadline.The Company shall use commercially reasonable efforts to address any comments from the SEC regarding such Registration Statement and to advocate with the SEC for the registration of all Registrable Securities in accordance with SEC Guidance.Notwithstanding the foregoing, if the SEC prevents the Company from including any or all of the Registrable Securities on the Registration Statement due to limitations on the use of Rule 415 of the Securities Act for the resale of the Registrable Securities by the Holders (a “Rule 415 Limitation”) or otherwise, the Registration Statement shall register the resale of a number of Shares which is equal to the maximum number of shares as is permitted by the SEC, and, subject to the provisions of this Section 2.1, the Company shall continue to use its commercially reasonable efforts to register all remaining Registrable Securities as set forth in this Article II.In such event, the number of Shares to be registered for each Holder in the Registration Statement shall be reduced pro rata among all Holders.The Company shall continue to use its commercially reasonable efforts to register all remaining Registrable Securities as promptly as practicable in accordance with the applicable rules, regulations and guidance of the SEC. (b)The Company shall use its commercially reasonable efforts to keep the Registration Statement continuously effective under the Securities Act in order to permit the prospectus included therein to be lawfully delivered by the Holders of the Registrable Securities included therein until the later of (1) all Registrable Securities covered by the Registration Statement having been sold and (2) such time as there are no Registrable Securities.However, in no event shall the Registration Statement be kept effective for more than three years from the date such Registration Statement becomes effective.Such period during which the Registration Statement shall remain effective shall be referred to herein as the “Shelf Registration Period”.The Company shall be deemed not to have used its commercially reasonable efforts to keep the Registration Statement effective during the Shelf Registration Period if it voluntarily takes any action that would directly result in Holders of Registrable Securities covered thereby not being able to offer and sell such Registrable Securities during such period, unless such action is required by applicable law or except as provided in Section 2.1(e). 6. (c)Notwithstanding any other provisions of this Agreement to the contrary, the Company shall cause (i) the Registration Statement (as of the effective date of the Registration Statement), any amendment thereof (as of the effective date thereof) or supplement thereto (as of its date), (A) to comply in all material respects with the applicable requirements of the Securities Act, the rules and regulations of the SEC and SEC Guidance and (B) not to contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, and (ii) any related prospectus, preliminary prospectus or Free Writing Prospectus and any amendment thereof or supplement thereto, as of its date, (A) to comply in all material respects with the applicable requirements of the Securities Act, the rules and regulations of the SEC and SEC Guidance and (B) not to contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, the Company shall have no such obligations or liabilities with respect to any written information pertaining to any Holder and furnished in writing to the Company by or on behalf of such Holder specifically for inclusion therein. (d)The Company shall use its commercially reasonable efforts to cause the Registrable Securities included in the Registration Statement to be, upon resale thereunder, listed on the NASDAQ Global Select Market (“NASDAQ Stock Market”) or, if the Common Stock is not then listed on the NASDAQ Stock Market, on the principal national securities exchange on which the Common Stock is then listed, or if the Common Stock is not then listed on a national securities exchange, authorized for quotation on any automated quotation system on which the Common Stock is then quoted. (e)If (A) the SEC issues a stop order suspending the effectiveness of the Registration Statement or initiates proceedings with respect to the Registration Statement under Section 8(d) or 8(e) of the Securities Act or (B) the Board, in its good faith judgment, determines that the registration of Registrable Securities pursuant to this Section 2.1 should be delayed (with respect to the initial filing) or offers and/or sales of Registrable Securities suspended because of a Valid Business Reason: (i)in the case of clause (A) above, subject to clause (ii) below, as promptly as practicable, the Company shall prepare and file, if necessary pursuant to applicable law, a post-effective amendment to such Registration Statement or a supplement to the related prospectus or any document incorporated therein by reference or file any other required document that would be incorporated by reference into such Registration Statement and related prospectus so that (1) such Registration Statement does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and (2) such prospectus does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, and, in the case of a post-effective amendment to the Registration Statement, subject to the next sentence, use commercially reasonable efforts to cause it to be declared effective as promptly as is practicable; and 7. (ii)the Company shall promptly notify the Holders in writing that the availability of the Registration Statement is suspended(a “Deferral Notice”) and, subject to Section 2.1(e)(iii) below, the expected duration of the suspension (such period during which the availability of the Registration Statement and any related prospectus is suspended, a “Deferral Period”).Upon receipt of any Deferral Notice, the Holders shall immediately suspend making any offers or sales pursuant to the Registration Statement until such Holder’s receipt of copies of the supplemented or amended prospectus provided for in clause (A) above, or until it is advised in writing by the Company that the prospectus may be used, and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in such prospectus. (iii)The Company will use its commercially reasonable efforts to ensure that the use of the prospectus with respect to such Registration Statement may be resumed (x) in the case of clause (A) above, as promptly as is practicable and (y) in the case of clause (B) above, as soon as, in the reasonable good faith judgment of the Company there is no Valid Business Reason to continue such suspension and postponement.The Company shall give written notice to the Holders of the termination of the Deferral Period promptly (and in any event within five business days) thereafter.Notwithstanding anything to the contrary contained herein, in no event shall (A) a single suspension arising from a Valid Business Reason exceed thirty (30) consecutive days, (B) the aggregate duration of all such suspensions arising from a Valid Business Reason exceed sixty (60) days in any twelve (12) month period or (C) a suspension arising from a single Valid Business Reason be invoked more than once in any twelve (12) month period. 2.2.Expenses of Registration.All Registration Expenses incurred in connection with the registration, qualification or compliance pursuant to this Section 4 shall be borne by the Company, whether or not any Registrable Securities are sold pursuant to a Registration Statement.The Company will bear its internal expenses (including, without limitation, all salaries and expenses of its officers and employees performing legal or accounting duties), the expenses of any annual audit and “comfort” letters and the fees and expenses of any person, including special experts, retained by the Company. 2.3.Registration Procedures.In the case of each registration effected by the Company pursuant to this Article II, the following provisions shall apply: (a)At the time the SEC declares such Registration Statement effective, each Holder shall be named as a selling security holder in such Registration Statement and the related prospectus in such a manner as to permit such Holder to deliver such prospectus to purchasers of Registrable Securities included in the Registration Statement in accordance with applicable law, subject to the terms and conditions hereof.From and after the date a Registration Statement is declared effective, the Company shall, as promptly as practicable and in any event no later than (x) the fifth (5th) Business Day after such date or (y) the fifth (5th) Business Day after the expiration of any Deferral Period that is either in effect or put into effect within five (5) Business Days of such date: (i)if required by applicable law, prepare and file with the SEC a post-effective amendment to the Registration Statement or prepare and, if required by applicable law, 8. file a supplement to the related prospectus or a supplement or amendment to any document incorporated therein by reference or file with the SEC any other required document so that the Holder is named as a selling security holder in the Registration Statement and the related prospectus in such a manner as to permit such Holder to deliver such prospectus to purchasers of such Holder’s Registrable Securities included in the Registration Statement in accordance with applicable law and, if the Company shall file a post-effective amendment to the Registration Statement, use its commercially reasonable efforts to cause such post-effective amendment to be declared effective under the Securities Act as promptly as is practicable, but in any event by the date (the “Amendment Effectiveness Deadline Date”) that is sixty (60) days after the date such post-effective amendment is required by this clause to be filed; (ii)provide such Holder copies of any documents filed pursuant to Section 2.3(a)(i); and (iii)notify such Holder as promptly as practicable after the effectiveness under the Securities Act of any post-effective amendment filed pursuant to Section 2.3(a)(i); provided, that if the request by such Holder is delivered during a Deferral Period, the Company shall so inform the Holder making such request and shall take the actions set forth in clauses (i), (ii) and (iii) above upon expiration of the Deferral Period in accordance with this Section 2.3(a) and Section 2.1(e) of this Agreement. (b)The Company shall notify the Holders of the Registrable Securities included within the coverage of the Registration Statement (which notice may, at the discretion of the Company (or as required pursuant to Section 2.1(e) state that it constitutes a Deferral Notice, in which event the provisions of Section 2.1(e) shall apply): (i)when the Registration Statement or any amendment thereto has been filed with the SEC and when the Registration Statement or any post-effective amendment thereto has become effective; (ii)of any request by the SEC for amendments or supplements to the Registration Statement or the prospectus included therein or for additional information; (iii)of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose and of any other action, event or failure to act that would cause the Registration Statement not to remain effective; (iv)of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any Registrable Securities for sale in any jurisdiction or the initiation of any proceeding for such purpose; and (v)of the occurrence of any Valid Business Reason. (c)The Company shall use its commercially reasonable efforts to obtain the withdrawal at the earliest possible time of any stop order suspending the effectiveness of theRegistration Statement and the elimination of any other impediment to the continued effectiveness of the Registration Statement. 9. (d)The Company shall promptly furnish to each Holder of Registrable Securities included within the coverage of the Shelf Registration, without charge, if the Holder so requests in writing, at least one conformed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules and all exhibits thereto (excluding those, if any, incorporated by reference). (e)The Company shall promptly furnish to each Holder of Registrable Securities included within the coverage of the Shelf Registration, without charge, such number of prospectuses and other documents incident thereto, including but not limited to any amendment thereof or supplement thereto and any Free Writing Prospectus used in connection therewith, as each of the Holders, as applicable, from time to time may reasonably request.The Company consents, subject to the provisions of this Agreement and except during such periods that a Deferral Notice is outstanding and has not been revoked, to the use of the prospectus and each amendment or supplement thereto and any Free Writing Prospectus used in connection therewith by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by the prospectus, or any amendment or supplement thereto, included in the Registration Statement. (f)The Company shall use commercially reasonable efforts to register or qualify, or cooperate with the Holders of the Registrable Securities included in the Registration Statement and their respective counsel in connection with the registration or qualification of, the resale of the Registrable Securities under the securities or “blue sky” laws of such states of the United States as any Holder requests in writing and to do any and all other acts or things necessary or advisable to enable the offer and sale in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided, however, that the Company shall not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified or (ii) take any action that would subject it to general service of process or to taxation in any jurisdiction to which it is not then so subject. (g)Unless any Registrable Securities shall be in book-entry form only, if requested by the Holders, the Company shall cooperate with the Holders of the Registrable Securities to facilitate the timely preparation and delivery of certificates representing the Registrable Securities to be delivered to a transferee pursuant to the Registration Statement, which certificates shall be free of any restrictive legends and in such denominations and registered in such names as the Holders may request. (h)The Company will comply with all rules and regulations of the SEC to the extent and so long as they are applicable to the Shelf Registration and will make generally available to its security holders (or otherwise provide in accordance with Section 11(a) of the Securities Act) an earnings statement satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder, no later than 45 days after the end of a 12-month period (or 90 days, if such period is a fiscal year) beginning with the first month of the Company’s first fiscal quarter commencing after the effective date of the Registration Statement, which statement shall cover such 12-month period. (i)If requested in writing in connection with a disposition of Registrable Securities pursuant to a Registration Statement, the Company shall make reasonably available for inspection during normal business hours by a representative for the holders of a majority of the number of such Registrable Securities, any broker-dealers, attorneys and accountants retained by such holders, and any attorneys or other agents retained by a broker-dealer engaged by such holders, all relevant financial and other records and pertinent corporate documents and properties of the Company and its subsidiaries, and cause the appropriate officers, directors and employees of the Company and its subsidiaries to make reasonably available for inspection during normal business hours on reasonable notice all relevant information reasonably requested by such representative for the Holders, or any such broker-dealers, attorneys or accountants in connection with such disposition, in each case as is customary for similar “due diligence” examinations; provided, that such persons shall first agree in writing with the Company that any information that is reasonably and in good faith designated by the Company in writing as confidential at the time of delivery of such information shall be kept confidential by such persons and shall be used solely for the purposes of exercising rights under this Agreement, unless (i) disclosure of such information is required by court or administrative order or is necessary to respond to inquiries of regulatory authorities, (ii) disclosure of such information is required by law (including any disclosure requirements pursuant to federal securities laws in connection with the filing of the Registration Statement or the use of any prospectus or Free Writing Prospectus referred to in this Agreement) or (iii) such information becomes generally available to the public other than as a result of a disclosure or failure to safeguard by any such person, and provided further that the foregoing inspection and information gathering shall, to the greatest extent possible, be coordinated on behalf of all the Holders and the other parties entitled thereto by Holders Counsel. (j)The Company shall (i) permit Holders Counsel to review and comment upon (A) a Registration Statement at least five (5) Business Days prior to its filing with the SEC and (B) all Free Writing Prospectuses and all amendments and supplements to all Registration Statements within a reasonable number of days prior to their filing with the Commission, and (ii) not file any Registration Statement or amendment thereof or supplement thereto or any Free Writing Prospectus in a form to which the Holders holding a majority of the Registrable Securities reasonably objects.The Company shall furnish to Holders Counsel, without charge, (x) copies of any correspondence from the SEC or the staff of the SEC to the Company or its representatives relating to any Registration Statement, (y) promptly after the same is prepared and filed with the Commission, one copy of any Registration Statement and any amendment(s) thereto, including financial statements and schedules, if requested by a Holder, and all exhibits; and (z) promptly upon the effectiveness of any Registration Statement, one copy of the prospectus included in such Registration Statement and all amendments and supplements thereto.The Company shall reasonably cooperate with such Holders Counsel in performing the Company’s obligations pursuant to this Section 2.For the avoidance of doubt, in no event shall the Company have any obligation to permit the Holders or any counsel to Holders to review and/or comment on any of the Company’s filings under the Exchange Act, including without limitation Forms 10-K, 10-Q and 8-K. (k)If reasonably requested by a Holder, the Company shall as soon as practicable (i) incorporate in a prospectus supplement or post-effective amendment such information as such Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) supplement or make amendments to any Registration Statement if reasonably requested byHolders of a majority in interest of Registrable Securities participating in such registration. 2.4.Information by the Holders. (a)The Company may require any Holder holding securities included in any registration to furnish to the Company in writing such information regarding such Holder and pertinent to the disclosure requirements relating to the registration and the distribution of the Registrable Securities as the Company may from time to time reasonably request in writing. (b)In the event that, either immediately prior to or subsequent to the effectiveness of any registration statement, any Holder shall distribute Registrable Securities to its partners, such Holder shall so advise the Company and the Company shall be authorized to file an amendment to such registration statement or prospectus supplement to remove such partners, as selling security holders. 2.5.Indemnification. (a)The Company will indemnify each of the Holders, as applicable, each of its officers, directors, partners and Affiliates, and each Person controlling each of the Holders, with respect to the registration which has been effected pursuant to this Section 4 against all claims, losses, damages and liabilities (or actions in respect thereof) arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any prospectus, offering circular or other document (including any related Registration Statement, notification or the like) incident to any such registration, qualification or compliance, or based on any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or any violation by the Company of the Securities Act or the Exchange Act or any rule or regulation thereunder applicable to the Company and relating to action or inaction required of the Company in connection with any such registration, qualification or compliance (collectively a “Violation”), and will reimburse each of the Holders, each of its officers, directors and partners, and each Person controlling each of the Holders for any legal and any other expenses reasonably incurred in connection with investigating and defending any such claim, loss, damage, liability or action; provided that the Company will not be liable in any such case to the extent that any such claim, loss, damage, liability or expense arises out of or is based on any untrue statement or omission based upon written information furnished to the Company by the Holders and stated to be specifically for use therein; provided, further, that the indemnity agreement contained in this Section 2.5(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without the consent of the Company, which consent shall not be unreasonably withheld.Notwithstanding the foregoing, in no event shall the Company be liable for any Violation relating to an offer or sale of Registrable Securities covered by the Registration Statement to the extent such offer or sale occurred during a Deferral Period. (b)Each of the Holders will, if Registrable Securities held by it are included in the securities as to which such registration, qualification or compliance is being effected, indemnify the Company, each of its directors and officers, Affiliates, and each person who controls the Company against all claims, losses, damages and liabilities (or actions in respect thereof) arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any such Registration Statement, prospectus, supplement, or other document made by such Holder, or any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements by such Holder therein not misleading, and will reimburse the Company such directors, officers, partners, persons, or control persons for any legal or any other expenses reasonably incurred in connection with investigating and defending any such claim, loss, damage, liability or action, in each case to the extent, but only to the extent, that such untrue statement (or alleged untrue statement) or omission (or alleged omission) is made in such Registration Statement, prospectus, supplement or other document, or such violation is made, in reliance upon and in conformity with written information furnished to the Company by such Holder and stated to be specifically for use therein or relates to the offers or sales of Registrable Securities during the Deferral Period; provided, however, that the obligations of each of the Holders hereunder shall be limited to an amount equal to the proceeds to such Holder of securities sold as contemplated herein; provided further, that the indemnity agreement contained in this Section 2.5(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without the consent of the Holder, which consent shall not be unreasonably withheld. (c)Each party entitled to indemnification under this Section 2.5 (the “Indemnified Party”) shall give notice to the party required to provide indemnification (the “Indemnifying Party”) promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and shall permit the Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom; provided that counsel for the Indemnifying Party that shall conduct the defense of such claim or any litigation resulting therefrom, shall be approved by the Indemnified Party (whose approval shall not unreasonably be withheld) and the Indemnified Party may participate in such defense at such party’s expense (unless the Indemnified Party shall have reasonably concluded that there may be a conflict of interest between the Indemnifying Party and the Indemnified Party in such action, in which case the fees and expenses of counsel shall be at the expense of the Indemnifying Party), and provided further that the failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under this Section 2.5 unless the Indemnifying Party is materially prejudiced thereby.No Indemnifying Party, in the defense of any such claim or litigation shall, except with the consent of each Indemnified Party, consent to entry of any judgment or enter into any settlement which (i) does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect to such claim or litigation or (ii) includes a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any Indemnified Party.Each Indemnified Party shall furnish such information regarding itself or the claim in question as an Indemnifying Party may reasonably request in writing and as shall be reasonably required in connection with the defense of such claim and litigation resulting therefrom. (d)If the indemnification provided for in this Section 2.5 is held by a court of competent jurisdiction to be unavailable to an Indemnified Party with respect to any loss, liability, claim, damage or expense referred to herein, then the Indemnifying Party, in lieu of indemnifying such Indemnified Party hereunder, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, liability, claim, damage or expense in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party on the one hand and of the Indemnified Party on the other in connection with the statements or omissions which resulted in such loss, liability, claim, damage or expense, as well as any other relevant equitable considerations.The relative fault of the Indemnifying Party and of the Indemnified Party shall be determined by reference to, among other things, whether the untrue (or alleged untrue) statement of a material fact or the omission (or alleged omission) to state a material fact relates to information supplied by the Indemnifying Party or by the Indemnified Party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. 2.6.Further Obligations of the Company.With a view to making available the benefits of certain rules and regulations of the Commission which may permit the sale of securities to the public without registration, the Company agrees to: (a)make and keep public information available as those terms are understood and defined in Rule 144 under the Securities Act; (b)use commercially reasonable efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and the Exchange Act at any time after it has become subject to such reporting requirements; (c)except as provided in Section 2.1(b), as expeditiously as possible prepare and file with the SEC any amendments and supplements to the Registration Statement and the prospectus included in the Registration Statement as may be necessary to comply with the provisions of the Securities Act (including the anti-fraud provisions); and (d)so long as a Holder owns any Registrable Securities, furnish to such Holder upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 and of the Securities Act and the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed as such Holder may reasonably request in availing itself of any rule or regulation of the SEC allowing such Holder to sell any such securities without registration. ARTICLE III. REPRESENTATIONS AND WARRANTIES 3.1.Representations and Warranties of the Stockholder. The Stockholder hereby represents and warrants to the Company as follows: (a)such Stockholder has the legal capacity to execute and deliver this Agreement and to consummate the transactions contemplated hereby; (b)such Stockholder is an entity duly organized and validly existing under the laws of the jurisdiction in which it is incorporated or constituted, and such Stockholder has all requisite power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby, and has taken all necessary corporate or other action to authorize the execution, delivery and performance of this Agreement; (c)this Agreement has been validly executed and delivered by such Stockholder and constitutes the legal, valid and binding obligation of such Stockholder, enforceable against such Stockholder in accordance with its terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, and (ii) the availability of the remedy of specific performance or injunctive or other forms of equitable relief may be subject to equitable defenses and would be subject to the discretion of the court before which any proceeding therefor may be brought; (d)neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will result in a violation of, or a default under, or conflict with, any contract, trust, commitment, agreement, understanding, arrangement or restriction of any kind to which such Stockholder is a party or by which such Stockholder’s assets are bound, other than as would not reasonably be expected to prevent or materially delay or impair the ability of such Stockholder to perform its obligations hereunder.The consummation of the transactions contemplated hereby will not violate, or require any consent, approval, or notice under, any provision of any judgment, order, decree, statute, law, rule or regulation applicable to such Stockholder, other than as would not reasonably be expected to prevent or materially delay or impair the ability of such Stockholder to perform its obligations hereunder; (e)such Stockholder is the beneficial owner of shares of Allos Stock in the amount set forth opposite such Stockholder’s name in Schedule I attached hereto by Allos, free and clear of any and all Liens and any other limitation or restriction (including any restriction on the right to vote, sell or otherwise dispose of such shares) (except as provided under the Voting Agreement or pursuant to any applicable restrictions on transfer under the Securities Act of 1933, as amended).Other than the Allos Stock listed on such schedule, such Stockholder owns no securities of either Allos or the Company or other rights to subscribe for or otherwise acquire any securities of either Allos or the Company and has no other interest in or voting rights with respect to any securities of either Allos or the Company; and (f)no claim, action, suit, proceeding, arbitration, investigation or inquiry before any Governmental Body is now pending or, to the knowledge of such Stockholder, threatened, against or relating to such Stockholder which would prohibit or adversely affect the ability of such Stockholder to consummate or perform the transactions contemplated by this Agreement or the Merger Agreement. 3.2.Representations and Warranties of Company. The Company hereby represents and warrants to the Stockholder as follows: (a)the Company is a corporation duly organized and validly existing under the laws of the state of Delaware and has all requisite corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby, and has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement; (b)this Agreement has been duly authorized, executed and delivered by the Company, and constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally and (ii) the availability of the remedy of specific performance or injunctive or other forms of equitable relief may be subject to equitable defenses and would be subject to the discretion of the court before which any proceeding therefor may be brought; and (c)neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will result in a violation of, or a default under, or conflict with, any contract, trust, commitment, agreement, understanding, arrangement or restriction of any kind to which the Company is a party or by which the Company’s assets are bound.The consummation of the transactions contemplated hereby will not violate, or require any consent, approval, or notice under, any provision of any judgment, order, decree, statute, law, rule or regulation applicable to the Company. ARTICLE IV. MISCELLANEOUS 4.1.Effective Date. This Agreement shall become effective upon consummation of the Merger as contemplated by the Merger Agreement and prior to such time shall have no force or effect.If the Merger Agreement is terminated prior to the Closing Date, this Agreement shall terminate without any further action of the parties hereto and no party shall have any liability to the other with the respect to the provisions contained herein. 4.2.Notices. All notices, consents, requests, claims, demands and other communications hereunder shall be in writing and shall be given or made (and shall be deemed to have been duly given or made upon receipt) by delivery in person, courier service, fax or registered or certified mail (postage prepaid, return receipt requested) as follows (or at such other address for a party as shall be specified in a notice given in accordance with this Section 4.2): (a)if to the Company: AMAG Pharmaceuticals, Inc. 100 Hayden Avenue Lexington, Massachusetts 02421 Attention: Chief Executive Officer Fax: (617) 812-7898 with a copy to: Cooley LLP 500 Boylston Street Boston, MA 02136 Attention: Miguel J. Vega and Barbara Borden Fax: (617) 937-2400 (b)if to Stockholder: Warburg Pincus Private Equity VIII, L.P. 450 Lexington Avenue New York, NY 10017 Attention: Jonathan S. Leff Fax: (212) 878-0850 with a copy to: Willkie Farr & Gallagher LLP 787 Seventh Avenue New York, NY 10019 Attention: Steven J. Gartner and Mark A. Cognetti Fax: (212) 728-8111 4.3.Further Assurances. The parties hereto will sign such further documents, cause such meetings to be held, resolutions passed, exercise their votes and do and perform and cause to be done such further acts and things as may be necessary in order to give full effect to this Agreement and every provision hereof. 4.4.Assignment. This Agreement will inure to the benefit of and be binding on the parties hereto and their respective successors and permitted assigns.Except as specifically provided herein, this Agreement may not be assigned by any party hereto without the express prior written consent of the other parties, and any attempted assignment, without such consents, will be null and void.For the avoidance of doubt, no transferee of shares of Common Stock subject to this Agreement shall be entitled to any rights under Article II without the consent of the Company, which may be granted or withheld in its sole discretion. 4.5.Amendment; Waiver. This Agreement may be amended, supplemented or otherwise modified only by a written instrument executed by the parties hereto.No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and executed by the party so waiving.Except as provided in the preceding sentence, no action taken pursuant to this Agreement, including without limitation, any investigation by or on behalf of any party, will be deemed to constitute a waiver by the party taking such action of compliance with any covenants or agreements contained herein.The waiver by any party hereto of a breach of any provision of this Agreement will not operate or be construed as a waiver of any subsequent breach. 4.6.Third Parties. Except as otherwise set forth herein, this Agreement does not create any rights, claims or benefits inuring to any Person that is not a party hereto nor create or establish any third party beneficiary hereto. 4.7.Governing Law. This Agreement will be governed by, and construed in accordance with, the laws of the State of Delaware. 4.8.Binding Arbitration. Any controversy, dispute or claim arising out of, in connection with, or in relation to, the construction, performance, or breach of this Agreement shall be adjudicated by arbitration conducted in accordance with the existing rules for commercial arbitration of the American Arbitration Association, or any successor organization in New York City (the “AAA”), as determined by the party initiating the arbitration.The demand for arbitration shall be delivered in accordance with the notice provisions of this Agreement.Arbitration hereunder shall be conducted by a single arbitrator selected jointly by the parties hereto.If within thirty (30) days after a demand for arbitration is made, the parties hereto are unable to agree on a single arbitrator, three arbitrators shall be appointed.Each party shall select one arbitrator and those two arbitrators shall then select within thirty (30) days a third neutral arbitrator.If the arbitrators selected by the parties cannot agree on the third arbitrator, they shall discuss the qualifications of such third arbitrator with the AAA prior to selection of such arbitrator, which selection shall be in accordance with the existing rules of the AAA.If an arbitrator cannot continue to serve, a successor to an arbitrator selected by the parties shall be also selected by the same party, and a successor to a neutral arbitrator shall be selected as specified above.A full rehearing will be held only if the neutral arbitrator is unable to continue to serve or if the remaining arbitrators unanimously agree that such a rehearing is appropriate.Any discovery in connection with arbitration hereunder shall be limited to information directly relevant to the controversy or claim in arbitration.Judgment upon any arbitration award rendered may be entered in any court of competent jurisdiction.EACH PARTY HERETO UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING RELATING TO THIS AGREEMENT. 4.9.Specific Performance. Without limiting or waiving in any respect any rights or remedies of the parties hereto under this Agreement now or hereinafter existing at law or in equity or by statute, each of the parties hereto will be entitled to seek specific performance of the obligations to be performed by the other in accordance with the provisions of this Agreement, including during such time prior to the final and binding decision in any arbitration contemplated by Section 4.8. 4.10.Termination of other Agreements. Effective as of the Closing Date, all agreements between the Stockholder and Allos entered into before the date of this Agreement, including without limitation, the letter agreement, by and between Allos and Stockholder, dated March 4, 2005,the Securities Purchase Agreement by and between Allos and Stockholder, dated March 2, 2005, and the Registration Rights Agreement, by and between Allos and Stockholder, dated March 2, 2005 shall hereby be permanently waived and/or terminated, and have no further force and effect. 4.11.Entire Agreement. This Agreement sets forth the entire understanding of the parties hereto with respect to the subject matter hereof. 4.12.Titles and Headings. The section headings contained in this Agreement are for reference purposes only and will not affect the meaning or interpretation of this Agreement. 4.13.Severability. If any provision of this Agreement is declared by any court of competent jurisdiction to be illegal, void or unenforceable, all other provisions of this Agreement will not be affected and will remain in full force and effect. 4.14.Construction The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no rule of strict construction will be applied against any party.Unless the context otherwise requires: (a) “or” is disjunctive but not exclusive, (b) words in the singular include the plural, and in the plural include the singular, and (c) the words “hereof”, “herein” and “hereunder” and words of similar import when used in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section and Exhibit references are to this Agreement unless otherwise specified. 4.15.Counterparts. This Agreement may be executed in any number of counterparts, each of which will be deemed to be an original and all of which together will be deemed to be one and the same instrument. 4.16.Recapitalizations, Exchanges, Etc. The provisions of this Agreement shall apply to the full extent set forth herein with respect to (i) the Registrable Securities, and (ii) any and all shares of voting Common Stock into which the Registrable Securities are converted, exchanged or substituted in any recapitalization or other capital reorganization by the Company, and shall be appropriately adjusted for any stock dividends, splits, reverse splits, combinations, recapitalizations and the like occurring after the date hereof. [Signature page immediately follows.] IN WITNESS WHEREOF, each of the undersigned has executed this Agreement or caused this Agreement to be executed on its behalf as of the date first written above. AMAG PHARMACEUTICALS, INC. By: /s/ Brian J.G. Pereira MD Name: Brian J.G. Pereira MD Title: Chief Executive Officer WARBURG PINCUS PRIVATE EQUITY VIII, L.P. BY: Warburg Pincus Partners, LLC, its general partner BY: Warburg Pincus & Co., its managing member By: /s/ Jonathan Leff Name: Jonathan Leff Title: Partner Schedule 1 Ownership of Securities Name and Address of Stockholder Shares Held of Record Options and Other Rights Additional Securities Beneficially Owned Warburg Pincus Private Equity VIII, L.P. 450 Lexington Ave. 34th Floor New York, NY 10017 - - ANNEX A PLAN OF DISTRIBUTION We are registering a total of []shares of our common stock on behalf of the selling stockholder pursuant to the terms of a stockholders agreement, dated as of July 19, 2011.A copy of the stockholders agreement was filed with the SEC and is incorporated by reference as an exhibit to the registration statement of which this prospectus is a part.The selling stockholdermay, from time to time after the date of this prospectus, sell any or all of the shares of common stock offered hereby on any stock exchange, market or trading facility on which the shares are traded or in private transactions.We will not receive any of the proceeds from the sale by the selling stockholder of the shares of common stock.We will bear all fees and expenses incident to our obligation to register the shares of common stock other than any fees of counsel to the selling stockholder which exceed $50,000. The selling stockholder may decide not to sell any shares of common stock.The selling stockholder may sell all or a portion of the shares of common stock beneficially owned by it and offered hereby from time to time directly or through one or more underwriters, broker-dealers or agents, who may receive compensation in the form of discounts, concessions or commissions from the selling stockholder and/or the purchasers of the shares of common stock for whom they may act as agent.In effecting sales, broker-dealers that are engaged by the selling stockholder may arrange for other broker-dealers to participate.The selling stockholder may be deemed an “underwriter” within the meaning of the Securities Act.Any brokers, dealers or agents who participate in the distribution of the shares of common stock by the selling stockholder may also be deemed to be “underwriters,” and any profits on the sale of the shares of common stock by them and any discounts, commissions or concessions received by any such brokers, dealers or agents may be deemed to be underwriting discounts and commissions under the Securities Act.To our knowledge, the selling stockholder has not entered into any agreement, arrangement or understanding with any particular broker-dealer or market maker with respect to the shares of common stock offered hereby, nor do we know the identity of the broker-dealers or market makers that may participate in the resale of the shares.Because the selling stockholder and any other selling stockholder, broker, dealer or agent may be deemed to be an “underwriter” within the meaning of the Securities Act, the selling stockholder and any other selling stockholder, broker, dealer or agent may be subject to the prospectus delivery requirements of the Securities Act and may be subject to certain statutory liabilities of the Securities Act (including, without limitation, Sections11, 12 and 17 thereof) and Rule10b-5 under the Exchange Act. The selling stockholder will act independently of us in making decisions with respect to the timing, manner and size of each sale.The shares of common stock may be sold in one or more transactions at fixed prices, at prevailing market prices at the time of the sale, at varying prices determined at the time of sale, or at negotiated prices.These sales may be effected in transactions, which may involve crosses or block transactions, pursuant to one or more of the following methods: · on any national securities exchange or quotation service on which the securities may be listed or quoted at the time of sale; · in the over-the-counter market in accordance with the rules of the NASDAQ; · in transactions otherwise than on these exchanges or systems or in the over-the-counter market; · through the writing or settlement of options, whether such options are listed on an options exchange or otherwise; · ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers; · block trades in which the broker-dealer will attempt to sell the shares as agent but may position and resell a portion of the block as principal to facilitate the transaction; · purchases by a broker-dealer as principal and resale by the broker-dealer for its account; · an exchange distribution in accordance with the rules of the applicable exchange; · privately negotiated transactions; · broker-dealers may agree with the selling stockholder to sell a specified number of such shares at a stipulated price per share; · by pledge to secure debts and other obligations or on foreclosure of a pledge; · through the settlement of short sales; · a combination of any such methods of sale; and · any other method permitted pursuant to applicable law. The selling stockholder may also sell shares of common stock covered by this prospectus pursuant to Rule144 promulgated under the Securities Act, if available, rather than under this prospectus.In addition, the selling stockholder may transfer the shares of common stock by other means not described in this prospectus. Any broker-dealer participating in such transactions as agent may receive commissions from the selling stockholder (and, if they act as agent for the purchaser of such shares, from such purchaser).The selling stockholder has informed us that any such broker-dealer would receive commissions from the selling stockholder which would not exceed customary brokerage commissions.Broker-dealers may agree with the selling stockholder to sell a specified number of shares at a stipulated price per share, and, to the extent such a broker-dealer is unable to do so acting as agent for the selling stockholder, to purchase as principal any unsold shares at the price required to fulfill the broker-dealer commitment to the selling stockholder.Broker-dealers who acquire shares as principal may thereafter resell such shares from time to time in one or more transactions (which may involve crosses and block transactions and which may involve sales to 2. and through other broker-dealers, including transactions of the nature described above and pursuant to one or more of the methods described above) at fixed prices, at prevailing market prices at the time of the sale, at varying prices determined at the time of sale, or at negotiated prices, and in connection with such resales may pay to or receive from the purchasers of such shares commissions computed as described above.To the extent required under the Securities Act, an amendment to this prospectus or a supplemental prospectus will be filed, disclosing: · the name of any such broker-dealers; · the number of shares involved; · the price at which such shares are to be sold; · the commission paid or discounts or concessions allowed to such broker-dealers, where applicable; · that such broker-dealers did not conduct any investigation to verify the information set out or incorporated by reference in this prospectus, as supplemented; and · other facts material to the transaction. The selling stockholder has informed us that it does not have any written or oral agreement or understanding, directly or indirectly, with any person to distribute the common stock. Under the securities laws of some states, the shares of common stock may be sold in such states only through registered or licensed brokers or dealers.In addition, in some states the shares of common stock may not be sold unless such shares have been registered or qualified for sale in such state or an exemption from registration or qualification is available and is complied with. Underwriters and purchasers that are deemed underwriters under the Securities Act may engage in transactions that stabilize, maintain or otherwise affect the price of the common stock, including the entry of stabilizing bids or syndicate covering transactions or the imposition of penalty bids.The selling stockholder and any other person participating in the sale or distribution of the shares of common stock will be subject to applicable provisions of the Exchange Act and the rules and regulations thereunder (including, without limitation, RegulationM of the Exchange Act), which may restrict certain activities of, and limit the timing of purchases and sales of any of the shares of common stock by, the selling stockholder and any other participating person.To the extent applicable, RegulationM may also restrict the ability of any person engaged in the distribution of the shares of common stock to engage in market-making and certain other activities with respect to the shares of common stock.In addition, the anti-manipulation rules under the Exchange Act may apply to sales of the shares of common stock in the market.All of the foregoing may affect the marketability of the shares of common stock and the ability of any person or entity to engage in market-making activities with respect to the shares of common stock. 3. Under the stockholders agreement, we have agreed with the selling stockholder to keep the registration statement of which this prospectus constitutes a part effective until the earlier of three years from the effective date of this registration statement or the date that all of the shares of common stock covered by the registration statement have been sold. We have agreed, among other things, to pay all expenses of the registration of the shares of common stock, estimated to be $[] in total, including, without limitation, SEC filing fees and expenses of compliance with state securities or “Blue Sky” laws; provided, however, that the selling stockholder will pay all underwriting discounts and selling commissions applicable to the sale of the shares of common stock and any expenses of the selling stockholder’s counsel which exceed $50,000.We have agreed to indemnify the selling stockholder and certain other persons against certain liabilities in connection with the offering of shares of common stock offered hereby, including liabilities arising under the Securities Act or, if such indemnity is unavailable, to contribute amounts required to be paid in respect of such liabilities.The selling stockholder has, subject to certain limitations, agreed to indemnify us against liabilities under the Securities Act that may arise from any written information furnished to us by the selling stockholder specifically for use in this prospectus or, if such indemnity is unavailable, to contribute amounts required to be paid in respect of such liabilities. At any time a particular offer of the shares of common stock is made by the selling stockholder, a revised prospectus or prospectus supplement, if required, will be distributed.Such prospectus supplement and related post-effective amendment, if required, will be filed with the SEC to reflect the disclosure of any required additional information with respect to the distribution of the shares of common stock.We may suspend the sale of shares by the selling stockholder pursuant to this prospectus for certain periods of time for certain reasons, including if the prospectus is required to be supplemented or amended to include additional material information. 4.
Converted by SEC Publisher, created by BCL Technologies Inc., for SEC Filing Exhibit 6(c) BYLAWS OF TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA As Amended August 21, 2006 ARTICLE ONE Stockholders Section 1. Annual Meeting. The annual meeting of stockholders for the election of trustees and for the transaction of such other business as may properly come before the meeting shall be held on the second Tuesday in June of each year, if not a legal holiday, or, if a legal holiday, then on the next preceding business day, at the office of the Association in the City of New York, and at an hour specified by notice mailed at least thirty days in advance. If the chief executive officer or the nominating and governance committee shall so determine, the annual meeting may be held at a different date, time and place, as shall be specified in the notice of meeting. The notice shall be in writing and shall be signed by the chairperson, or the president, or a vice president, or the secretary. Special meetings of the stockholders may be held at the said office of the Association whenever called by the chairperson, or by the president, or by order of the board of trustees, or by the holders of at least one third of the outstanding shares of stock of the Association, or may be held subject to the provisions of the emergency bylaws of the Association. Section 2. Notice. It shall be the duty of the secretary not less than ten nor more than forty days prior to the date of each meeting of the stockholders to cause a notice of the meeting to be mailed to each stockholder. Section 3. Voting. At all meetings of stockholders each stockholder shall be entitled to one vote upon each share of stock owned by him/her of record on the books of the Association ten days before the meeting. Stockholders may vote in person or by proxy appointed in writing. Section 4. Quorum. The presence in person or by proxy of the holders of a majority of the shares in the Association shall be necessary to constitute a quorum at any meeting of stockholders. Section 5. Telephonic Participation. At all meetings of stockholders or any committee thereof, stockholders may participate by means of a conference telephone or similar communications equipment allowing all persons participating in the meeting to hear each other at the same time. Participation by such means shall constitute presence in person at a meeting. ARTICLE TWO Trustees Section 1. General Management. The general management of the property, business and affairs of the Association shall be vested in the board of trustees provided by the charter. The board of trustees shall consist of no less than thirteen trustees or the minimum number of trustees required by law, whichever is less, and no more than twenty-four trustees, and the number of trustees shall be fixed by a vote of the majority of the board of trustees. All trustees shall be elected to a term of one year. The term of office of each trustee so elected shall commence at the beginning of the annual meeting of the board of trustees next succeeding such election, and shall continue until the beginning of the next annual meeting of the board of - 1 - trustees and a successor shall take office. A trustee need not be a stockholder. At least one third of such trustees must satisfy the independence requirements of Section 1202(b)(1) of the New York Insurance Law or any successor provision. At least one such person must be included in the quorum for the transaction of business at any meeting of the trustees. Section 2. Quorum. One third of the trustees shall constitute a quorum at all meetings of the board. If less than a quorum shall be present at any meeting, a majority of those present may adjourn the meeting from time to time until a quorum shall attend. In case of a vacancy among the trustees of any class through death, resignation or other cause, a successor to hold office for the unexpired portion of the term may be elected at any meeting of the board at which a quorum shall be present. Such successors shall not take office nor exercise the duties thereof until ten days after written notice of their election shall have been filed in the office of the Superintendent of Insurance of the State of New York. Section 3. Annual Meeting. There shall be a meeting of the board of trustees on the third Wednesday in June each year, if not a legal holiday, or, if a legal holiday, then on the next preceding business day, at a time and place specified in a notice mailed at least ten days and not more than twenty days in advance. This shall be known as the annual meeting of the board of trustees. At this meeting the board shall elect officers, appoint committees and transact such other business as shall properly come before the meeting. If the chief executive officer or the nominating and governance committee shall so determine, the annual meeting may be held at a different date, time and place, as shall be specified in the notice of meeting. Section 4. Other Meetings. Stated meetings of the board of trustees shall be held on such dates as the board by standing resolution may fix. No notice of such stated meetings need be given.
UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13G Under the Securities Exchange Act of 1934 (Amendment No. )* WALTER INVESTMENT MANAGEMENT CORP. (Name of Issuer) Common Stock, Par Value $0.01 Per Share (Title of Class of Securities) 93317W102 (CUSIP Number) June 7, 2011 (Date of Event which Requires Filing of this Statement) Check the appropriate box to designate the rule pursuant to which this Schedule is filed: oRule 13d-1(b) xRule 13d-1(c) oRule 13d-1(d) 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 the 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). Page 1of 9 CUSIP No. 93317W102 13G Page 2of 9Pages 1 NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON S.A.C. Capital Advisors, L.P. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) x 3 SEC USE ONLY 4 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: 5 SOLE VOTING POWER 0 6 SHARED VOTING POWER 875,596 (see Item 4) 7 SOLE DISPOSITIVE POWER 0 8 SHARED DISPOSITIVE POWER 875,596 (see Item 4) 9 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 875,596 (see Item 4) 10 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES o 11 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9) 3.4%(see Item 4) 12 TYPE OF REPORTING PERSON* PN SEE INSTRUCTION BEFORE FILLING OUT Page 2of 9 CUSIP No. 93317W102 13G Page 3of 9Pages 1 NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON S.A.C. Capital Advisors, Inc. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) x 3 SEC USE ONLY 4 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: 5 SOLE VOTING POWER 0 6 SHARED VOTING POWER 875,596 (see Item 4) 7 SOLE DISPOSITIVE POWER 0 8 SHARED DISPOSITIVE POWER 875,596 (see Item 4) 9 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 875,596 (see Item 4) 10 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES o 11 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9) 3.4% (see Item 4) 12 TYPE OF REPORTING PERSON* CO SEE INSTRUCTION BEFORE FILLING OUT Page 3of 9 CUSIP No. 93317W102 13G Page 4of 9Pages 1 NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Sigma Capital Management, LLC 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) (b) 3 SEC USE ONLY 4 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: 5 SOLE VOTING POWER 0 6 SHARED VOTING POWER 725,000 (see Item 4) 7 SOLE DISPOSITIVE POWER 0 8 SHARED DISPOSITIVE POWER 725,000 (see Item 4) 9 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 725,000 (see Item 4) 10 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES o 11 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9) 2.8% (see Item 4) 12 TYPE OF REPORTING PERSON* OO SEE INSTRUCTION BEFORE FILLING OUT Page 4 of 9 CUSIP No. 93317W102 13G Page 5of 9Pages 1 NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Steven A. Cohen 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) x 3 SEC USE ONLY 4 CITIZENSHIP OR PLACE OF ORGANIZATION United States NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: 5 SOLE VOTING POWER 0 6 SHARED VOTING POWER 1,600,596 (see Item 4) 7 SOLE DISPOSITIVE POWER 0 8 SHARED DISPOSITIVE POWER 1,600,596 (see Item 4) 9 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,600,596 (see Item 4) 10 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES o 11 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9) 6.2%(see Item 4) 12 TYPE OF REPORTING PERSON* IN *SEE INSTRUCTION BEFORE FILLING OUT Page 5of 9 Item 1(a) Name of Issuer: Walter Investment Management Corp. Item 1(b) Address of Issuer's Principal Executive Offices: 3000 Bayport Drive, Suite 1100, Tampa, FL 33607 Item 2(a) Name of Person Filing: This statement is filed by: (i) S.A.C. Capital Advisors, L.P. (“SAC Capital Advisors LP”) with respect to shares of Common Stock, par value $0.01 per share (“Shares”) of the Issuer beneficially owned by S.A.C. Capital Associates, LLC (“SAC Capital Associates”) and S.A.C. MultiQuant Fund, LLC (“SAC MultiQuant Fund”); (ii) S.A.C. Capital Advisors, Inc. (“SAC Capital Advisors Inc.”) with respect to Shares beneficially owned by SAC Capital Advisors LP, SAC Capital Associates and SAC MultiQuant Fund; (iii) Sigma Capital Management, LLC (“Sigma Management”) with respect to Shares beneficially owned by Sigma Capital Associates, LLC (“Sigma Capital Associates”); and (iv) Steven A. Cohen with respect to Shares beneficially owned by SAC Capital Advisors LP, SAC Capital Advisors Inc., SAC Capital Associates, SAC MultiQuant Fund, Sigma Management, and Sigma Capital Associates. SAC Capital Advisors LP, SAC Capital Advisors Inc., Sigma Management and Steven A. Cohen have entered into a Joint Filing Agreement, a copy of which is filed with this Schedule 13G as Exhibit 99.1, pursuant to which they have agreed to file this Schedule 13G jointly in accordance with the provisions of Rule 13d-1(k) of the Act. Item 2(b) Address or Principal Business Office: The address of the principal business office of (i) SAC Capital Advisors LP, SAC Capital Advisors Inc. and Mr. Cohen is 72 Cummings Point Road, Stamford, Connecticut 06902; and (ii) Sigma Management is 540 Madison Avenue, New York, New York 10022. Item 2(c) Citizenship: SAC Capital Advisors LP is a Delaware limited partnership.SAC Capital Advisors Inc. is a Delaware corporation.Sigma Management is a Delaware limited liability company.Mr. Cohen is a United States citizen. Item 2(d) Title of Class of Securities: Common Stock, par value $0.01 per share Page 6 of 9 Item 2(e) CUSIP Number: 93317W102 Item 3 Not Applicable Item 4 Ownership: The percentages used herein are calculated based upon the Shares issued and outstanding as of May 3, 2011 as reported on the Issuer's quarterly report on Form 10-Q filed with the Securities and Exchange Commission by the Issuer for the quarterly period ended March 31, 2011. As of the close of business on June 16, 2011: 1.S.A.C. Capital Advisors, L.P. (a) Amount beneficially owned: 875,596 (b) Percent of class: 3.4% (c)(i) Sole power to vote or direct the vote: -0- (ii) Shared power to vote or direct the vote: 875,596 (iii) Sole power to dispose or direct the disposition: -0- (iv) Shared power to dispose or direct the disposition: 875,596 2.S.A.C. Capital Advisors, Inc. (a) Amount beneficially owned: 875,596 (b) Percent of class: 3.4% (c)(i) Sole power to vote or direct the vote: -0- (ii) Shared power to vote or direct the vote: 875,596 (iii) Sole power to dispose or direct the disposition: -0- (iv) Shared power to dispose or direct the disposition: 875,596 3.Sigma Capital Management, LLC (a) Amount beneficially owned: 725,000 (b) Percent of class: 2.8% (c)(i) Sole power to vote or direct the vote: -0- (ii) Shared power to vote or direct the vote: 725,000 (iii) Sole power to dispose or direct the disposition: -0- (iv) Shared power to dispose or direct the disposition: 725,000 4. Steven A. Cohen (a) Amount beneficially owned: 1,600,596 (b) Percent of class: 6.2% (c)(i) Sole power to vote or direct the vote: -0- (ii) Shared power to vote or direct the vote: 1,600,596 (iii) Sole power to dispose or direct the disposition: -0- (iv) Shared power to dispose or direct the disposition: 1,600,596 SAC Capital Advisors LP, SAC Capital Advisors Inc., Sigma Management, and Mr. Cohen own directly no Shares.Pursuant to an investment management agreement, SAC Capital Advisors LP maintains Page 7 of 9 investment and voting power with respect to the securities held by SAC Capital Associates and SAC MultiQuant Fund.SAC Capital Advisors Inc. is the general partner of SAC Capital Advisors LP.Pursuant to an investment management agreement, Sigma Management maintains investment and voting power with respect to the securities held by Sigma Capital Associates.Mr. Cohen controls each of SAC Capital Advisors Inc. and Sigma Management.By reason of the provisions of Rule 13d-3 of the Securities Exchange Act of 1934, as amended, each of (i) SAC Capital Advisors LP, SAC Capital Advisors Inc. and Mr. Cohen may be deemed to beneficially own 875,596 Shares (constituting approximately 3.4% of the Shares outstanding); and (ii) Sigma Management and Mr. Cohen may be deemed to beneficially own 725,000 Shares (constituting approximately 2.8% of the Shares outstanding).Each of SAC Capital Advisors LP, SAC Capital Advisors Inc., Sigma Management, and Mr. Cohen disclaims beneficial ownership of any of the securities covered by this statement. Item 5 Ownership of Five Percent or Less of a Class: If this statement is being filed to report the fact that as of the date hereof the reporting person has ceased to be the beneficial owner of more than five percent of the class of securities, check the following. o Item 6 Ownership of More than Five Percent on Behalf of Another Person: Not Applicable Item 7 Identification and Classification of the Subsidiary Which Acquired the Security Being Reported on By the Parent Holding Company: Not Applicable Item 8 Identification and Classification of Members of the Group: Not Applicable Item 9 Notice of Dissolution of Group: Not Applicable Item 10 Certification: By signing below the signatory certifies that, to the best of his knowledge and belief, the securities referred to above were not acquired and are not held for the purpose of or with the effect of changing or influencing the control of the issuer of the securities and were not acquired and are not held in connection with or as a participant in any transaction having that purpose or effect. Page 8 of 9 SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: June 17, 2011 S.A.C. CAPITAL ADVISORS, L.P. By:/s/ Peter Nussbaum Name:Peter Nussbaum Title:Authorized Person S.A.C. CAPITAL ADVISORS, INC. By:/s/ Peter Nussbaum Name: Peter Nussbaum Title: Authorized Person SIGMA CAPITAL MANAGEMENT, LLC By:/s/ Peter Nussbaum Name:Peter Nussbaum Title:Authorized Person STEVEN A. COHEN By:/s/ Peter Nussbaum Name:Peter Nussbaum Title:Authorized Person Page 9 of 9
Exhibit 10.1 CALIFORNIA COASTAL COMMUNITIES, INC. AMENDED AND RESTATED 1993 STOCK OPTION/STOCK ISSUANCE PLAN (As approved by the Board of Directors (i) on February 28, 2006 with required Stockholder approval obtained on June 27, 2006; and on June 14, 2006 without the requirement of Stockholder approval) ARTICLE ONE GENERAL I. PURPOSE OF THE AMENDED AND RESTATED PLAN A. This Amended and Restated 1993 Stock Option/Stock Issuance Plan (“Plan”) is intended to promote the interests of California Coastal Communities, Inc., a Delaware corporation (the “Corporation”), by providing (i) key employees (including officers) of the Corporation (or its parent or subsidiary corporations) who are responsible for the management, growth and financial success of the Corporation (or its parent or subsidiary corporations), and (ii) consultants and other independent contractors who provide valuable services to the Corporation (or its parent or subsidiary corporations) with the opportunity to acquire a proprietary interest, or otherwise increase their proprietary interest, in the Corporation as an incentive for them to remain in the service of the Corporation (or its parent or subsidiary corporations). B. The Plan amends and restates the Corporation’s Amended and Restated 1993 Stock Option/Stock Issuance Plan (the “1993 Plan”) which was adopted by the Board on March 4, 2004 and was approved by the Corporation’s stockholders on May 27, 2004. II. DEFINITIONS A. For purposes of the Plan, the following definitions shall be in effect: Board: the Corporation’s Board of Directors. Change in Control: a change in ownership or control of the Corporation effected through either of the following transactions: a. any person or related group of persons (other than the Corporation or a person that directly or indirectly controls, is controlled by, or is under common control with, the Corporation) directly or indirectly acquires beneficial ownership (within the meaning of Rule 13d-3 of the 1934 Act) of securities possessing more than fifty percent (50%) of the total combined voting power of the Corporation’s outstanding securities pursuant to a tender or exchange offer made directly to the Corporation’s stockholders which the Board does not recommend such stockholders to accept; or b. a change in the composition of the Board over a period of thirty-six (36) consecutive months or less such that a majority of the Board members (rounded up to the next whole number) ceases, by reason of one or more contested elections for Board membership, to be comprised of individuals who either (A) have been Board members continuously since the beginning of such period or (B) have been elected or nominated for election as Board members during such period by at least a majority of the Board members 1 described in clause (A) who were still in office at the time such election or nomination was approved by the Board. Common Stock: shares of the Corporation’s Common Stock, par value $.05 per share, on a post 1997 capital stock combination and one for one hundred (1:100) reverse stock split basis. Code: the Internal Revenue Code of 1986, as amended. Committee: the committee of two (2) or more non-employee Board members appointed by the Board to administer the Plan. Corporate Transaction: any of the following stockholder-approved transactions to which the Corporation is a party: a. a merger or consolidation in which the Corporation is not the surviving entity, except for a transaction the principal purpose of which is to change the state in which the Corporation is incorporated, b. the sale, transfer or other disposition of all or substantially all of the assets of the Corporation in complete liquidation or dissolution of the Corporation, or c. any reverse merger in which the Corporation is the surviving entity but in which securities possessing more than fifty percent (50%) of the total combined voting power of the Corporation’s outstanding securities are transferred to a person or persons different from the persons holding those securities immediately prior to such merger. Employee: an individual who performs services while in the employ of the Corporation or one or more parent or subsidiary corporations, subject to the control and direction of the employer entity not only as to the work to be performed but also as to the manner and method of performance. Exercise Date: the date on which the Corporation shall have received written notice of the option exercise. Fair Market Value: the Fair Market Value per share of Common Stock determined in accordance with the following provisions: a. If the Common Stock is not at the time listed or admitted to trading on any national securities exchange but is traded on the Nasdaq National Market, the Fair Market Value shall be the closing selling price per share of that security on the date in question, as such price is reported by the National Association of Securities Dealers through the Nasdaq National Market or any successor system. If there is no reported closing selling price for the Common Stock on the date in question, then the closing selling price per share of that security on the last preceding date for which such quotation exists shall be determinative of Fair Market Value. b. If the Common Stock is at the time listed or admitted to trading on any national stock exchange, then the Fair Market Value shall be the closing selling price per share of that security on the date in question on the exchange serving as the primary market for the Common Stock, as such price is officially quoted in the composite tape of transactions on such exchange. If there is no reported sale of Common Stock on such exchange on the date 2 in question, then the Fair Market Value shall be the closing selling price per share of that security on the exchange on the last preceding date for which such quotation exists. Hostile Take-Over: a change in ownership of the Corporation effected through the following transaction: Corporation or a person that directly or indirectly controls, is controlled by, or is under common control with, the Corporation) directly or indirectly acquires beneficial ownership (within the meaning of Rule 13d-3 of the 1934 Act) of securities possessing more than fifty percent (50%) of the Corporation’s outstanding securities pursuant to a tender or exchange offer made directly to the Corporation’s stockholders which the Board does not recommend such stockholders to accept, and b. more than fifty percent (50%) of the securities so acquired in such tender or exchange offer are accepted from holders other than the officers and directors of the Corporation subject to the short-swing profit restrictions of Section 16 of the 1934 Act. Incentive Option: a stock option which satisfies the requirements of Code Section 422. 1934 Act: the Securities and Exchange Act of 1934, as amended. Non-Statutory Option: a stock option not intended to meet the requirements of Code Section 422. Optionee: any person to whom an option is granted under the Discretionary Option Grant Program in effect under the Plan. Permanent Disability or Permanently Disabled: the inability of the Optionee or the Participant to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment expected to result in death or to be of continuous duration of twelve (12) months or more. Plan Administrator: the Committee in its capacity as the administrator of the Plan. Service: the performance of services on a periodic basis to the Corporation (or any parent or subsidiary corporation) in the capacity of an Employee, a non-employee member of the board of directors or an independent consultant or advisor, except to the extent otherwise specifically provided in the applicable stock option or stock issuance agreement. Take-Over Price: the greater of (a) the Fair Market Value per share of the Common Stock subject to the particular option surrendered to the Corporation in connection with a Hostile Take-Over on the date such option surrender is effected or (b) the highest reported price per share of that security paid by the tender offeror in effecting such Hostile Take-Over. However, if the surrendered option is an Incentive Option, the Take-Over Price shall not exceed the clause (a) price per share. B. The following provisions shall be applicable in determining the parent and subsidiary corporations of the Corporation: 3 — Any corporation (other than the Corporation) in an unbroken chain of corporations ending with the Corporation shall be considered to be a parent of the Corporation, provided each such corporation in the unbroken chain (other than the Corporation) owns, at the time of the determination, stock possessing fifty percent (50%) or more of the total combined voting power of all classes of stock in one of the other corporations in such chain. — Each corporation (other than the Corporation) in an unbroken chain of corporations which begins with the Corporation shall be considered to be a subsidiary of the Corporation, provided each such corporation in the unbroken chain (other than the last corporation) owns, at the time of the determination, stock possessing fifty percent (50%) or more of the total combined voting power of all classes of stock in one of the other corporations in such chain. III. STRUCTURE OF THE PLAN A. Stock Programs. The Plan shall be divided into two (2) separate components: the Discretionary Option Grant Program specified in Article Two and the Director Fee Program specified in Article Three. Under the Discretionary Option Grant Program, eligible individuals may, at the discretion of the Plan Administrator, be granted options to purchase shares of Common Stock in accordance with the provisions of Article Two. Under the Director Fee Program, each non-employee Board member may, in accordance with the provisions of Article Three, elect to apply all or any portion of his or her annual retainer fee to the acquisition of unvested shares of Common Stock. B. General Provisions. Unless the context clearly indicates otherwise, the provisions of Articles One and Four shall apply to the Discretionary Option Grant Program and the Director Fee Program and shall accordingly govern the interests of all individuals under the Plan. IV. ADMINISTRATION OF THE PLAN A. The Discretionary Option Grant Program shall be administered by the Committee in its capacity as Plan Administrator. No non-employee Board member shall be eligible to serve on the Committee if such individual has, within the twelve (12)-month period immediately preceding the date of his or her appointment to the Committee, received an option grant or direct stock issuance under this Plan or any other stock plan of the Corporation (or any parent or subsidiary corporation), other than pursuant to the Director Fee Program. B. Members of the Committee shall serve for such period of time as the Board may determine and shall be subject to removal by the Board at any time. C. The Committee as Plan Administrator shall have full power and authority (subject to the express provisions of the Plan) to establish rules and regulations for the proper administration of the Discretionary Option Grant Program and to make such determinations under, and issue such interpretations of, the provisions of such program and any outstanding option grants thereunder as it may deem necessary or advisable. Decisions of the Plan Administrator shall be final and binding on all parties who have an interest in the Discretionary Option Grant Program or any outstanding option or unvested share issuance thereunder. D. Administration of the Director Fee Program shall be self-executing in accordance with the express terms and conditions of Article Three and the Committee as Plan Administrator shall 4 exercise no discretionary functions with respect to option grants or share issuances made pursuant to those programs. V. OPTION GRANTS AND STOCK ISSUANCES A. The persons eligible to participate in the Discretionary Option Grant Program under Article Two shall be limited to the following: — officers and other key employees of the Corporation (or its parent or subsidiary corporations) who render services which contribute to the management, growth and financial success of the Corporation (or its parent or subsidiary corporations); — members of the Board or the members of the board of directors of any parent or subsidiary corporation; and — those consultants or other independent contractors who provide valuable services to the Corporation (or its parent or subsidiary corporations). B. Non-employee Board members who serve as Plan Administrator shall not, during their period of service as such, be eligible to participate in the Discretionary Option Grant Program or in any other stock option, stock purchase, stock bonus or other stock plan of the Corporation (or its parent or subsidiary corporations), other than the Director Fee Program, to the extent they are eligible for participation in those latter programs in accordance with the provisions of Articles Three. C. The Plan Administrator shall have full authority to determine which eligible individuals are to receive option grants under the Discretionary Option Grant Program, the number of shares to be covered by each such grant, the status of the granted option as either an Incentive Option or a Non-Statutory Option, the time or times at which each granted option is to become exercisable and the maximum term for which the option is to remain outstanding. VI. STOCK SUBJECT TO THE PLAN A. Shares of Common Stock shall be available for issuance under the Plan and shall be drawn from either the Corporation’s authorized but unissued shares of Common Stock or from reacquired shares of Common Stock, including shares repurchased by the Corporation on the open market. One Million One Hundred Fifty Nine Thousand Nine Hundred and Eighty-Four (1,159,984) shares of Common Stock may be issued over the term of the Plan, subject to adjustment from time to time in accordance with the provisions of this Section VI. Such authorized share reserve is comprised of the number of shares of Common Stock which remained available for issuance under the 1993 Plan prior to this amendment, as reduced by this amendment. B. In no event shall there be issued over the remaining term of the Plan, from the effective date of this amendment to the 1993 Plan until the termination of the Plan pursuant to Article Four, Section IV, more than One Million One Hundred Fifty Nine Thousand Nine Hundred and Eighty-Four (1,159,984) shares in the aggregate of Common Stock. The foregoing share limitations shall be subject to periodic adjustment in accordance with the provisions of Section F of this Article VI. C. Should one or more outstanding options under this Plan expire or terminate for any reason prior to exercise in full then the shares subject to the portion of each option not so exercised shall be available for subsequent issuance under the Plan. Shares subject to any option or portion 5 thereof surrendered in accordance with Section IV of Article Two and all share issuances under the Plan, whether or not the shares are subsequently repurchased by the Corporation pursuant to its repurchase rights under the Plan, shall reduce on a share-for-share basis the number of shares of Common Stock available for subsequent issuance under the Plan. In addition, should the exercise price of an outstanding option under the Plan be paid with shares of Common Stock or should shares of Common Stock otherwise issuable under the Plan be withheld by the Corporation in satisfaction of the withholding taxes incurred in connection with the exercise of an outstanding option under the Plan or the vesting of a direct share issuance made under the Plan, then the number of shares of Common Stock (as the case may be) available for issuance under the Plan shall be reduced by the gross number of shares for which the option is exercised or which vest under the share issuance, and not by the net number of shares of Common Stock actually issued to the holder of such option or share issuance. D. Should any change be made to the Common Stock issuable under the Plan by reason of any stock split, stock dividend, recapitalization, combination of shares, exchange of shares or other change affecting the outstanding Common Stock as a class without the Corporation’s receipt of consideration, then appropriate adjustments shall be made to (i) the maximum number and/or class of securities issuable under the Plan, (ii) the maximum number and/or class of securities in the aggregate for which any one individual participating in the Plan may be granted stock options, separately exercisable stock appreciation rights and direct share issuances over the term of the Plan, (iii) the number and/or class of securities for which share issuances are subsequently to be made to non-employee Board members under the Director Fee Program, and (iv) the number and/or class of securities and price per share in effect under each option outstanding under the Discretionary Option Grant. Such adjustments to the outstanding options are to be effected in a manner which shall preclude the enlargement or dilution of rights and benefits under such options. The adjustments determined by the Plan Administrator shall be final, binding and conclusive. ARTICLE TWO DISCRETIONARY OPTION GRANT PROGRAM I. TERMS AND CONDITIONS OF OPTIONS Options granted pursuant to the Discretionary Option Grant Program shall be authorized by action of the Plan Administrator and may, at the Plan Administrator’s discretion, be either Incentive Options or Non-Statutory Options. Individuals who are not Employees of the Corporation or its parent or subsidiary corporations may only be granted Non-Statutory Options. Each granted option shall be evidenced by one or more instruments in the form approved by the Plan Administrator; provided, however, that each such instrument shall comply with the terms and conditions specified below. Each instrument evidencing an Incentive Option shall, in addition, be subject to the applicable provisions of Section II of this Article Two. A. Exercise Price. 1. The exercise price per share of Common Stock subject to any option granted under this Article Two shall be fixed by the Plan Administrator at the time of the grant, but in no event shall such exercise price be less than one hundred percent (100%) of the Fair Market Value per share of that security on the grant date. 2. The exercise price shall become immediately due upon exercise of the option and, subject to the provisions of Section I of Article Four and the instrument evidencing the grant, shall be payable in one of the following alternative forms specified below: 6 a. full payment in cash or check made payable to the Corporation’s order; b. full payment in shares of Common Stock held for the requisite period necessary to avoid a charge to the Corporation’s earnings for financial reporting purposes and valued at Fair Market Value on the Exercise Date; c. full payment in a combination of shares of Common Stock held for the requisite period necessary to avoid a charge to the Corporation’s earnings for financial reporting purposes and valued at Fair Market Value on the Exercise Date and cash or check drawn to the Corporation’s order; or d. to the extent the option is exercised for vested shares, full payment through a broker-dealer sale and remittance procedure pursuant to which the Optionee shall concurrently provide irrevocable written instructions to (i) a Corporation-designated brokerage firm to effect the immediate sale of the purchased shares and remit to the Corporation, out of the sale proceeds available on the settlement date, sufficient funds to cover the aggregate exercise price payable for the purchased shares plus all applicable Federal, state and local income and employment taxes required to be withheld by the Corporation in connection with such purchase and (ii) the Corporation to deliver the certificates for the purchased shares directly to such brokerage firm in order to complete the sale transaction. Except to the extent the sale and remittance procedure is utilized in connection with the exercise of the option for vested shares, payment of the exercise price for the purchased shares must accompany the exercise notice. B. Term and Exercise of Options. Each option granted under this Discretionary Option Grant Program shall be exercisable at such time or times and during such period as is determined by the Plan Administrator and set forth in the instrument evidencing the grant. No such option, however, shall have a maximum term in excess of ten (10) years from the grant date. During the lifetime of the Optionee, the option, together with any stock appreciation rights pertaining to such option, shall be exercisable only by the Optionee and shall not be assignable or transferable by the Optionee except for a transfer of the option effected by will or by the laws of descent and distribution following the Optionee’s death. C. Termination of Service. 1. The following provisions shall govern the exercise period applicable to any outstanding options under this Article Two held by the Optionee at the time of cessation of Service or death: — Should an Optionee cease Service for any reason (including death or Permanent Disability) while holding one or more outstanding options under this Article Two, then none of those options shall (except to the extent otherwise provided pursuant to subparagraph 3 below) remain exercisable for more than a thirty-six (36)-month period (or such shorter period determined by the Plan Administrator and set forth in the instrument evidencing the grant) measured from the date of such cessation of Service. — Any option held by the Optionee under this Article Two and exercisable in whole or in part on the date of his or her death may be subsequently exercised by the 7 personal representative of the Optionee’s estate or by the person or persons to whom the option is transferred pursuant to the Optionee’s will or in accordance with the laws of descent and distribution. The right to exercise such option, however, shall lapse upon the earlier of (i) the third anniversary of the date of the Optionee’s death (or such shorter period determined by the Plan Administrator and set forth in the instrument evidencing the grant) or (ii) the specified expiration date of the option term. Accordingly, upon the occurrence of the earlier event, the option shall terminate and cease to be outstanding. — During the applicable post-Service exercise period, the option may not be exercised in the aggregate for more than the number of shares (if any) in which the Optionee is vested at the time of his or her cessation of Service. Upon the expiration of the limited post-Service exercise period or (if earlier) upon the specified expiration date of the option term, each such option shall terminate and cease to he outstanding with respect to any vested shares for which the option has not otherwise been exercised. However, each outstanding option shall immediately terminate and cease to be outstanding, at the time of the Optionee’s cessation of Service, with respect to any shares for which the option is not otherwise at that time exercisable or in which the Optionee is not otherwise vested. — Under no circumstances shall any such option be exercisable after the specified expiration date of the option term. — Should (i) the Optionee’s Service be terminated for misconduct (including, but not limited to, any act of dishonesty, willful misconduct, fraud or embezzlement) or (ii) the Optionee make any unauthorized use or disclosure of confidential information or trade secrets of the Corporation or its parent or subsidiary corporations, then in any such event all outstanding options held by the Optionee under this Article Two shall terminate immediately and cease to be outstanding. 2. The Plan Administrator shall have complete discretion, exercisable either at the time the option is granted or at any time while the option remains outstanding, to permit one or more options held by the Optionee under this Article Two to be exercised, during the limited post-Service exercise period applicable under subparagraph 1 above, not only with respect to the number of vested shares of Common Stock for which each such option is exercisable at the time of the Optionee’s cessation of Service but also with respect to one or more subsequent installments of vested shares for which the option would otherwise have become exercisable had such cessation of Service not occurred. 3. The Plan Administrator shall also have full power and authority, exercisable either at the time the option is granted or at any time while the option remains outstanding, to extend the period of time for which the option is to remain exercisable following the Optionee’s cessation of Service or death from the limited period in effect under subparagraph 1 above to such greater period of time as the Plan Administrator shall deem appropriate. In no event, however, shall such option be exercisable after the specified expiration date of the option term. D. Stockholder Rights. An Optionee shall have no stockholder rights with respect to any shares covered by the option until such individual shall have exercised the option and paid the exercise price for the purchased shares. 8 E. Repurchase Rights. The shares of Common Stock acquired upon the exercise of any Article Two option grant may be subject to repurchase by the Corporation in accordance with the following provisions: — The Plan Administrator shall have the discretion to authorize the issuance of unvested shares of Common Stock under this Article Two. Should the Optionee cease Service while holding such unvested shares, the Corporation shall have the right to repurchase any or all of those unvested shares at the exercise price paid per share. The terms and conditions upon which such repurchase right shall be exercisable (including the period and procedure for exercise and the appropriate vesting schedule for the purchased shares) shall be established by the Plan Administrator and set forth in the instrument evidencing such repurchase right. — All of the Corporation’s outstanding repurchase rights under this Article Two shall automatically terminate, and all shares subject to such terminated rights shall immediately vest in full, upon the occurrence of a Corporate Transaction, except to the extent: (i) any such repurchase right is expressly assigned to the successor corporation (or parent thereof) in connection with the Corporate Transaction or (ii) such termination is precluded by other limitations imposed by the Plan Administrator at the time the repurchase right is issued. — The Plan Administrator shall have the discretionary authority, exercisable either before or after the Optionee’s cessation of Service, to cancel the Corporation’s outstanding repurchase rights with respect to one or more shares purchased or purchasable by the Optionee under this Discretionary Option Grant Program and thereby accelerate the vesting of such shares in whole or in part at any time. II. INCENTIVE OPTIONS The terms and conditions specified below shall be applicable to all Incentive Options granted under this Article Two. Incentive Options may only be granted to individuals who are Employees of the Corporation. Options which are specifically designated as Non-Statutory Options when issued under the Plan shall not be subject to such terms and conditions. A. Dollar Limitation. The aggregate Fair Market Value (determined as of the respective date or dates of grant) of the Common Stock for which one or more options granted to any Employee under this Plan (or any other option plan of the Corporation or its parent or subsidiary corporations) may for the first time become exercisable as incentive stock options under the Federal tax laws during any one calendar year shall not exceed the sum of One Hundred Thousand Dollars ($100,000). To the extent the Employee holds two (2) or more such options which become exercisable for the first time in the same calendar year, the foregoing limitation on the exercisability of such options as incentive stock options under the Federal tax laws shall be applied on the basis of the order in which such options are granted. Should the number of shares of Common Stock for which any Incentive Option first becomes exercisable in any calendar year exceed the applicable One Hundred Thousand Dollar ($100,000) limitation, then that option may nevertheless be exercised in that calendar year for the excess number of shares as a non-statutory option under the Federal tax laws. B. 10% Stockholder. If any individual to whom an incentive Option is granted is the owner of stock (as determined under Section. 424(d) of the Code) possessing ten percent (10%) or more of the total combined voting power of all classes of stock of the Corporation or any one of its 9 parent or subsidiary corporations, then the exercise price per share of the Common Stock subject to that option shall not be less than one hundred and ten percent (110%) of the Fair Market Value per share of that security on the grant date, and the option term shall not exceed five (5) years, measured from the grant date. Except as modified by the preceding provisions of this Section II, the provisions of Articles One, Two and Four of the Plan shall apply to all Incentive Options granted hereunder. III. CORPORATE TRANSACTIONS/CHANGES IN CONTROL A. In the event of any Corporate Transaction, each option which is at the time outstanding under this Article Two shall automatically accelerate so that each such option shall, immediately prior to the specified effective date for the Corporate Transaction, become fully exercisable for all of the shares of Common Stock at the time subject to such option and may be exercised for all or any portion of such shares. However, an outstanding option under this Article Two shall not so accelerate if and to the extent: (i) such option is, in connection with the Corporate Transaction, either to be assumed by the successor corporation or parent thereof or to be replaced with a comparable option to purchase shares of the capital stock of the successor corporation or parent thereof, (ii) such option is to be replaced with a cash incentive program of the successor corporation which preserves the option spread existing at the time of the Corporate Transaction and provides for subsequent payout in accordance with the same vesting schedule applicable to such option or (iii) the acceleration of such option is subject to other limitations imposed by the Plan Administrator at the time of the option grant. The determination of option comparability under clause (i) above shall be made by the Plan Administrator, and its determination shall be final, binding and conclusive. B. Immediately following the consummation of the Corporate Transaction, all outstanding options under this Article Two shall terminate and cease to be outstanding, except to the extent assumed by the successor corporation or its parent company. C. Each outstanding option under this Article Two which is assumed in connection with the Corporate Transaction or is otherwise to continue in effect shall be appropriately adjusted, immediately after such Corporate Transaction, to apply and pertain to the number and class of securities which would have been issued to the option holder, in consummation of such Corporate Transaction, had such person exercised the option immediately prior to such Corporate Transaction. Appropriate adjustments shall also be made to the exercise price payable per share, provided the aggregate exercise price payable for such securities shall remain the same. In addition, the class and number of securities available for issuance under the Plan on both an aggregate and per participant basis following the consummation of the Corporate Transaction shall be appropriately adjusted. D. The Plan Administrator shall have the discretion, exercisable either at outstanding, to provide (upon such terms as it may deem appropriate) for both (i) the automatic acceleration of one or more outstanding options granted under this Article Two Plan which are assumed or replaced in a Corporate Transaction and do not otherwise accelerate at that time and (ii) the immediate termination of one or more of the Corporation’s outstanding repurchase rights which are assigned in connection with such Corporate Transaction and do not otherwise terminate at that time, in the event the Optionee’s Service should subsequently terminate within a designated period following the effective date of such Corporate Transaction. 10 E. The Plan Administrator shall have the discretionary authority, exercisable either in advance of any actually-anticipated Change in Control or at the time of an actual Change in Control, to provide for the automatic acceleration of one or more outstanding options under this Article Two (and the immediate termination of one or more of the Corporation’s outstanding repurchase rights under this Article Two) upon the occurrence of the Change in Control. The Plan Administrator shall also have full power and authority to condition any such option acceleration (and the termination of any outstanding repurchase rights) upon the subsequent termination of the Optionee’s Service within a specified period following the Change in Control. F. Any options accelerated in connection with the Change in Control shall remain fully exercisable until the expiration or sooner termination of the option term. G. The grant of options under this Article Two shall in no way affect the right of the Corporation to adjust, reclassify, reorganize or otherwise change its capital or business structure or to merge, consolidate, dissolve, liquidate or sell or transfer all or any part of its business or assets. H. The exercisability as incentive stock options under the Federal tax laws of any options accelerated under this Section III in connection with a Corporate Transaction or Change in Control shall remain subject to the dollar limitation of Section II of this Article Two. To the extent such dollar limitation is exceeded, the accelerated option shall be exercisable as a non-statutory option under the Federal tax laws. IV. STOCK APPRECIATION RIGHTS. to implement the stock appreciation right provisions of this Section IV, one or more Optionees may be granted the right, exercisable upon such terms and conditions as the Plan Administrator may establish, to surrender all or part of an unexercised option under this Article Two in exchange for a distribution from the Corporation in an amount equal to the excess of (i) the Fair Market Value (on the option surrender date) of the number of shares of Common Stock in which the Optionee is at the time vested under the surrendered option (or surrendered portion thereof) over (ii) the aggregate exercise price payable for such vested shares. B. No surrender of an option shall be effective hereunder unless it is approved by the Plan Administrator. If the surrender is so approved, then the distribution to which the Optionee shall accordingly become entitled under this Section IV may be made in shares of Common Stock valued at Fair Market Value on the option surrender date, in cash, or partly in shares and partly in cash, as the Plan Administrator shall in its sole discretion deem appropriate. C. If the surrender of an option is rejected by the Plan Administrator, then the Optionee shall retain whatever rights the Optionee had under the surrendered option (or surrendered portion thereof) on the option surrender date and may exercise such rights at any time prior to the later of (i) five (5) business days after the receipt of the rejection notice or (ii) the last day on which the option is otherwise exercisable in accordance with the terms of the instrument evidencing such option, but in no event may such rights be exercised more than ten (10) years after the date of the option grant. D. One or more officers of the Corporation subject to the short-swing profit restrictions of the Federal securities laws may, in the Plan Administrator’s sole discretion, be granted limited stock appreciation rights with respect to their outstanding options under the Plan. Upon the occurrence of a Hostile Take-Over, the officer shall have a thirty (30)-day period in which he or she may 11 surrender any outstanding options with such a limited stock appreciation right in effect for at least six (6) months to the Corporation, to the extent such option is at the time exercisable for fully-vested shares of Common Stock. The officer shall in return be entitled to a cash distribution from the Corporation in an amount equal to the excess of (i) the Take-Over Price of the vested shares of Common Stock at the time subject to each surrendered option (or surrendered portion of such option) over (ii) the aggregate exercise price payable for such shares. The cash distribution payable upon such option surrender shall be made within five (5) days following the date the option is surrendered to the Corporation. Neither the approval of the Plan Administrator nor the consent of the Board shall be required in connection with such option surrender and cash distribution. Any unsurrendered portion of the option shall continue to remain outstanding and become exercisable in accordance with the terms of the instrument evidencing such grant. E. The shares of Common Stock subject to any option surrendered for an appreciation distribution pursuant to this Section IV shall not be available for subsequent issuance under the Plan. ARTICLE THREE DIRECTOR FEE PROGRAM I. ELIGIBILITY Subject to the availability of shares of Common Stock under the Plan pursuant to Article One, Section VI of the Plan, each individual serving as a non-employee Board member shall be eligible to apply all or any portion of the annual retainer fee otherwise payable to him or her in cash to the acquisition of unvested shares of Common Stock under this Article Three Program. II. ELECTION PROCEDURE A. Filing. The non-employee Board member must make the stock-in-lieu-of-fee election prior to the start of the calendar year for which the election is to be effective. The first calendar year for which any such election may be filed shall be the 1994 calendar year. The election must be filed with the Plan Administrator on the appropriate form provided for this purpose, and the election, once filed, shall be irrevocable. The election for any upcoming calendar year may be filed at any time prior to the start of that year, but in no event later than December 31 of the immediately preceding calendar year. The non-employee Board member may file a standing election to be in effect for two or more consecutive calendar years or to remain in effect indefinitely until revoked by written instrument filed with the Plan Administrator at least six (6) months prior to the start of the first calendar year for which such standing election is no longer to remain in effect. B. Election Form. On the election form, the non-employee Board member must indicate the percentage or dollar amount of his or her annual retainer fee to be applied to the acquisition of unvested shares under this Article Three Program to be issued in lieu of such fee. The non-employee Board member may elect to apply a portion of the fee to the acquisition of Common Stock. III. SHARE ISSUANCE A. Issue Date. On the first trading day in January of the calendar year for which the election is effective, the portion of the retainer fee subject to such election shall automatically be applied to the acquisition of the selected shares of Common Stock by dividing the elected dollar amount by the Fair Market Value per share of the Common Stock on that trading day. The number 12 of issuable shares shall be rounded down to the next whole share, and the issued shares shall be held in escrow by the Secretary of the Corporation until the non-employee Board member vests in those shares. The non-employee Board member shall have full stockholder rights, including voting, dividend and liquidation rights, with respect to all issued shares held in escrow on his or her behalf, but such shares shall not be assignable or transferable while they remain unvested. B. Vesting. Upon completion of each calendar quarter of Board service during the year for which the election is in effect, the non-employee Board member shall vest in one-fourth of the issued shares, and the stock certificate for those shares shall be released from escrow. Immediate vesting in all the issued shares shall occur in the event (i) the non-employee Board member should die or become Permanently Disabled during his or her period of Board service or (ii) there should occur a Corporate Transaction or Change in Control while such individual remains in Board service. Should such individual cease Board service prior to vesting in one or more quarterly installments of the issued shares, then those unvested shares shall immediately be surrendered to the Corporation for cancellation, and the non-employee Board member shall not be entitled to any cash payment or other consideration from the Corporation with respect to the cancelled shares and shall have no further stockholder rights with respect to such shares. IV. AMENDMENT OF THE DIRECTOR FEE PROGRAM A. Limited Amendments. The provisions of this Director Fee Program, together with the unvested share issuances outstanding under this Article Three, may not be amended at intervals more frequently than once every six (6) months, other than to the extent necessary to comply with applicable Federal income tax laws and regulations. ARTICLE FOUR MISCELLANEOUS I. NO LOANS OR INSTALLMENT PAYMENTS A. The Plan Administrator shall not, assist any Optionee (including an officer of the Corporation) in the exercise of one or more options granted to such Optionee under the Discretionary Option Grant Program, including the satisfaction of any Federal, state and local income and employment tax obligations arising therefrom, by (i) authorizing the extension of a loan from the Corporation to such Optionee or (ii) permitting the Optionee to pay the exercise price for the purchased shares in installments over a period of years. in connection with the acquisition of such shares. II. AMENDMENT OF THE PLAN AND AWARDS A. The Board has complete and exclusive power and authority to amend or modify the Plan (or any component thereof) in any or all respects whatsoever. However, (i) no such amendment or modification shall adversely affect rights and obligations with respect to options at the time outstanding under the Plan, unless the Optionee consents to such amendment, and (ii) any amendment made to the Director Fee Program (or any stock options or share issuances outstanding thereunder) shall be in compliance with the limitation of Section IV of Article Four. In addition, the Board may not, without the approval of the Corporation’s stockholders, amend the Plan to (i) materially increase the maximum number of shares issuable under the Plan, or increase the maximum number of shares of Common Stock for which any one participant may receive stock options, separately exercisable stock appreciation rights and direct share issuances over the term of the Plan, except for permissible adjustments under Section VI.F of Article One, (ii) materially 13 modify the eligibility requirements for plan participation or (iii) materially increase the benefits accruing to plan participants. B. Options to purchase shares of Common Stock may be granted under the Discretionary Option Grant Program, which are in excess of the number of shares then available for issuance under the Plan, provided any excess shares actually issued under the Discretionary Option Grant Program are held in escrow until stockholder approval is obtained for a sufficient increase in the number of shares available for issuance under the Plan. If such stockholder approval is not obtained within twelve (12) months after the date the first such excess option grants are made, then (i) any unexercised excess options shall terminate and cease to be exercisable and (ii) the Corporation shall promptly refund the purchase price paid for any excess shares actually issued under the Plan and held in escrow, together with interest (at the applicable Short Term Federal Rate) for the period the shares were held in escrow. C. The Board will not have the authority, at any time, without the approval of the holders of a majority of the issued and outstanding Common Stock to (i) reduce the exercise price of any Incentive Options or Non-Statutory Options (“Options”) under the Plan that are currently outstanding; or (ii) cancel any outstanding Options under the Plan and grant in substitution therefore new Options under the Plan at a lower exercise price, regardless of whether or not the cancelled Options revert to and again become available for issuance under the Plan. This Section II C of Article Four may not be amended without the affirmative vote of the holders of a majority of the shares of Common Stock present or represented and entitled to vote at a duly convened meeting of the stockholders. Notwithstanding the foregoing, this paragraph will not be construed to apply to (i) “issuing or assuming a stock option in a transaction to which section 424(a) applies,” within the meaning of Section 424 of the Code; (ii) the provisions of Options which relate to adjustments for any Corporate Transaction or any stock split, stock or cash dividend, recapitalization, combination of shares, exchange of shares or other change affecting the outstanding Common Stock as a class. III. TAX WITHHOLDING A. The Corporation’s obligation to deliver shares of Common Stock upon the exercise of stock options for such shares or the vesting of such shares under the Plan shall be subject to the satisfaction of all applicable Federal, state and local income and employment tax withholding requirements. B. The Plan Administrator may, in its discretion and in accordance with the provisions of this Section III of Article Four and such supplemental rules as the Plan Administrator may from time to time adopt (including the applicable safe-harbor provisions of Securities and Exchange Commission Rule 16b-3), provide any or all holders of Non-Statutory Options or unvested shares (other than the unvested shares issued under the Director Fee Program) with the right to use shares of the Corporation’s Common Stock in satisfaction of all or part of the Federal, state and local income and employment tax liabilities incurred by such holders in connection with the exercise of their options or the vesting of their shares (the “Taxes”). Such right may be provided to any such holder in either or both of the following formats: Stock Withholding: The holder of the Non-Statutory Option or unvested shares may be provided with the election to have the Corporation withhold, from the shares of Common Stock otherwise issuable upon the exercise of such Non-Statutory Option or the vesting of the shares, a portion of those shares with an aggregate Fair Market Value equal to the percentage of the applicable Taxes (not to exceed one hundred percent (100%)) designated by the holder. 14 Stock Delivery: The Plan Administrator may, in its discretion, provide the holder of the Non-Statutory Option or the unvested shares with the election to deliver to the Corporation, at the time the Non-Statutory Option is exercised or the shares vest, one or more shares of Common Stock previously acquired by such individual (other than in connection with the option exercise triggering the Taxes) with an aggregate Fair Market Value equal to the percentage of the Taxes incurred in connection with such option exercise or share vesting (not to exceed IV. EFFECTIVE DATE AND TERM OF PLAN A. The 1993 Plan originally became effective immediately upon adoption by the Board on November 29, 1993. The Plan, as amended hereby, will become effective immediately upon approval by the Company’s stockholders at the Annual Meeting on June 27, 2006. Stock options may be made under the Plan, as amended hereby, immediately thereafter upon the effective date of this amendment. B. The Plan shall terminate upon the earlier of (i) December 31, 2020 or (ii) the date on which all shares available for issuance under the Plan shall have been issued or cancelled pursuant to the exercise, surrender or cash-out of the options granted under the Plan or the issuance of shares (whether vested or unvested) under the Director Fee Program. If the date of termination is determined under clause (i) above, then all option grants and unvested share issuances outstanding on such date shall thereafter continue to have force and effect in accordance with the provisions of the instruments evidencing such grants or issuances. V. USE OF PROCEEDS Any cash proceeds received by the Corporation from the sale of shares pursuant to option grants or share issuances under the Plan shall be used for general corporate purposes VI. REGULATORY APPROVALS A. The implementation of the Plan, the granting of any option under the Plan, the issuance of any shares under the Director Fee Program and the issuance of Common Stock upon the exercise or surrender of the option grants made hereunder shall be subject to the Corporation’s procurement of all approvals and permits required by regulatory authorities having jurisdiction over the Plan, the options granted under it and the Common Stock issued pursuant to it. B. No shares of Common Stock or other assets shall be issued or delivered under this Plan unless and until there shall have been compliance with all applicable requirements of Federal, and state securities laws, including the filing and effectiveness of the Form S-8 registration statement for the shares of Common Stock issuable under the Plan, and all applicable listing requirements of any securities exchange on which the Common Stock is then listed for trading. VII. NO EMPLOYMENT/SERVICE RIGHTS Neither the action of the Corporation in establishing the Plan, nor any action taken by the Plan Administrator hereunder, nor any provision of the Plan shall be construed so as to grant any individual the right to remain in the Service of the Corporation (or any parent or subsidiary corporation) for any period of specific duration, and the Corporation (or any parent or subsidiary corporation retaining the services of such individual) may terminate such individual’s Service at any time and for any reason, with or without cause. 15 VIII. MISCELLANEOUS PROVISIONS A. Except to the extent otherwise expressly provided under the Plan, the right to acquire Common Stock or other assets under the Plan may not be assigned, encumbered or otherwise transferred by any Optionee or Participant. B. The provisions of the Plan relating to the exercise of options and the vesting of shares shall be governed by the laws of the State of California, as such laws are applied to contracts entered into and performed in such State. C. The provisions of the Plan shall inure to the benefit of, and be binding upon, the Corporation and its successors or assigns, whether by Corporate Transaction or otherwise, and the Optionees and any holders of unvested shares under the Plan, the legal representatives of their respective estates, their respective heirs or legatees and their permitted assignees. IN WITNESS WHEREOF, the undersigned being the duly authorized and elected President and Chief Executive Officer of the Corporation has executed this Amended and Restated 1993 Stock Option/Stock Issuance Plan as of June 27, 2006. /s/Raymond J. Pacini Raymond J. Pacini 16
Name: Commission Regulation (EEC) No 1514/88 of 30 May 1988 laying down implementing procedures for the import arrangements applicable to products falling within CN codes 0714 10 90 and 0714 90 10, originating in third countries which are not members of GATT, other than the People' s Republic of China, during 1988 Type: Regulation Date Published: nan 1 . 6 . 88 Official Journal of the European Communities No L 135/49 COMMISSION REGULATION (EEC) No 1514/88 of 30 May 1988 laying down implementing procedures for the import arrangements applicable to products falling within CN codes 0714 10 90 and 0714 90 10, originating in third countries which are not members of GATT, other than the People's Repu blic of China, during 1988 Whereas in the light of past experience and the situation described above provisions should be triade for preventing applications covering abnormally large quantities by setting a maximum quantity per appplication and by providing that in no circumstances may an application cover a quantity exceeding that in the possession of the applicant ; whereas for the purposes of monitoring and administrative efficiency, applications for licences covering goods placed under the procedures referred to above must be lodged with the competent authorities in the Member State where the goods are stored ; Whereas in order to ensure the proper administration of the impprt arrangements concerned and to prevent the quantities laid down for 1988 from being exceeded, special provision should be made as regards the lodging of applications and the issuing of licences ; whereas these provisions either supplement or derogate form the provisions of Commission Regulation (EEC) No 3183/80 of 3 December 1980 laying down common detailed rules for the application of the system of import and export licences and advance fixing certificates for agricultural products (3), as last amended by Regulation (EEC) No 2082/87 0 ; ' Whereas in order to ensure the smooth functioning of the arrangements laid down by this Regulation, users should be required to provide a substantial security ; Whereas in implementing the second paragraph of Article 1 of Regulation (EEC) No 1314/88 , the types of product which are used for direct human consumption should be determined by reference to the form of presen tation in which they are traditionally imported and the type of packaging which is used ; whereas in the absence of quantitative restrictions on imports of these products, the conditions govering applications for and the issuing of licences should be made more flexible ; Whereas the Management Committee for Cereals has not deliverd an opinion within the period set its Chairman, THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Economic Community, Having regard to Council Regulation (EEC) No 430/87 of 9 February 1987 concerning the import arrangements applicable to products falling within subheading 0706 A of Common Customs Tariff and coming from third countries and amending Regulation (EEC) No 950/68 of the Common Customs Tariff ('), and in particular Article 2 thereof, Having regard to Council Regulation (EEC) No 1314/88 of 26 April 1988 , concerning the import arrangements applicable to products falling within CN codes 0714 10 90 and 0714 90 10 originating in certain third countries which are not members of GATT, other than the People's Republic of China during 1988 (2), and in particular Article 2 thereof, Whereas pursuant to the abovementionend Regulation (EEC) No 430/87 products faling within the former subheading 0706 A of the Common Customs Tariff, incorporated in the combined nomenclature in force since 1 January 1988 under codes 0714 10 90 and 0714 90 10, originating in third countries which are not members of GATT, other than the People's Republic of China, are subject on import to a levy of not more than 6 % ad valorem within the limits of a maximum quantity set by Regulation (EEC) No 1314/88 at 30 000 tonnes for 1988 ; whereas, however, this quantitative restriction does not apply to products used only for direct human consumption ; whereas the implementing procedures for these arrangements should be adopted for 1988 ; Whereas in the case of products originating in Vietnam provision should be made for the application for an import licence to be accompanied by a certificate issued on the initiative of the exporting country, for the purpose of checking the actual amounts imported ; whereas, however, it is necessary to take into account the special position of goods which could not be imported under the arrangements in question for 1987 because the quantities allowed at that time were exhausted particularly rapidly and the goods havfe since been under customs warehousing or free zone procedures pending the establishment by the Council of the quota for 1988 ; whereas in order to avoid deflections of trade which would adversely affect management of the 1988 quota, the goods must have been placed under the abovementioned procedures before 1 January 1988 ; HAS ADOPTED THIS REGULATION : Article 1 Products falling within CN codes 0714 10 90 and 0714 90 10, originating in third countries which are not members of GATT, other than the People's Republic of 0) OJ No L 43, 13 . 2. 1987, p. 9 . 0 OJ No L 123, 17. 5. 1988, p . 1 . (3) OJ No L 338 , J 3 . 12. 1980, p. 1 .(4) OJ No L 195, 16 . 7. 1987, p. 11 . No L 135/50 Official Journal of the European Communities 1 . 6 . 88 China, shall qualify for the arrangements laid down in Article 1 of Regulation (EEC) No 430/87, subject to the provisions of this Regulation. in respect of which the application was made, their origin and the identity of the applicant. 3 . The Commission shall notify the Member States by telex not later than the Friday of the same week of the extent to which the applications can be granted. If the amounts for which licences have been applied for exceed the quantities available, the Commission shall specify by telex a uniform percentage reduction in the quantities concerned. 4. Without prejudice to the provisions of paragraph 3, licences shall be issued on the fifth working day following the lodging of the application as provided for in paragraph 1 , other than in exceptional cases determined by the Commission . Licences shall be valid anywhere in the Community from the actual date of issue until the end of the fourth month following that date . However, the period of validity may not extend beyond 31 December of the year in question . Article 4 Box 20 (a) of the licence shall contain one of the following entries : ExacciÃ ³n reguladora a percibir 6 % ad valorem Importafgift : 6 % af vÃ ¦rdien Zu erhebende AbschÃ ¶pfung : 6 % des Zojlwerts Ã Ã ¹Ã Ã Ã ¿Ã Ã ¬ ÃÃ Ã ¿Ã Ã µÃ ¯Ã ÃÃ Ã ±Ã ¾Ã · : 6% Ã ºÃ ±Ã ' Ã ±Ã Ã ¯Ã ± Amount to be levied : 6 % ad valorem PrÃ ©lÃ ¨vement Ã percevoir : 6 % ad valorem TITLE I General provisions Article 2 1 . Applications for licences may not cover a quantity greater than 7 500 tonnes per individual interested party acting on his own behalf, without prejudice to the provisions of paragraph 3 . 2. Box 14 of the import licence application and of the licence issued shall indicate the third country in which the product in question originates. The licence shall require the product to be imported from that country. 3 . An application for a licence to import products originating in Vietnam shall be admissible if it is accompanied by a certificate made out by the Vietnamese authorities for 1988 that bears an attestation, provided that it does not relate to a quantity in excess of that mentioned in the attestation . However, by was of derogation from the first subparagraph, any application for a licence relating to products exported from Vietnam before 1 Janaury 1988 shall be admissible provided that : it is accompanied by a copy of a document certifying origin, drawn up by the Vietnamese authorities before 1 January 1988 ; the document may be presented in support of only one application for a licence, it is also accompanied by attestation from the customs authorities of a Member State of the Community to the effect that the quantities in question were placed under customs warehousing or free zone procedures before 1 January 1988, it does not concern a quantity in excess of that stored under those procedures as specified in the attestation . For the purposes of the second subparagraph, the application shall be made to the competent authorities of the Member State in which the goods are stored. Article 3 1 . Applications for licenses must be lodged with the competent authorities of a Member State by 1 p.m. (Brussels time) on any Monday or, if Monday is not a working day, on the next working day. The first day for applications shall be Monday, 13 June 1988 . 2. Member States shall notify the Commission by telex not later than 1 p.m. on the day following lodging of an application , as specified in paragraph 1 , of the quantities Prelievo da riscuotere : 6 % ad valorem Toe te passen heffing : 6 % ad valorem Direito nivelador a cobrar : 6 % ad valorem Article 5 1 . By way of derogation from Article 12 ( 1 ) of Commission Regulation (EEC) No 2042/75 ('), the amount of the security relating to import licences shall be 50 ECU per tonne . 2. Where because of the operation of Article 3 (3) the quantity for which the licence is issued is smaller than that covered by the application, the amount of the security corresponding to the difference shall be released. 3 . the provisions of the third indent of Article 5 ( 1 ) of Regulation (EEC) No 3183/80 shall not apply. Article 6 By way of derogation from Article 8 (4) of Regulation (EEC) No 3183/80, the quantity released for free circulation may not exceed that indicated in boxes 10 and 11 of the import licence . For this purpose the figure 0 shall be entered in box 22 of the licence . (') OJ No L 213, 11 . 8 . 1975, p. 5. 1 . 6 . 88 Official Journal of the European Communities No L 135/51 TITLE II Import of products of types used for direct human consumption Article 7 The provisions of Title I shall not apply to imports of products falling within CN codes 0714 10 90 and 0714 90 10 of a kind used for human consumption, in immediate packings of a net content of 28 kg or less, either fresh and whole or without skin and frozen, whether or not sliced, on completion of the customs formalities for placing the goods in free circulation, subject to the provision of this Title. Article 8 1 . The application for an import licence, and the licence issued, shall include in box 14 the name of the third country in which the product in question originates . The licence shall require the product to be imported from that country. 2. Box 20 (a) of the licence shall contain one of the entries listed in Article 4. 3 . Member States shall without delay notify the Commission by telex of the quantities covered by an application, the origin of the products and the name of the applicant. The licence shall be issued on the third working day following the lodging of the application, unless the Commission has notified the authorities of the Member Statfe by telex that the conditioning for the granting of applications have not been met. Licences shall be valid anywhere in the Community from the date of issue until the end of the ' fourth month following that date. However, the period of validity may not extend beyond 31 December of the year in question . 4. The amount of the security relating to the import licence shall be 15 ECU per tonne. 5. The provisions of the third indent of Article 5 ( 1 ) of Regulation (EEC) No 3183/80 shall not apply. 6. The provisions of Article 3 ( 1 ) and (2) and of Article 6 shall apply. Article 9 This Regulation shall enter into force on the eighth 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 Mates. Done at Brussels, 30 May 1988 . For the Commission Frans ANDRIESSEN Vice-President
Exhibit 10.1 AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT THIS AGREEMENT is entered into as of August 25, 2006 by and between HearUSA, Inc., having its principal office at 1250 Northpoint Parkway, West Palm Beach, Florida 33407 (“Borrower”) and Siemens Hearing Instruments, Inc., having an office at 10 Constitution Avenue, Piscataway, New Jersey 08854 (the “Lender”) and amends that certain Amended And Restated Credit Agreement between the parties dated as of February 10, 2006 (the “Credit Agreement”). All capitalized terms not otherwise defined herein shall have the same meaning as set forth in the Credit Agreement. RECITALS Whereas, Borrower and Lender have agreed to modify the terms of the Credit Agreement as set forth in this Amendment To Amended And Restated Credit Agreement (“Agreement”). Now, therefore, in consideration of the Lender’s continued extension of credit and the agreements contained herein, the parties agree as follows: AGREEMENT 1. MODIFICATIONS. The Credit Agreement be and hereby is modified as follows: (A) Definitions. (i) The following definitions are hereby added to the Credit Agreement: “Tranche C-1 Loan”, “Tranche C-2 Loan,” and “Tranche C-3 Loan” shall have the meanings specified in Section 2.03(c). (ii) The definition of “Tranche C Loan” is hereby deleted, and replaced with the following: “Tranche C Loan” has the meaning specified in Section 2.01(c), and shall include the Tranche C-1 Loan, the Tranche C-2 Loan, and the Tranche C-3 Loan. (iii) The definition of “Tranche C Loan Commitment” is hereby deleted, and is replaced with the following: “Tranche C Loan Commitment” means the commitment of the Lender to make the Tranche C Loan to the borrower on the Closing Date in the principal amount of $21,064,665.09 and the option of the Lender to make additional Tranche C Loans to the Borrower pursuant to Section 2.01(c), all in an aggregate principal amount not to exceed $26,000,000 less any amounts outstanding under the Tranche A Loan and Tranche B Loan. (B) Section 2.03(c) is hereby deleted, and replaced by new Section 2.03(c) to read as follows: (c) Repayment of Tranche C Loans. (i) Tranche C-2 Loan. Effective on the Closing Date, the principal balance of the Tranche C-1 Loan was $6,636,130.93 (the “Tranche C-2 Loan”). On the first day of each month commencing on the first day of March 2006 and ending on the Maturity Date (a “Tranche C Monthly Payment Date”) the Borrower shall repay the principal balance of the Tranche C- 1 2 Loan, along with accrued and unpaid interest thereon as provided by Section 2.06(b), in equal amortized monthly payments each in an amount of $130,000 (each such amount the “Fixed Monthly Tranche C Payment”). (ii) Tranche C-1 and Tranche C-3 Loans. Effective on the Closing Date, the principal balance of the Tranche C-1 Loan was $14,428,534.16 (the “Tranche C-1 Loan”). Effective on the Closing Date, the principal balance of the Tranche C-3 Loan was $0 (the “Tranche C-3 Loan”). All loans made under Tranche C until and including June 30, 2006 shall be made as Tranche C-1 Loans and all loans made under Tranche C after June 30, 2006 shall be Tranche C-3 Loans. On the 20th day after the last day of each Fiscal Quarter commencing with the fourth quarter of 2006 (i.e., on January 20, 2007) and ending on the Maturity Date (a “Tranche C Quarterly Payment Date”), subject to the deemed payments credits as contemplated by Section 2.03(d) below, the Borrower shall pay an amount equal to $730,000, plus accrued and unpaid interest as provided by Section 2.06(b) (each such amount, the “Required Tranche C Quarterly Payment”), which shall be applied to the following Loans, to the extent of their outstanding balances, in the following order: first, to the Tranche C-1 Loan, then to the Tranche C-3 Loan, then to the Tranche C-2 Loan, then to the Tranche B Loan. (C) Section 2.06(b) is hereby deleted, and replaced by new Section 2.06(b) The parties acknowledge that interest shall accrue on the principal balance of the Tranche C-2 Loan made on the Closing Date at the fixed rate of 7.44465% per annum, payable monthly, in advance, in accordance with Section 2.03(c). The Tranche C-1 Loan shall accrue interest at a rate per annum equal at all times to the Prime Rate plus 1.0% and shall be payable on the 20th day after the end of each Fiscal Quarter, subject to the deemed payments credits as contemplated by Section 2.03(d). With respect to each Tranche C-3 Loan, Borrower agrees that such Loans shall accrue interest at a rate per annum equal at all times to the Prime Rate plus 1.0% from the date deemed made until the principal amount thereof shall be paid in full; however, such interest shall accrue and be added to the principal amount of the Tranche C-3 Loan (i.e., compounded) on each Tranche C Quarterly Payment Date until paid in full, except that such accrued interest under Tranche C-3 Loans shall not be compounded, but shall instead become due and payable on each Tranche C Quarterly Payment Date, to the extent that compounding such interest would cause the aggregate amount of all Obligations to exceed the Tranche C Loan Commitment. Each Tranche C-3 Loan shall be deemed to be made on the first day of the Fiscal Quarter in which such Tranche C Loan is made. (D) Section 2.05 is hereby deleted, and replaced by new Section 2.05 to read as follows: Section 2.05. Mandatory Prepayment of Loans. (a) The Borrower shall prepay the Loan Balance upon receipt by the Borrower or any of its Subsidiaries of the net proceeds of any issuance of Stock or Stock Equivalents by the Borrower or any of its Subsidiaries (other than the proceeds received by the Borrower in connection with the exercise by any of the Borrower’s or its Subsidiaries’ employees of any option issued pursuant to any of the Borrower’s or its Subsidiaries’ stock option plans), in an amount equal to 25% of such net proceeds. Such prepayment shall be applied as set forth in Section 2.05(c). 2 (b) The Borrower shall prepay the Loan Balance within 120 days after the last day of each fiscal year, in an amount equal to 20% of Excess Cash Flow for such fiscal year. (c) Prepayments under 2.05(a) and 2.05(b) shall be required during the existence of any outstanding balance under, and shall be applied to, the order: first, to the Tranche C-3 Loan, then to the Tranche C-2 Loan, then to the Tranche C-1 Loan, then to the Tranche B Loan. (E) Section 4.12 is hereby deleted, and replaced by new Section 4.12 to read as follows: Section 4.12. Acknowledgement of Outstanding Obligations. The Borrower acknowledges and agrees that, as of the Closing Date, the sum of TWO MILLION TWO HUNDRED SIXTY-FOUR THOUSAND THREE HUNDRED NINETY-SEVEN AND THIRTY-ONE ONE-HUNDREDTHS United States Dollars ($2,264,397.31) will be due and owing under the Tranche A Loan, and the sum of TWENTY-ONE MILLION SIXTY-FOUR THOUSAND SIX HUNDRED SIXTY-FIVE AND NINE ONE-HUNDREDTHS United States Dollars ($21,064,665.09) will be due and owing under the Tranche C Loan. (F) Schedule I is hereby deleted, and replaced by new Schedule I attached hereto. 2. ADDITIONAL ACKNOWLEDGMENTS. Borrower acknowledges and represent that: (A) The payment of $130,000 made by the Borrower to the Lender on or about February 24, 2006 for application against those portions of the indebtedness under the Original Loan Agreement which were ultimately rolled into the Tranche C Loan to be repaid at the rate of $130,000 per month, shall not be credited to the Tranche C Loan, but shall instead be credited against the related prior balance due under the Original Loan Agreement. (B) The Credit Agreement and other Loan Documents, as amended hereby, are in full force and effect without any defense, claim, counterclaim, right or claim of set-off; (C) After giving effect to this Agreement, no Default or Event of Default under the Loan Documents has occurred; (D) Borrower has taken all necessary action to authorize the execution and delivery of this Agreement; and (E) This Agreement is a modification of an existing obligation and is not a novation. 3. MISCELLANEOUS. This Agreement shall be construed in accordance with and governed by the laws of the applicable state as originally provided in the Loan Documents, without reference to that state’s conflicts of law principles. This Agreement and the other Loan Documents constitute the sole agreement of the negotiations and prior writings with respect to the subject matter thereof. No amendment of this Agreement, and no waiver of any one or more of the provisions hereof shall be effective unless set forth in writing and signed by the parties hereto. The illegality, unenforceability or inconsistency of any provision of this Agreement shall not in any way affect or impair the legality, enforceability or consistency of the remaining provisions of this Agreement or the other Loan Documents. This Agreement and the other Loan Documents are intended to be consistent. However, in the event of any inconsistencies among this Agreement and any of the Loan Documents, the terms of this Agreement, then the Credit Agreement, shall control. 3 4. COUNTERPARTS. This Agreement may be executed in any number of counterparts and by the different parties on separate counterparts. Each such counterpart shall be deemed an original, but all such counterparts shall together constitute one and the same agreement. IN WITNESS WHEREOF, the undersigned have signed and sealed this Agreement the day and year first above written. HEARUSA, INC. BY: Name: Title: SIEMENS HEARING INSTRUMENTS, INC. 4 Schedule I ACQUISITION GUIDELINES This Schedule I sets forth the manner in which Lender shall advance monies under either the Tranche B or Tranche C-3 Loans, which funds must be used by the Borrower for the acquisition or investment by Borrower in a Subsidiary or another Person, or a division, group or individual(s) (each, an “Acquisition Target”) either through an acquisition (of either Stock or other securities or assets), merger or organic growth. To the extent that the Lender advances such monies, such advances shall be calculated in accordance with the following guidelines: 1) If an Acquisition Target purchases less than or equal to 40% of its hearing aids from Lender or an affiliate of Lender, then Lender shall be required to make a Loan under Tranche B in the amount calculated as set forth below. If an Acquisition Target purchases more than 40% of its hearing aids from Lender or an affiliate of Lender, then Lender may, in its sole and absolute discretion, choose to make a Loan under Tranche B in the amount calculated as set forth below. If Lender makes a Loan under Tranche B, it may also, in its sole and absolute discretion, choose to make an additional Loan under Tranche C in the amount calculated as set forth below. 2) If Lender makes a Loan under Tranche B, the Loan will be in an amount corresponding to 1/3 of no more than 70% of the last twelve months’ trailing net revenues of the Acquisition Target. To the extent that any funds are requested by Borrower in excess of this formula, and to the extent that Lender determines, in its sole and absolute discretion, to make a Loan for such additional sum, such additional sum will be made, if at all, as a Tranche C-1 Loan for those loans made on or before June 30, 2006 and Tranche C-3 for those made after June 30, 2006. 3) A Stand-Alone Acquisition is made when the Acquisition Target, once acquired, remains in a separate location and has a separate “ship to” account with Siemens. 4) A Roll-In Acquisition is made when the Acquisition Target has its assets rolled into an existing location of Borrower and Borrower uses an already existing “ship to” account with Siemens for such Acquisition Target. 5
U.S. SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ANDAIN, INC. (Exact Name of Company as Specified in Its Charter) Nevada

Title: Pennsylvania. Can a friend use my property as his rental property to make money without me charging him? Question:I have no interest or experience in renting. I was gifted a home for my grandmother, not worth much but not going to use and my friend offered to pay me to use it as a rental property. This is a really good friend and I don't want any of his money. He agreed to pay any operating expenses and also offer to do some renovations for free. Is anything about this illegal? Me being the owner of the house but not the owner of the rental company? Looking for legal advice not friendship advice. Answer #1: Yes, it's legal - it's essentially you're owning and they are managing. I will give you the same advice I give anyone wanting to rent - talk it over with a lawyer that handles landlord/tenant law first. Your friend should do so as well, but with a different lawyer. Then the lawyers can draft an agreement on how this will work, so that both of you are protected. You should also ask them how insurance should be handled in this situation. There are many ways for being a landlord to go pearshaped, and only some of them can be prevented by proper preparation. Answer #2: You may wish to take some money from him for home insurance, as any injuries that may happen at the house will go through the home insurance that you should be carrying.
Title: Highschool made me sign a paper for a class Question:I joined this class, and am suppose to stay for one year, but the class is not a class that needs to be taken in an order, as in I could leave and come back and not have missed anything. The paper they made me sign said I'd stay for one year, but I dislike everything about the class. It's very selective, so I won't say the name, but basically I want to quit for the next semester. I'm going to confront my counselor, but I'm worried she'll bring up that paper. I'm only 15 and live in Minnesota. Do I have to stay in the class because I signed the paper? Thanks in advance for the help. Answer #1: Was it English by chance?
Exhibit 21.1 CHINA XD PLASTICS COMPANY LIMITED List of Subsidiaries Company Name Jurisdiction of Incorporation Favor Sea (US) Inc. New York, United States of America Favor Sea Limited British Virgin Islands Hong Kong Engineering Plastics Company Limited Hong Kong Harbin Xinda Macromolecule Material Co., Ltd. People’s Republic of China Harbin Xinda Macromolecule Materials Research Center Co., Ltd. People’s Republic of China Harbin Xinda Macromolecule Material Engineering Center Co., Ltd. People’s Republic of China Heilongjiang Xinda Software Development Co., Ltd. Harbin Xinda Macromolecule Materials Testing Technical Co., Ltd Harbin Meiyuan Enterprise Management Service Company Limited U.S. China XD Plastics Company Limited Harbin Representative Office Heilongjiang Xinda Enterprise Group Technology CenterCompany Limited Heilongjiang Xinda Enterprise GroupCompany Limited Haikou Xinda Plastics New Materials Company Limited Haikou Xinda Plastics New Materials Enterprise Technical Center Company Limited Haikou Xinda Software Development Company Limited Harbin Xinda Plastics Material Research Center Company Limited Hong Kong Engineering Plastics Company Limited Harbin Representative Office People’s Republic of China People’s Republic of China People’s Republic of China People’s Republic of China People’s Republic of China People’s Republic of China People’s Republic of China People’s Republic of China People’s Republic of China People’s Republic of China People’s Republic of China
Title: Pulled over for passing ice cream truck Question:Hello - I live in Detroit and was recently pulled over for passing an ice cream truck. The ice cream truck had a small stop sign that looked fake, and I did not realize I was supposed to treat it as a stop sign. I stopped briefly and proceeded with caution. Afterwards, I was pulled over and threatened with a ticket. The officer said the law states a person must stop and wait for the ice cream truck to leave before going around. However this could be 20 mins or so typically. Is anyone aware if this is a law, or how I could find or if it is? Answer #1: [Detroit Ordinances § 55-11-2.](http://detroit-mi.elaws.us/code/coor_ptiii_ch55_artxi_sec55-11-2) (a) The driver of a vehicle meeting or overtaking, from either direction, an ice cream truck stopped on the street shall stop before reaching the truck when the flashing lights and stop signal arm described in section 55-11-3 are in use. After stopping a driver may proceed past such truck at a reasonable and prudent speed, not exceeding fifteen (15) miles per hour, and shall yield the right-of-way to any pedestrian who crosses the roadway to or from the ice cream truck. (b) The driver of a vehicle on a street with separate roadways need not stop upon meeting or passing an ice cream truck on a different roadway.Answer #2: This is what i like to see on r/legaladvice. Someone posting the definitive answer with the law in question from OP's location.
Title: [California] HOA leaving pool closed most of the year, but CC&R/ governing documents appear to say otherwise? Question:When my parents first moved to the neighborhood, the HOA managed pool and jacuzzi were open year-round. Last year, it was was open from April to November. Now, the board won't open it until "late may" for unspecified reasons. This trend is beginning to bother us. There is nothing in the governing documents about a monthly time frame for which the pool will be open. The only rules directly regarding the pool ("Pool Rules" page) say that the pool is open from 8am-10pm daily. I also found a passage in the HOA covenant that says all "Improvements" (with the pool being defined as one) must be maintained, repaired and kept in an "orderly condition at all times". However, it says earlier that these obligations will be performed "at such times as the Board shall prescribe". I would be more specific with the covenant's language, but it would go against this sub's rules. From this limited info, does the HOA appear to have an obligation to keep the pool/jacuzzi open year-round? Any help with this would be greatly appreciated! Answer #1: Before trying to go the "legally you have to do this..." route, have you (or rather your parents) tried reaching out to the HOA or gone to a meeting and just asked "So we used to be able to use the pool year round, but it's been closed the last 6 months. What gives?". All nice and friendly like, no need to make any accusations, just asking the question - but insisting on an answer if they try to dodge it. Could be they have some legitimate reasons. Could be they are just cheap or lazy. But it doesn't hurt to ask nicely about it as the first step.Answer #2: Pools cost money to maintain and operate. Not just chemicals and cleaning, but also liability insurance and complying with liability insurance's requirements - possibly a lifeguard, an emergency phone, etc. With that said, it's possible that your HOA does not have enough funds from the general dues to keep the pool open more often than it's current schedule. If membership in the pool requires separate dues, there may not be enough interest from the tenants to pay for a longer period. Source - our former HOA had this issue, and the pool was completely closed for one year before they were able to reopen and comply with liability insurance requirements.Answer #3: >From this limited info, does the HOA appear to have an obligation to keep the pool/jacuzzi open year-round? No. "Orderly condition" does not mean "open."
Exhibit 10.2 LIMITED LICENSE AGREEMENT This Agreement is entered into by and between ZIVO Bioscience, Inc., a Nevada corporation (“ZIVO”) whose address is 2804 Orchard Lake Road, Suite 202 Keego Harbor, MI 48320 and NutriQuest, LLC, an Iowa limited liability company (“NutriQuest”) whose address is 3782 9th Street South West, Mason City, IA 50401. WHEREAS, on or about November 28, 2016 the parties entered into a conditional Letter of Intent in connection with a proposed limited exclusive license agreement and the parties now desire to enter this Limited License Agreement (the “Agreement”) to set forth the definitive terms and conditions for said exclusive license agreement. NOW THEREFORE, in consideration of the above recital and the mutual covenants and the agreements set forth below, and other good and valuable consideration, the receipt and adequacy of which is acknowledged, the parties agrees as follows: 1. Limited License. ZIVO grants to NutriQuest a limited, exclusive license to market, distribute sell and collect the sales proceeds in all ZIVO’s nutrition, feed additive and supplementation applications naturally-derived algal biomass (“Biomass”) and extraction products (collectively the “Products”) for oral administration in livestock and/or poultry species. Said license shall specifically exclude ZIVO’s proprietary isolated bioactive compounds or their isoforms, or any synthetics homologs or isoforms derived thereof (the “Excluded Products”). The license shall further specifically exclude any rights with respect to pet foods, aquaculture, or any medicinal or therapeutic uses or derivations in humans, pet foods or aquaculture. 2. Term. This Agreement remains in force for the entire useful life of the Products, provided the mutually agreed performance and sales minimums are achieved and maintained by NutriQuest and the product volumes delivered and quality standards are achieved and maintained by ZIVO (the “Standards”). The initial Standards for the parties are set forth on Exhibit “A” attached hereto. These Standards will be re-reviewed and mutually agreed upon annually, in writing, within 30 days of the start of each calendar year. In the event that the parties are unable to agree on such standards at any time, this Agreement will be terminated and ZIVO will pay a termination fee to NutriQuest calculated as follows: 3 times NutriQuest’s 50% share of Gross Profit (as defined in Section 4 below) for the most recent 12-month annualized period. 3. Performance. 3.1 NutriQuest Non-Performance. If NutriQuest is unable to meet the mutually agreeable performance and sales minimums, ZIVO can, at its sole discretion, offer a buyout of the exclusive license granted herein within 60 days. The buy-out price shall be calculated as follows: 3 times NutriQuest’s 50% share of Gross Profit (as defined in Section 4 below) for the most recent 12-month annualized period, in total, or by country or region where such expectations have not been met. If the buy-out is by country or region, then ZIVO’s buy-out of the exclusive license granted herein shall only apply to such country or region and ZIVO’s exclusive license granted to NutriQuest shall continue to all remaining countries and regions. Nothing herein shall prevent ZIVO from terminating the entire Agreement subject to the termination fee described herein. ZIVO shall pay the termination fee in whole within 90 days of the effective termination date with interest accruing on the unpaid principal balance at the applicable federal short term rate. 3.2 ZIVO Non-Performance. In the event ZIVO is unable to supply NutriQuest with the Products or ZIVO has failed to pay the termination fee in the 90-day payment period stated in Section 3.1 above, for a period of 30 days, NutriQuest shall have the option, to require ZIVO to provide NutriQuest, within 45 days of written request, with all the necessary technology, know-how, production and processing agreements, in order that NutriQuest can manufacture its own supply of the Product. In such event, NutriQuest shall not obtain, in any manner, any ownership interest, claim or right to ZIVO’s intellectual property associated, directly or indirectly with the manufacture of the Product. NutriQuest further agrees to return to ZIVO all such technology, know-how, production and processing agreements within 30 days after the termination of this Agreement. Once production resumes, ZIVO will be paid a reduced 8% allocation of the Gross Profit for the term of this Agreement. 3.3 Brand. The NutriQuest brand will apply to and be sold as such brand for any Product under this exclusive license Agreement. Subject to compliance with applicable laws and regulations, logos and packaging design for any Products will include Product names as determined by NutriQuest. All Products shall be packaged and labeled according to NutriQuest’s specifications. Marketing materials, including but not limited to, catalogs, advertising campaigns, brochures, mini-CD’ s/DVD’ s, literature, PowerPoint presentations, web site content and trade-show banners, to assist NutriQuest in marketing, promoting, selling and distributing any Products will be the sole responsibility of NutriQuest. 1 3.4 Intellectual Property. In conjunction with Section 8.5, nothing provided herein shall constitute a transfer of ownership of one party’s intellectual property (“IP”, further defined below) to the other party. Any IP developed through the performance of the Agreement, irrespective of possession of such IP, shall be owned solely by the developing party. In the event that IP is jointly developed, it shall be jointly and equally owned by the parties. 3.5 Intellectual Property Defined. Hereinafter “IP”, shall, without limitation, mean all rights, worldwide, both statutory and non-statutory , which are available to protect discoveries, ideas, concepts, designs, inventions (e.g., compositions of matter, machines, processes, formulae, methods of doing business), industrial designs, improvements, mask works, works of authorship (e.g., source code, object code, computer programs and associated documentation, drawings, flow charts, schematics and other works subject to copyright, design right or other like protection), trade secrets, and other intellectual property of any kind, against unauthorized manufacture, use, sale, offer for sale, leasing, copying, distribution , importation , preparation of derivative works, or disclosure by persons other than the owner or authorized user thereof, including, without limitation: U.S. and foreign patents, utility models, inventor certificates, registered designs, mask works, and applications for securing such rights and all rights therein (“Patent Rights”); copyrights, copyright registrations and applications for securing copyright registrations; all trademarks, service marks, logos, designs, or trade names, or other indicia of origin developed; and/or all other rights available to prevent the unlawful use or disclosure of trade secrets and other confidential information. 3.6 Joint and Equal Ownership. Subject to Section 3.4 with respect to each Party’s continuing ownership of their respective IP; all IP associated with any advancements, developments, improvements, and/or modifications to the Product shall be jointly and equally owned by the Parties. Such ownership shall be subject to the rights of the respective Parties as set forth herein. 3.7 Restrictions on IP. Notwithstanding the Parties’ joint and equal ownership of IP, neither Party will (nor shall they have the right to), either directly or through others, make, use, sell, license (or sublicense), continue development, improve upon or otherwise commercialize any jointly owned IP other than as to license rights expressly stated herein or in any separate commercial agreement specifically contemplated hereby or as otherwise expressly approved in writing by both of the Parties. 4. Compensation. “Gross Profit” means, for a Product and for a particular period of time, the gross monies or the monetary equivalent of all other consideration in any form actually received by NutriQuest for the sale of such Product, whether or not invoiced, billed by or due to NutriQuest; less (i) credits or refunds, not exceeding the original billing or invoice amount; (ii) delivery expenses, (iii) discounts for quantity or “ bundled” purchases, cash payments, prompt payments, wholesalers, and distributors; (iv) taxes, including sales, use, excise, import, export, and other taxes or duties (excluding taxes on income), separately billed or invoiced, and borne by NutriQuest, imposed by a government agency with the authority to do so on such sale and (v) ZIVO full absorption inventory cost, calculated in accordance with generally accepted accounting principles (“GAAP Inventory Cost”) determined on a calendar quarter basis by ZIVO and reported to NutriQuest. NutriQuest shall earn a minimum GP of no less than $1,250 per metric ton. 4.1 Gross Profit Split NutriQuest shall market, distribute and collect revenues from the Biomass/Products’ sales. The Gross Profit shall be equally shared by the parties (50/50 basis) effectively creating a royalty paid by NutriQuest to ZIVO. Such royalties shall be paid by NutriQuest to ZIVO on a monthly basis and by the 10th day of the month following the month upon which the sales were generated. Within 30 days of the end of each calendar quarter, the amount of Gross Profit and applicable profit sharing percentages shall be recomputed based on actual results with any settlement of total adjusted monthly gross profit to be paid by the overcompensated Party to the undercompensated party within 10 days of the parties’ agreement on such recomputation. 4.2 Excluded Product. Should an Excluded Product developed by ZIVO, or derived from intellectual property licensed by ZIVO to others (“Competitive Product’), enter the animal nutrition market, in the event that ZIVO elects not to work with NutriQuest under the terms of this Agreement with such Competitive Product, NutriQuest shall have the right to exercise one of the following options, in its sole discretion within 60 days after ZIVO’s notification to NutriQuest of the Excluded Product entering the animal nutrition market. If NutriQuest first exercises the Market Adjustment Option, it may at any later date exercise the Put Option. Only one option may be exercised at any one time and once a Put Option is exercised the other options are terminated: a. Market Adjustment Option: ZIVO shall pay NutriQuest a market adjustment that is equal to 15% of the Gross Profit earned by ZIVO on the Competitive Product once that product enters the animal nutrition market. 2 b. Put Option: ZIVO shall grant NutriQuest an option (the “Put Option”) that, if exercised, terminates this Agreement and requires ZIVO to pay NutriQuest a termination fee equal to 3 times NutriQuest’s 50% portion of the highest annualized Gross Profit achieved by NutriQuest in any preceding 12 consecutive month period since inception of sales pursuant to this Agreement. ZIVO shall execute a nonsecured promissory note to pay NutriQuest said termination fee in six equal consecutive monthly installments commencing 30 days after the effective termination date of this Agreement with interest accruing on the unpaid principal balance at the applicable federal short term rate in effect as of the date of the promissory note. If any of the six installments equals less than $100,000 the payment terms shall be calculated as (amount of termination payment) divided by ($100,000) and rounded down to nearest whole number to equal the number of monthly payments. As an example, if the termination fee is $350,000 the monthly payments shall equal $350,000 /$100,000 equals 3.5 rounded down to 3 consecutive equal monthly payments of $116,666.67 each. If the Put Option is exercised and consummated, NutriQuest can, in its sole discretion, continue to market the Products on a non-exclusive basis under mutually agreeable terms determined by the parties if ZIVO continues to furnish the Products or is in the position to continue to furnish the Products. 4.3 Records and Audit. Each Party agrees to keep all usual and proper records and books of account and all usual and proper entries relating to the manufacture, storage, sale and distribution of the Products and to permit the other to review such records to the extent necessary to determine compliance with such Party’s obligations under this Agreement. Each Party shall have the annual right to audit, itself or via its appointed agent, the other Party’s accounting records to confirm the accuracy of any payments due under this Agreement. Each Party shall provide access to the other Party or its appointed agent for this purpose within thirty (30) calendar days of a written request. Any discrepancy found under the terms of this Agreement shall be corrected by a payment within fifteen (15) calendar days, including interest based on the prevailing prime rate of interest, calculated from the time that such underpayment occurred through the date that the discrepancy is paid for. If a discrepancy of five percent (5%) or more of any payments are found, the fees of the appointed agent shall be paid by the Party where the discrepancy occurred. Each Party agrees to keep as confidential all of the other Party’ s records disclosed in such audit. 4.4 No Sharing of Losses. As the Parties are not partners, joint venturers or anything similar thereto, each Party shall be solely responsible for its own losses, if any, incurred under this Agreement. 4.5 Warrants. At the signing of this Agreement NutriQuest will be issued warrants equal to 0.50% of the outstanding shares of ZIVO. Such warrants shall have a strike price 10% over current share price and a five-year exercise period. Upon completion of the exercise period the warrants shall expire. All payments upon exercise of the warrants shall be in a lump sum and immediately due with the notice of the warrant exercise. 5. Territory. NutriQuest’s territory under this Agreement shall be the entire world (“Territory”) provided the mutually agreeable performance and sales minimums (Exhibit “l”) are achieved by NutriQuest and both parties can successfully meet regulatory requirements outside the US. 6. ZIVO Responsibilities. ZIVO agrees and is responsible for: a. growing and processing of the Products and supplying and selling the Product to NutriQuest at ZIVO’s cost (whether produced by ZIVO directly or through others). ZIVO shall have the right to out-source or assign this obligation to a third party, provided that ZIVO will cause the third party to comply with the same quality and manufacturing standards to produce the Product and use the same technical specifications for the third party as if ZIVO had manufactured the Product itself. b. pursuing regulatory approval on the Products to obtain US GRAS status to NutriQuest’s satisfaction and EU EFSA approval if both NutriQuest and ZIVO agree that such regulatory approvals are warranted. c. completing a total of three discovery research trials, which may be swine or poultry based, with assistance from NutriQuest in designing the trials and sourcing research facility space. d. reasonably providing technical knowledge to support and enhance NutriQuest efforts under this Agreement. e. applying for and prosecuting patent applications including paying all fees associated therewith. f. pursuing enforcement activities against any third party who infringes upon patent rights on a Product. 3 7. NutriQuest Responsibilities. NutriQuest agrees and is responsible for: a. consulting with ZIVO during their regulatory phase to advise on safety and efficacy trials and review results. b. consulting with ZIVO on processing of the Products into usable forms for applicable markets. poultry based in NutriQuest’s facilities, at its cost. d. completing all additional research necessary to establish value proposition, enhance marketability and application of Products in the Territory. e. providing all necessary technical service, sales and support to the market for the Products. f. directing all necessary sales, marketing, branding, communication, advertising and promotion efforts of the Products in the Territory. g. invoicing, credit and collections for Product sales in the Territory. h. obtaining all necessary country registrations for the Products in each geography NutriQuest deems worthwhile other than US GRAS and EU EFSA approval, the latter shall be the responsibility of ZIVO. i. informing ZIVO of all known or suspected infringements, unauthorized use or other interference with ZIVO’s IP. 8. Confidentiality 8.1 Treatment. The Receiving Party will treat the Confidential Information of the other party as strictly confidential and proprietary, and will safeguard its confidential and proprietary nature with at least the same degree of care as it holds its own confidential or proprietary information. Neither party will not reverse engineer or attempt to derive the composition or underlying information, structure or ideas of the Confidential Information. The receiving party may use the Confidential Information only in connection with fulfilling its obligations under this Agreement and for no other purpose whatsoever. The receiving party will not use the Confidential Information for its personal benefit of itself or for the benefit of any third party. 8.2 Forced Disclosure. If the receiving party is requested or required to disclose the Confidential Information or the substance of this Agreement in connection with a legal or administrative proceeding or otherwise to comply with a requirement under applicable law, the receiving party will give the disclosing party prompt notice of such request so that the disclosing party may seek an appropriate protective order or other remedy, or waive compliance with the relevant provisions of this Agreement. If the disclosing party seeks a protective order or other remedy, the receiving party, at disclosing party’s expense, shall promptly cooperate with and reasonably assist the disclosing party in such efforts. 8.3. Internal Disclosure. Each party acknowledges and agrees that it will only disclose the Confidential Information of the other party to its employees, consultants, associates, lab technicians and any and all contractors or subcontractors (collectively “Agents”) who need such Confidential Information to perform the party’s obligations under this Agreement and that these Agents shall be under the same obligation with respect to the Confidential Information as the receiving party. 8.4 Announcements. Neither Party shall issue any public statements, press releases, general advertisements or promotional materials using the name of the other Party without the written consent of the other Party. In no event will the terms and conditions of this Agreement be disclosed except to the extent required by applicable law. 8.5 No Transfer. Neither this Agreement, nor either party’s performance under it, will be assigned, transferred or conveyed in any manner to a third party, or create in any third party, any proprietary right, title, interest or claim in or to any of the disclosing party’s Confidential Information. 9. Miscellaneous. 9.1 Choice of Law; Dispute Resolution. This Agreement shall be governed by and construed in accordance with the laws of the State of Michigan. 4 9.2 Meeting of Chief Executive Officers. The Parties shall attempt to settle amicably any dispute or difference of any kind whatsoever, arising out of or in connection with the validity or invalidity, construction, execution, meaning, operation or effect or breach of this Agreement. If the Parties do not promptly do so, such dispute or difference shall be referred to the Parties’ respective principal or chief executive officer(s) (a “CEO”, or designees), who shall meet together with a view to resolving the same within a period of not more than fifteen (15) days from the date of the submission. Referral of a dispute to the Parties’ respective CEOs (or designees) shall be a condition precedent of instituting the mediation process. 9.2.1 Mediation. If the Parties’ respective CEOs are unable to resolve such dispute or difference within such fifteen (15) day period, the Parties agree to submit the dispute to a mutually agreeable third party who will assist in mediating the dispute to a satisfactory resolution and to conclude such private mediation within thirty (30) days of the filing by a Party of a request for such mediation. The mediation process may be invoked by any Party on written request and shall not be construed to constitute an admission against interest of the Party requesting mediation. Any mediation shall be confidential and non-binding on the Parties and no statements made or information exchanged during mediation will be admissible in any future legal or arbitration proceedings without the written consent of the Parties. If the dispute involves NutriQuest’s obligations under the Agreement, mediation shall take place in Mason City, Iowa; if the dispute involves ZIVO’s obligations under the Agreement mediation shall take place in Keego Harbor, Michigan. The Parties may mutually agree to conduct mediation at another location. Each Party will pay its own costs, plus an equal share of the costs of the mediator and the mediation facilities. 9.2.2 Arbitration. If a dispute between the Parties to this Agreement cannot be resolved by mediation within thirty (30) days as agreed to above, then the Parties shall submit any remaining dispute or difference of any kind between or among the Parties, arising out of in connection with this Agreement during its performance or after termination shall be referred to arbitration in accordance with the Commercial Rules of the American Arbitration Association. Any decision rendered shall be final and binding on the Parties. The arbitration shall be arbitration. If the dispute is initiated by ZIVO, arbitration shall take place in Mason City, Iowa; if initiated by NutriQuest, arbitration shall take place in Keego Harbor, Michigan; or at such other location as the Parties may agree. Costs of arbitration, including attorneys’ fees, shall be awarded by the arbitrators, as they deem equitable. Any award rendered by the arbitrators shall be final, and judgment may be entered thereon in any court having jurisdiction of the Parties, provided, however, that nothing herein shall be construed to confer upon such court authority or jurisdiction to inquire into or review the award on its merits. Except by written consent of the Parties to the arbitration, no one shall be included in the arbitration by consolidation, joinder or otherwise unless they are a Party to this Agreement, unless such third-party consents in writing. This Agreement is subject to the Federal Arbitration Act, 9 U.S.C. § 1-16. 9.2.3 Litigation. After signing this Agreement, each Party understands that it will not be able to bring a lawsuit concerning any dispute that may arise that is covered by this arbitration provision (other than to enforce the arbitration decision). Notwithstanding the foregoing, in the event a Party asserts that it is suffering from an irreparable harm during such dispute resolution process, such party may, in addition to pursuing its other remedies, obtain such equitable and injunctive relief (including, but not limited to, preliminary and permanent injunctions) from any court of competent jurisdiction, as may be necessary to enjoin any violation causing the irreparable harm and no bond or other security shall be required to obtain such relief. 9.3 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes any prior representations or statements, whether written or oral; no representation, warranty, affirmation of fact, promise, or other statement not specifically in this Agreement set forth will not be binding on any of the parties. 9.4 Anti-Disparagement. The Parties agree that in promoting their services neither Party shall disparage the other Party’s services and/or Products. 9.5 Freedom to Operate. Nothing herein shall limit NutriQuest’s right to distribute, including without limitation all technologies or products which NutriQuest has or shall acquire, license, or otherwise obtain, provided that such products and technologies do not violate the terms of this Agreement. 9.6 Insurance. During the Term, at ZIVO’s sole cost and expense, ZIVO shall procure and maintain commercial general liability insurance with an insurance company of national reputation naming NutriQuest as an additional insured. The insurance policy or policies will include: (i) product liability coverage; (ii) complete operations coverage; and (iii) contractual liability coverage with limits of liability for each type of coverage of not less than two million five hundred thousand dollars ($2,500,000) per occurrence or four million dollars ($4,000,000) in the aggregate. Within ten (10) business days of the Effective Date, ZIVO shall provide to NQ evidence of insurance policy(ies) meeting the requirements of this Section 9.5. 5 9.7 Waiver. This Agreement may not be modified, amended, changed, or altered in any respect unless done so in a writing signed by all of the parties and is binding on, and will inure to the benefit of, the parties and their respective successors, assigns, heirs, and personal representatives. 9.8 Assignment. The rights and obligations of the parties hereunder being of a specific and exclusive nature, the rights and obligations hereunder will not be assignable or transferable by either party without the prior written consent of the other party hereto. 9.9 Section Headings. All Section headings in this Agreement have been inserted for convenience only and are not to be construed as part of the Agreement itself. 9.10 Invalid Provision. If any term, covenant, condition or provision of this Agreement is illegal or the application thereof to any person or in any circumstance will, to any extent, be invalid or unenforceable, the remainder of this Agreement, will not be affected thereby, and each term, covenant, condition and provision of this Agreement will be valid and enforceable to the fullest extent provided by law. 9.11 Independent Entities. In the performance of the services to be rendered pursuant to this Agreement, it is mutually understood and agreed that the parties are at all times acting and performing as an independent business entities and not as a joint venturers, partners or employees. The parties acknowledge that each party has independent discretion to make all business judgments relating to the services rendered hereunder, and neither party shall control nor exercise discretion over the manner in which the other party provides services hereunder; provided that each party carries on its professional activities in accordance with currently accepted methods and standards. Neither party shall not have the right or authority to assume or create any obligations, express or implied, on behalf of the other party, or to bind the other party in any way. IN WITNESS WHEREOF, the parti.es by their duly authorized representatives have executed this Agreement as of the day and year set forth above. Witnesses “ZIVO” ZIVO Bioscience, Inc., a Nevada corporation By: /s/ Andrew A. Dahl Andrew A. Dahl Its: CEO “NutriQuest” NutriQuest LLC, an Iowa limited liability company By: /s/ David Weiss David Weiss Its: President 6
Exhibit 31.1 CERTIFICATION OF PRINCIPAL EXECUTIVE OFFICER PURSUANT TO SECTION SARBANES-OXLEY ACT OF 2002 I, Paul Burgess, certify that: 1.
Title: I got arrested for carrying a knife because I had a knife and fork with my lunch Question:2 days ago I had a meal prep so I used a knife and fork to eat it in my car. Fast forward til yesterday. Get pulled over, police see knife and fork, take knife, leave fork, and arrest me for eating lunch the day before. Apparently you can't carry knifes in public places without good reason. Is my car a public place? Is using a standard kitchen knife not ethical or lawful? Answer #1: Look at the LegalaAdviceUK thread. He _repeatedly_ dodges questions about the knife with almost politician-like expertise. Show the knife or nobody can advise you.Answer #2: When you say a "standard kitchen knife", what are you referring to? A normal table knife, or a sharp cooking knife?Answer #3: Well the comments on here are a shitshow. For reference, in another thread OP says his knife was very similar to https://www.russums-shop.co.uk/i/q/SY401/cutlery-economy-s-s-table-knife-(per-dozen) OP you can not be helped if you are avoiding the questions of people trying to help you. It's very suspicious, this whole post is suspicious honestly.Answer #4: /r/legaladviceukAnswer #5: What’s the rest of the story?Answer #6: What did the knife look like?
Severn Bancorp, Inc. EXHIBIT 99.1 FOR IMMEDIATE RELEASE Contact: Thomas G. Bevivino Chief Financial Officer & Executive Vice President tbevivino@severnbank.com Severn Bancorp Returns to Profitability in Second Quarter ANNAPOLIS, MD (July 16, 2010) — Severn Bancorp, Inc., (Nasdaq SVBI) parent company of Severn Savings Bank, FSB (“Severn”), today announced results for the quarter and six months ended June 30, 2010.Net income for the second quarter was $593,000 (unaudited), or $.02 per share, compared to net loss of $6.9 million (unaudited), or ($.73) per share for the second quarter of 2009.Net income was $65,000, or ($.08) per share for the six months ended June 30, 2010, compared to net loss of $8.2 million, or ($.90) per share for the six months ended June 30, 2009.At June 30, 2010, Severn’s regulatory capital ratios continued to exceed the levels required to be considered “well capitalized” under applicable federal banking regulations, including its core (leverage) ratio of approximately 11.5% compared to the regulatory requirement of 5% for “well capitalized” status. “We are gratified by these results and are pleased that our hard work is resulting in a turn around in the direction of our earnings,” said Alan J. Hyatt, president and chief executive officer.“However, we remain uncertain about the country’s economy and how long conditions, including unemployment, will continue to negatively impact our local economy.” Mr. Hyatt continued “While non-performing assets overall have decreased, they remain a challenge, and we continue to work with borrowers to return these assets to performing status.We also remain focused on providing full service banking to our customers with products and services that will increase shareholder value.” About Severn Founded in 1946, Severn is a full-service community bank offering a wide array of personal and commercial banking products as well as residential and commercial mortgage lending.It has assets of approximately $1 billion and four branches located in Annapolis, Edgewater and Glen Burnie, Maryland.The bank specializes in exceptional customer service and holds itself and its employees to a high standard of community contribution. Severn is on the Web at www.severnbank.com. Forward Looking Statements In addition to the historical information contained herein, this press release contains forward-looking statements that involve risks and uncertainties that may be affected by various factors that may cause actual results to differ materially from those in the forward-looking statements.The forward-looking statements contained herein include, but are not limited to, those with respect to management’s determination of the amount of loan loss reserve and statements about the economy.The words “anticipate,” “believe,” “estimate,” “expect,” “intend,” “may,” “plan,” “will,” “would,” “could,” “should,” “guidance,” “potential,” “continue,” “project,” “forecast,” “confident,” and similar expressions are typically used to identify forward-looking statements.The Company’s operations and actual results could differ significantly from those discussed in the forward-looking statements.Some of the factors that could cause or contribute to such differences include, but are not limited to, changes in the economy and interest rates both in the nation and Company’s general market area, federal and state regulation, competition and other factors detailed from time to time in the Company’s filings with the Securities and Exchange Commission (the “SEC”), including “Item 1A. Risk Factors” contained in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2009. ### Severn Bancorp, Inc. Selected Financial Data (dollars in thousands, except per share data) (Unaudited) For the Three Months Ended June 30, March 31, December 31, September 30, June 30, Summary Operating Results: Interest income Interest expense Net interest income Provision for loan losses Net interest income (loss) after provision for loan losses Non-interest income Non-interest expense Loss before income tax benefit Income tax benefit Net loss Per Share Data: Basic earnings (loss) per share Diluted earnings (loss) per share Common stock dividends per share $- $- $- Average basic shares outstanding Average diluted shares outstanding Performance Ratios: Return on average assets 0.06% -0.05% -0.27% -0.44% -0.69% Return on average equity 0.60% -0.50% -2.46% -3.90% -5.78% Net interest margin 3.63% 3.49% 3.17% 3.06% 2.60% Efficiency ratio* 56.97% 59.20% 61.36% 60.90% 69.41% * The efficiency ratio is general and administrative expenses as a percentage of net interest income plus non-interest income As of June 30, March 31, December 31, September 30, June 30, Balance Sheet Data: Total assets Total loans receivable Allowance for loan losses Net loans Deposits Stockholders' equity Bank's Tier 1 core capital to total assets 11.5% 11.9% 11.8% 12.2% 12.4% Book value per share Asset Quality Data: Non-accrual loans Foreclosed real estate Total non-performing assets Total non-accrual loans to net loans 5.9% 6.2% 7.7% 8.2% 8.9% Allowance for loan losses Allowance for loan losses to total loans 4.0% 4.1% 4.1% 3.9% 3.2% Allowance for loan losses to total non-performing loans 71.1% 68.4% 55.3% 49.4% 37.3% Total non-accrual loans to total assets 4.8% 5.2% 6.5% 6.9% 7.7% Total non-performing assets to total assets 6.4% 7.6% 8.7% 8.7% 8.5%
Exhibit 10.50 LINEAR TECHNOLOGY CORPORATION ROBERT H. SWANSON, JR. THIRD AMENDED AND RESTATED EMPLOYMENT AGREEMENT This Robert H. Swanson, Jr. Third Amended and Restated Employment Agreement (the “Agreement”) is entered into as of December 18, 2012 (the “Effective Date”) by and between Linear Technology Corporation (the “Company”) and Robert H. Swanson, Jr. (“Executive”). WHEREAS, Executive and the Company executed the Robert H. Swanson, Jr. Employment Agreement in January 2002 (the “Initial Employment Agreement”); WHEREAS, Executive has since resigned from his employment as Chief Executive Officer of the Company, but at the request of the Board of Directors of the Company (the “Board”) pursuant to Section 3(f) of the Initial Employment Agreement, has agreed to remain Executive Chairman of the Board; WHEREAS, Executive and the Company executed the Robert H. Swanson, Jr. Amended and Restated Employment Agreement on October 18, 2005 (the “Amended Employment Agreement”); WHEREAS, Executive and the Company executed the Robert H. Swanson, Jr. Second Amended and Restated Employment Agreement on November 5, 2008 (the “Second Amended Employment Agreement”); and WHEREAS, Executive and the Company desire to revise the Second Amended Employment Agreement to comply with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) (as it has been and may be amended from time to time) and the final regulations and any guidance promulgated thereunder (together, “Section 409A”). NOW, THEREFORE, in consideration of their mutual promises and intending to be legally bound, the parties agree as follows: 1.Duties and Scope of Employment. (a)Positions; Agreement Commencement Date; Duties. Following the Effective Date, Executive shall continue to serve as Executive Chairman of the Board, reporting to the Board. The period of Executive's employment hereunder is referred to herein as the “Employment Term.” During the Employment Term, Executive shall render such business and professional services in the performance of his duties, consistent with Executive's position within the Company, as shall reasonably be assigned to him by the Board. (b)Obligations. During the Employment Term, Executive shall devote his business efforts and time to the Company two to three days per week. Executive agrees, during the Employment Term, not to actively engage in any other employment, occupation or consulting activity for any direct or indirect remuneration without the approval of the Board that would result in a conflict of interest with the Company's business. 2.At-Will Employment. Executive and the Company understand and acknowledge that Executive's employment with the Company constitutes “at-will” employment. Subject to the Company's obligation to provide severance benefits as specified herein, Executive and the Company acknowledge that this employment relationship may be terminated at any time, upon written notice to the other party, with or without good cause or for any or no cause, at the option either of the Company or Executive. 3.Compensation. (a)Base Salary. While employed by the Company, the Company shall pay the Executive as compensation for his services $468,000 (the “Base Salary”), prorated for the number of full days of service he performs as Executive Chairman of the Board. Such salary shall be paid periodically in accordance with normal Company payroll practices and subject to the usual, required withholding. Executive's Base Salary shall be reviewed annually by the Compensation Committee of the Board (the “Committee”) for possible adjustments in light of Executive's performance and competitive data. (b)Bonuses. Executive shall be eligible to earn a bonus under the Company's 1996 Senior Executive Bonus Plan as specified by the Committee and will also be eligible to participate in the Key Employee Incentive Bonus Plan or any successor bonus plans to such plans (collectively, the “Bonus Plans”). (i)Executive's target bonus (the “Target Bonus”) for any six-month period will be his target bonus for the previous six-month period increased or decreased by the same percentage the total bonus pool for the Bonus Plans for the six-month period in question increased or decreased compared to the previous six-month period. By way of example only, if Executive's Target Bonus for the first six-month period of a particular year is $1,000,000 and the total bonus pool for the Bonus Plans for the second six-month period of such year increases by 10% over the total bonus pool for the Bonus Plans for the first six-month period of such year, then Executive's Target Bonus for second six-month period would be $1,100,000. (ii)Executive's actual bonus for any particular period will equal the actual bonus to which he would have otherwise been entitled for such period based upon the Target Bonus prorated for the number of full days of service he performs for the Company as Executive Chairman of the Board during such period, or alternatively in such lesser amount as the Committee deems appropriate, but in no event more than 50% of the Target Bonus for any relevant period. By way of example only, if the actual bonus Executive would have been entitled to for a period if he had worked full time was the Target Bonus of $1,000,000, then (A) if the number of full days of service Executive performed during the period was 30% of full time, his actual bonus would be $300,000, and (B) if the number of full days of service Executive performed during the period was 60% of full time, then his actual bonus would be $500,000. (iii)Any such bonus will be paid promptly following the determination of whether and to what extent that it has been earned, but in no event after the later of (i) March 15 of the calendar year following the calendar year in which such determination is made and no longer subject to a substantial risk of forfeiture, or (ii) two and one-half months following the end of the fiscal year of the Company in which such determination is made and no longer subject to a substantial risk of forfeiture. (c)Benefits. During the Employment Term, Executive shall be eligible to participate in the employee benefit plans maintained by the Company that are applicable to other senior management to the full extent provided for under those plans, including health and other welfare plan participation, use of the Company airplane and pilot(s) as set forth in Section 3(d) hereof, office space and secretary, but excluding participation in any Company employee stock purchase plan intended to qualify under Section 423 of the Code, and any Company 401(k) plan and any benefits and perquisites where continuing Executive's participation would be either (i) contrary to statute or regulation, or (ii) highly impractical. (d)Use of Company Airplane. During the Employment Term, Executive shall be permitted to use, for personal purposes, the Company airplane and pilot(s), for up to 35% of the available flight time in any year; provided, however, that such use shall be subject to the Company's reasonable policies and airplane usage requirements. Executive shall be fully grossed-up for any imputed taxable income recognized by virtue of such use so that the net effect to Executive is the same as if there was no imputed income. Executive will receive such payments no later than the end of the calendar year following the calendar year in which Executive remits the applicable taxes to the relevant tax authorities. (e)Severance Prior to a Change of Control. (i)Voluntary Termination for Good Reason; Involuntary Termination Other Than for Cause. If, prior to a Change of Control (as defined herein), Executive's tenure as Executive Chairman of the Board, terminates due to (i) a voluntary termination for “Good Reason” (as defined herein) where the grounds for the Good Reason are not cured by the Company within 30 days following receipt of written notice specifying the grounds from Executive, or (ii) an involuntary termination by the Company other than for “Cause” (as defined herein), then, subject to Section 5, and subject to Executive executing and not revoking a standard form of mutual release of claims with the Company, which the Company shall provide to Executive no later than five (5) business days after the termination date (the “Release”), and provided that the Release becomes effective and irrevocable no later than sixty (60) days following the termination date (such deadline, the “Release Deadline”), and subject to Executive not breaching the terms of Section 12 hereof: (1)all of Executive's Company stock options (together with other rights to purchase or receive Company common stock) and restricted stock (including restricted stock units and similar awards) shall immediately accelerate vesting as to 100% of the then unvested amount of such award; (2)Executive shall receive continued payments of severance pay for 12 months following the date of such termination at a rate equal to: a)Executive's annual Base Salary at the rate in effect on the date of such termination, plus b)two times the average of his Target Bonus (without respect to any proration for actual days of service performed or the 50% limitation, each as referred in Section 3(b)(ii) above) for the four six-month bonus periods prior to the date of such termination, which amount will be payable in equal installments over such 12-month period (for purposes of clarity, it is the intention of this paragraph that Executive receive under this paragraph an amount equal to a full year of (i.e., twice) the full amount of his average six-month Target Bonuses as if he were performing his duties as Executive Chairman full time at the time of termination; by way of example only, if Executive's Target Bonuses (without regard to his actual bonuses paid) were $1,000,000, $1,200,000, $800,000 and $1,000,000, respectively, in the four six-month periods prior to the date of termination, then the average six-month Target Bonus would be $1,000,000, and the annual bonus payable under this paragraph would be $2,000,000); in each case, as if Executive had been performing services as Executive Chairman of the Board on a full-time basis up to the date of termination, with no proration or limitation on the amount of his actual compensation (e.g., Executive's bonus would not be prorated or limited to 50% of his Target Bonus for any particular period based upon time actually worked), less applicable withholding and payable in accordance with the Company's standard payroll practices (the “Severance Payment”); (3)the Company shall reimburse Executive for premiums paid for continued health and dental benefits for Executive and his covered dependents for the lesser of: a)18 months from the date of Executive's termination of employment, payable when such premiums are due (provided Executive validly elects to continue coverage under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), or b)the date upon which Executive and his covered dependents are covered by similar plans of Executive's new employer (the “COBRA Coverage”). For purposes of this Agreement, “Cause” shall mean (i) an act of personal dishonesty taken by Executive in connection with his responsibilities hereunder and intended to result in substantial personal enrichment of Executive; (ii) Executive being convicted of, or plea of nolo contendere to, a felony; (iii) a willful act by Executive which constitutes gross misconduct and which is injurious to the Company; and (iv) following delivery to Executive of a written demand for performance from the Company which describes the basis for the Company's reasonable belief that Executive has not substantially performed his duties, continued violations by Executive of Executive's obligations to the Company which are demonstrably willful and deliberate on Executive's part. For purposes of this Agreement, “Good Reason” means, without Executive's express consent, (i) a material reduction of Executive's duties, title, authority or responsibilities, relative to Executive's duties, title, authority or responsibilities as in effect immediately prior to such reduction, or the assignment to Executive of such reduced duties, title, authority or responsibilities; (ii) a material reduction, of the facilities and perquisites (including office space and location) available to Executive immediately prior to such reduction, other than a reduction generally applicable to all senior management of the Company; (iii) a reduction by the Company in the Base Salary of Executive as in effect immediately prior to such reduction; (iv) a material reduction by the Company in the aggregate level of employee benefits, including Target Bonuses, to which Executive was entitled immediately prior to such reduction with the result that Executive's aggregate benefits package is materially reduced (other than a reduction that generally applies to Company employees); (v) the relocation of Executive to a facility or a location more than 35 miles from Executive's then present location); or (vi) any act or set of facts or circumstances which would, under California case law or statute constitute a constructive termination of Executive; provided, however, that Executive agrees that Executive's transition from Chief Executive Officer and Chairman of the Board to Chairman pursuant to Section 3(f) of the Initial Employment Agreement and the related reductions in pay, responsibilities and the like did not constitute Good Reason. Executive shall not be required to mitigate the value of any severance benefits contemplated by this Agreement, nor shall any such benefits be reduced by any earnings or benefits that the Executive may receive from any other source; provided, however, that if Executive receives severance benefits hereunder, he expressly waives the right to receive severance benefits under any other severance plan or policy of the Company. (ii)Voluntary Termination Other than for Good Reason; Involuntary Termination for Cause. Except as provided otherwise in Sections 3(g) hereof, in the event Executive terminates his employment voluntarily other than for Good Reason or is involuntarily terminated by the Company for Cause, then all vesting of Executive's stock options (together with other rights to purchase or receive Company common stock) and restricted stock (including restricted stock units and similar awards) shall terminate immediately and all payments of compensation by the Company to Executive hereunder shall immediately terminate (except as to amounts already earned). (iii)Timing of Payments. Any severance payments under this Agreement subject to the signing of a Release shall be paid on (or, in the case of any such payments made in installments, shall not commence until) the Release Deadline, or, if later, such time as is required by Section 5 below, except that the acceleration of vesting of options or restricted stock shall become effective on the date the Release becomes effective and irrevocable. Except as required by Section 5 below, any installment payments that would have been made to Executive during the sixty (60) day period immediately following Executive's separation from service but for the preceding sentence shall be paid to Executive on the Release Deadline and the remaining payments shall be made as provided in the Agreement. (f)Change of Control Benefits. In the event of a “Change of Control” (as defined herein), Executive shall receive the benefits specified in Section 3(e)(i) above (including 100% vesting acceleration); provided that the Severance Payment shall be payable in a lump-sum within five days following the Change of Control and the COBRA Coverage shall be extended to Executive upon any subsequent termination of his employment, whether or not for Cause or Good Reason, subject to Section 5. In the event Executive's tenure as Executive Chairman of the Board terminates following a Change of Control, for any or no reason, including pursuant to Section 3(g) hereof, Executive shall not be entitled to any additional compensation (excepts as to amounts already earned and payments and benefits due pursuant to Section 3(e)). For purposes of this Agreement, “Change of Control” shall mean the occurrence of any of the following events: (i)Change in Ownership of the Company. A change in the ownership of the Company, which is deemed to occur on the date that any one person, or more than one person acting as a group (“Person”), acquires ownership of the stock of the Company that, together with the stock held by such Person, constitutes more than 50% of the total voting power of the stock of the Company; or (ii)Change in Effective Control of the Company. A change in the effective control of the Company, which is deemed to occur on the date that a majority of members of the Board is replaced during any 12-month period by directors whose appointment or election was not endorsed by a majority of the members of the Board prior to the date of the appointment or election. For purposes of this clause (ii), if any Person is considered to be in effective control of the Company, the acquisition of additional control of the Company by the same Person will not be considered a Change of Control; or (iii)Change in Ownership of a Substantial Portion of the Company's Assets. A change in the ownership of a substantial portion of the Company's assets, which is deemed to occur on the date that any Person acquires (either is one transaction or in multiple transactions over the 12-month period ending on the date of the most recent acquisition by such person or persons) assets from the Company that have a total gross fair market value equal to or more than 50% of the total gross fair market value of all of the assets of the Company immediately prior to such acquisition or acquisitions. For purposes of this subsection (iii), gross fair market value means the value of the assets of the Company, or the value of the assets being disposed of, determined without regard to any liabilities associated with such assets. For purposes of the above sections, persons will be considered to be acting as a group if they are owners of a corporation that enters into a merger, consolidation, purchase or acquisition of stock, or similar business transaction with the Company. Notwithstanding the foregoing provisions of this definition, a transaction will not be deemed a Change of Control unless the transaction qualifies as a “change in control event” within the meaning of Section 409A. (g)Voluntary Termination when Executive is 65 or Older. In the event that on or after his 65th birthday, Executive (i) voluntarily terminates as Executive Chairman of the Board, and, (ii) if he is then employed by the Company, voluntarily terminates such employment, then Executive shall receive the same benefits as if such voluntary termination was a voluntary termination for Good Reason, which will entitle him to severance benefits under Section 3(e)(i), and, if applicable, paid and provided as set forth in Section 3(f). 4.Death or Total Disability of Executive. (a)Death. Upon Executive's death while Executive is an employee or consultant of the Company, then (i) employment hereunder shall automatically terminate; (ii) all of Executive's Company stock options (together with other rights to as to 50% of the then unvested amount of such award, and all subsequent vesting of Executive's stock options (together with other rights to purchase or receive similar awards) shall terminate immediately; and (iii) all payments of compensation by the Company to Executive hereunder shall immediately terminate (except as to amounts already earned). (b)Disability. Upon Executive's becoming permanently and totally disabled (as defined in accordance with Code Section 22(e)(3) or its successor provision) while Executive is an employee of the Company, then employment hereunder shall automatically terminate and all payments of compensation by the Company to Executive hereunder shall immediately terminate (except as to amounts already earned), and all vesting of Executive's stock options (together with other rights to purchase or receive Company common stock) and restricted stock (including restricted stock units and similar awards) shall terminate immediately. 5.Section 409A. Notwithstanding anything to the contrary in this Agreement, no Deferred Compensation Separation Benefits (as defined below) shall become payable under this Agreement until Executive has a “separation from service” within the meaning of Section 409A. Further and notwithstanding anything to the contrary in this Agreement and solely with respect to the timing of the payment of any severance payments or benefits, if Executive is a “specified employee” within the meaning of Section 409A at the time of Executive's termination, other than a termination due to Executive's death, then any severance payments payable to Executive pursuant to this Agreement, if any, and any other severance payments or separation benefits which may be considered deferred compensation under Section 409A (together, the “Deferred Compensation Separation Benefits”) otherwise due to Executive on or within the six-month period following Executive's termination shall accrue during such six-month period and shall become payable in a lump sum payment on the date six months and one-day following the date of Executive's termination of employment, unless Executive dies following the termination of his employment, in which case, the Deferred Compensation Separation Benefits shall be paid to Executive's estate as soon as practicable following his death. All subsequent Deferred Compensation Separation Benefits, if any, shall be payable in accordance with the payment schedule applicable to each payment or benefit. It is the intent of this Agreement to comply with the requirements of Section 409A so that none of the severance payments and benefits to be provided hereunder shall be subject to the additional tax imposed under Section 409A, and any ambiguities herein shall be interpreted to so comply. The Company and Executive agree to work together in good faith to consider amendments to this Agreement and to take such reasonable actions that are necessary, appropriate or desirable to avoid imposition of any additional tax or income recognition prior to actual payment to Executive under Section 409A. 6.Golden Parachute Excise Tax Full Gross-Up. (a)In the event that the benefits provided for in this Agreement or otherwise payable to Executive constitute “parachute payments” within the meaning of Section 280G of the Code and will be subject to the excise tax imposed by Section 4999 of the Code, then Executive shall receive (i) a payment from the Company sufficient to pay such excise tax, plus (ii) an additional payment from the Company sufficient to pay the excise tax and federal and state income and employment taxes arising from the payments made by the Company to Executive pursuant to this sentence. Executive shall receive such payments no later than the end of calendar year following the calendar year in which Executive remits the applicable taxes to the relevant tax authorities. (b)Unless the Company and the Executive otherwise agree in writing, the determination of Executive's excise tax liability and the amount required to be paid under this Section 6 shall be made in writing by the Company's independent auditors who are primarily used by the Company immediately prior to the Change of Control (the “Accountants”). For purposes of making the calculations required by this Section 6, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 6. 7.Assignment. This Agreement shall be binding upon and inure to the benefit of (a) the heirs, beneficiaries, executors and legal representatives of Executive upon Executive's death and (b) any successor of the Company. Any such successor of the Company shall be deemed substituted for the Company under the terms of this Agreement for all purposes. As used herein, “successor” shall include any person, firm, corporation or other business entity which at any time, whether by purchase, merger or otherwise, directly or indirectly acquires all or substantially all of the assets or business of the Company. None of the rights of Executive to receive any form of compensation payable pursuant to this Agreement shall be assignable or transferable except through a testamentary disposition or by the laws of descent and distribution upon the death of Executive. Any attempted assignment, transfer, conveyance or other disposition (other than as aforesaid) of any interest in the rights of Executive to receive any form of compensation hereunder shall be null and void. 8.Notices. All notices, requests, demands and other communications called for hereunder shall be in writing and shall be deemed given if (i) delivered personally or by facsimile, (ii) one-day after being sent by Federal Express or a similar commercial overnight service, or (iii) three days after being mailed by registered or certified mail, return receipt requested, prepaid and addressed to the parties or their successors in interest at the following addresses, or at such other addresses as the parties may designate by written notice in the manner aforesaid: If to the Company: Linear Technology Corporation 720 Sycamore Drive Milpitas, CA 95035 Attn: General Counsel If to Executive: Robert H. Swanson, Jr. at the last residential address known by the Company. 9.Severability. In the event that any provision hereof becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable or void, this Agreement shall continue in full force and effect without said provision. 10.Entire Agreement. This Agreement, the Confidential Information and Invention Assignment Agreement previously entered into by and between the Company and Executive and the indemnification agreement previously entered into by and between the Company and Executive represent the entire agreement and understanding between the Company and Executive concerning Executive's employment relationship with the Company, and supersede and replace any and all prior agreements and understandings concerning Executive's employment relationship with the Company. 11.Dispute Resolution. (a)The parties shall first meet to settle any dispute through good faith negotiation or non-binding mediation. If not settled by good faith negotiation or non-binding mediation between the parties within 30 days from the date one party requests in writing to meet the other party, then to the extent permitted by law, any dispute or controversy arising out of, relating to, or in connection with this Agreement, or the interpretation, validity, construction, performance, breach, or termination thereof shall be finally settled by binding arbitration to be held in Santa Clara County, California, in accordance with the National Rules for the Resolution of Employment Disputes then in effect of the American Arbitration Association (the “Rules”). The arbitrator may grant injunctions or other relief in such dispute or controversy. The decision of the arbitrator shall be confidential, final, conclusive and binding on the parties to the arbitration. Judgment may be entered under a protective order on the arbitrator's decision in any court having jurisdiction. The Company shall pay all costs of any mediation or arbitration; provided, however, that each party shall pay its own attorney and advisor fees. (b)The arbitrator shall apply California law to the merits of any dispute or claim, without reference to rules of conflict of law. The arbitration proceedings shall be governed by federal arbitration law and by the Rules, without reference to state arbitration law. Executive hereby expressly consents to the personal jurisdiction of the state and federal courts located in California for any action or proceeding arising from or relating to this Agreement and/or relating to any arbitration in which the parties are participants. (c)Executive understands that nothing in Section 11 modifies Executive's at-will status. Either the Company or Executive can terminate the employment relationship at any time, with or without cause. (d)EXECUTIVE HAS READ AND UNDERSTANDS SECTION 11, WHICH DISCUSSES ARBITRATION. EXECUTIVE UNDERSTANDS THAT BY SIGNING THIS AGREEMENT, EXECUTIVE AGREES, TO THE EXTENT PERMITTED BY LAW, TO SUBMIT ANY FUTURE CLAIMS ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT, OR THE INTERPRETATION, VALIDITY, CONSTRUCTION, PERFORMANCE, BREACH, OR TERMINATION THEREOF TO BINDING ARBITRATION, AND THAT THIS ARBITRATION CLAUSE CONSTITUTES A WAIVER OF EXECUTIVE'S RIGHT TO A JURY TRIAL AND RELATES TO THE RESOLUTION OF ALL DISPUTES RELATING TO ALL ASPECTS OF THE EMPLOYER/EMPLOYEE RELATIONSHIP. 12.Covenants Not to Compete and Not to Solicit. (a)Covenant Not to Compete. In consideration for the benefits Executive is to receive herein Executive agrees that, until the end of the 12-month period following the date of his termination of employment with the Company for any reason or no reason, Executive will not directly engage in (whether as an employee, consultant, proprietor, partner, director or otherwise), or have any ownership interest in, or participate in the financing, operation, management or control of, any person, firm, corporation or business that engages or participates anywhere in the world in providing goods and services similar to those provided by the Company upon the date of Executive's termination of employment. Ownership of less than 3% of the outstanding voting stock of a corporation or other entity will not constitute a violation of this provision. The Company agrees not to unreasonably withhold consent from Executive to engage in any activity that is not competitive with the Company. (b)Covenant Not to Solicit. In consideration for the benefits Executive is to receive herein Executive agrees that he will not, at any time during the 12-month period following his termination date, directly or indirectly solicit any individuals to leave the Company's employ for any reason or interfere in any other manner with the employment relationships at the time existing between the Company and its current or prospective employees. (c)Representations. The parties intend that the covenants contained in Section 12(a) and (b) shall be construed as a series of separate covenants, one for each county, city and state (or analogous entity) and country of the world. If, in any judicial proceeding, a court shall refuse to enforce any of the separate covenants, or any part thereof, then such unenforceable covenant, or such part thereof, shall be deemed eliminated from this Agreement for the purpose of those proceedings to the extent necessary to permit the remaining separate covenants, or portions thereof, to be enforced. (d)Reformation. In the event that the provisions of this Section 12 should ever be deemed to exceed the time or geographic limitations, or scope of this covenant, permitted by applicable law, then such provisions shall be reformed to the maximum time or geographic limitations, as the case may be, permitted by applicable laws. (e)Reasonableness of Covenants. Executive represents that he (i) is familiar with the covenants not to compete and solicit, and (ii) is fully aware of his obligations hereunder, including, without limitation, the reasonableness of the length of time, scope and geographic coverage of these covenants. 13.No Oral Modification, Cancellation or Discharge. This Agreement may only be amended, canceled or discharged in writing signed by Executive and the Company's then existing Chief Executive Officer, subject to prior approval of the Board. 14.Withholding. The Company shall be entitled to withhold, or cause to be withheld, from payment any amount of withholding taxes required by law with respect to payments made to Executive in connection with his employment hereunder. 15.Governing Law. This Agreement shall be governed by the laws of the State of California (with the exception of its conflict of laws provisions). 16.Acknowledgment. Executive acknowledges that he has had the opportunity to discuss this matter with and obtain advice from his private attorney, has had sufficient time to, and has carefully read and fully understands all the provisions of this Agreement, and is knowingly and voluntarily entering into this Agreement. IN WITNESS WHEREOF, the undersigned have executed this Agreement: LINEAR TECHNOLOGY CORPORATION /s/ Richard M. Moley Date: December 18, 2012 Richard M. Moley Chairman of the Compensation Committee EXECUTIVE /s/ Robert H. Swanson, Jr. Date: December 18, 2012 Robert H. Swanson, Jr.
EX-99.CERT CERTIFICATIONS I, Nicole M. Tremblay, certify that: 1.I have reviewed this report on Form N-CSR of New Century Portfolios; 2.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; 3.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, changes in net assets, and cash flows (if the financial statements are required to include a statement of cash flows) of the registrant as of, and for, the periods presented in this report; 4.The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Rule 30a-3(c) under the Investment Company Act of 1940) and internal control over financial reporting (as defined in Rule 30a-3(d) under the Investment Company Act of 1940) for the registrant and have: (a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; (b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our 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; (c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of a date within 90 days prior to the filing date of this report based on such evaluation; and (d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the second fiscal quarter of the period covered by this report that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and 5.The registrant’s other certifying officer(s) and I have disclosed 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: January 4, 2012 /s/ Nicole M. Tremblay Nicole M. Tremblay, President CERTIFICATIONS I, Stephen G. DaCosta, certify that: 1.I have reviewed this report on Form N-CSR of New Century Portfolios; 2.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; 3.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, changes in net assets, and cash flows (if the financial statements are required to include a statement of cash flows) of the registrant as of, and for, the periods presented in this report; 4.The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Rule 30a-3(c) under the Investment Company Act of 1940) and internal control over financial reporting (as defined in Rule 30a-3(d) under the Investment Company Act of 1940) for the registrant and have: (a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; (b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our 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; (c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of a date within 90 days prior to the filing date of this report based on such evaluation; and (d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the second fiscal quarter of the period covered by this report that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and 5.The registrant’s other certifying officer(s) and I have disclosed 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: January 4, 2012 /s/ Stephen G. DaCosta Stephen G. DaCosta, Treasurer
UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C.20549 SCHEDULE 14C INFORMATION INFORMATION STATEMENT PURSUANT TO SECTION 14(c) OF THE SECURITIES EXCHANGE ACT OF 1934 Filed by the Registrantþ Filed by a Party other than the Registranto Check the appropriate box: þ Preliminary Information Statement o Confidential, for Use of the Commission Only (as permitted by Rule 14c-5(d)(2)) o Definitive Information Statement Uni Core Holdings Corporation (Name of Registrant as Specified In Its Charter) (Name of Person(s) Filing Proxy Statement, if other than the Registrant) Payment of Filing Fee (Check the appropriate box): þNo fee required oFee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11. (1)Title of each class of securities to which transaction applies: (2)Aggregate number of securities to which transaction applies: (3)Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing fee is calculated and state how it wasdetermined): (4)Proposed maximum aggregate value of transaction: (5)Total fee paid: oFee paid previously with preliminary materials. oCheck box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the form or schedule and the date of its filing. (1)Amount Previously Paid: (2)Form, Schedule or Registration Statement No.: (3)Filing Party: (4)Date Filed: Uni Core Holdings Corporation INFORMATION STATEMENT FOR NOTICE OF ACTION BY MAJORITY SHAREHOLDERS ON WRITTEN CONSENT November [], 2013 GENERAL INFORMATION This Information Statement is furnished to you by the Board of Directors of Uni Core Holdings Corporation, a Wyoming corporation (the “Company”) in connection with an amendment and restatement of the Articles of Incorporation of the Company to effect a five thousand into one reverse stock split (the “Reverse Stock Split”).We have attached hereto as Appendix A the form of Amended and Restated Articles of Incorporation we intend to file with the Secretary of State of the State of Wyoming. NO VOTE OR OTHER ACTION OF THE COMPANY’S SHAREHOLDERS IS REQUIRED IN CONNECTION WITH THIS INFORMATION STATEMENT. WE ARE NOT ASKING YOU FOR A PROXY AND YOU ARE REQUESTED NOT TO SEND US A PROXY. Why am I receiving these materials? Our Board of Directors has delivered printed versions of these materials to you by mail, in connection with the Board’s and majority shareholders’ approval by written consent of the shareholders of the Company, of an amendment and restatement of the Articles of Incorporation of the Company to effect a five thousand into one reverse stock split. When will this action be taken? The Board anticipates that the Amended and Restated Articles of Incorporation will be filed with the Wyoming Secretary of State 20 calendar days following the mailing of this Information Statement to shareholders in accordance with Rule 14c-2 of the Securities and Exchange Act, or approximately in mid-November 2013. Why are you proposing this Action? The Board of Directors deems it to be in the best interests of the shareholders of the Company to effect a reverse split of the common stock of the Corporation, with each shareholder receiving 1 new share of common stock of the Company for each 5,000 shares of common stock of the Company held by such shareholder in order to increase the marketability and attractiveness of the common stock of the Company to investors and enhance the ability of the Company to obtain future financing. Do I need to give my consent? No.Holders of a majority of the Company’s outstanding shares have consented in writing to amendment and restatement of the Company’s Articles of Incorporation and the Board is neither seeking your consent nor a proxy to vote your shares to approve the amendment of the Company’s Articles of Incorporation at this time. Are you having a meeting of shareholders? No. 2 How may I communicate with the Company’s Board of Directors? You may send correspondence to the Chief Financial Officer of the Company, Mr. Yi Sun Liu, in care of The Corporate Law Group, 1342 Rollins Road, Burlingame, California 94010.Mr. Liu will submit your correspondence to the Board of Directors or the appropriate committee or director, as applicable. How much will the amendment of the Articles of Incorporation cost the Company? We anticipate that the costs of preparing, filing, printing and mailing this Information Statement to shareholders and the filing fees associated with the Amended and Restated Articles will not exceed $50,000. PROPOSED AMENDMENT AND RESTATEMENT OF THE COMPANY’S ARTICLES OF INCORPORATION This Information Statement is furnished by the Board of Directors of the Company, to the holders of record at the close of business on October 31, 2013 (the “Record Date”) of the Company’s outstanding common stock, par value $0.001 per share (“Common Stock”). Our Board of Directors believes that the Reverse Stock Split is in the best interests of the Company and its shareholders.The amendment to our Articles of Incorporation, the form of Amended and Restated Articles of Incorporation presented herewith and the Reverse Stock Split all have the unanimous support of our Board of Directors and the written consent of the holders of a majority of our outstanding stock.We anticipate that the Amended and Restated Articles of Incorporation will be filed with the Wyoming Secretary of State in mid-November. The Wyoming Business Corporation Act allows the Company’s Articles of Incorporation to be amended and restated upon written consent of the holders of a majority of the Company’s outstanding shares.The proposed Amended and Restated Articles of Incorporation were unanimously approved by our Board of Directors and by the holders of a majority of the Company’s outstanding shares.Following the filing of our Amended and Restated Articles of Incorporation, we will have approximately 1,905,006 shares of common stock issued and outstanding. Possible Anti-Takeover Affect The Reverse Stock split may be seen as an anti-takeover measure.We are unaware of any specific effort by any third party to accumulate our securities or to obtain control over the Corporation.The Reverse Stock Split is being proposed at this time because we believe that it will make our stock more attractive to investors. Our Articles of Incorporation already include authorization of preferred stock, which can also be seen as an anti-takeover measure, and our Board of directors can designate the rights, preferences, privileges and restrictions of series of preferred stock without further shareholder action.Cumulative voting is not provided for in our Articles of Incorporation or Bylaws or in the Wyoming Business Corporations Act, which also may make it harder for third parties to gain control over the Company. We do not currently have a staggered Board of Directors, and we have not adopted any shareholders rights plans, or so-called poison pills. The proposed Reverse Stock Split should not have any direct affect on the tenure of our management and is not intended to and should not change or limit shareholder involvement in our Company.The Reverse Stock Split should not change the relative voting power of any of our shareholders.In connection with the Reverse Stock Split, shareholders holding an aggregate number of shares of our common stock, which when divided by 5,000 does not result in a whole number, will experience a slightly increased influence due to the fact that we are rounding all fractional shares up to the next nearest whole share. For example, if you own 10,000 shares of our common stock pre-split, you will own 2 shares post-split (10,000/5,000 2).If you own less than 5,000 shares of our common stock pre-split, you will own 1 share post-split.We currently estimate that the Reverse Stock Split will result in issuance of approximately 553 shares due to such rounding of otherwise fractional shares. 3 We currently have 10,000,000,000 authorized shares of common stock and 5,000,000 authorized shares of undesignated preferred stock.We currently have no shares of preferred stock issued or outstanding.The authorized shares of common or preferred stock that are already available for issuance may be used by us to oppose a hostile takeover attempt or delay or prevent changes in the persons controlling us or removal of our management.For example, without further shareholder approval, our Board of Directors may be able to strategically sell shares of our common or preferred stock in one or more private transactions to purchasers who would oppose a takeover or favor our current Board of Directors and management.The Board of Directors or management may use the additional shares to resist or frustrate a third party transaction providing an above market premium that is favored by a majority of the independent shareholders. This Information Statement is dated November 11, 2013 and is first being mailed to our shareholders on or about November 11, 2013.Our executive offices are located at Room 1207-1208 Bank of America Tower, 12 Harcourt Road, Central, Hong Kong. SECURITY OWNERSHIP OF DIRECTORS AND MANAGEMENT AND RELATED SHAREHOLDER MATTERS Common Stock The following table is furnished as of October 31, 2013, and sets forth certain information regarding the beneficial ownership of our common stock held by each of our directors, by each of our principal shareholders and by all of our directors and executive officers as a group. Name and Address of Beneficial Owner(1) Number of Shares Beneficially Owned Percent Global Golden Group Investment Co. Ltd % FG Management Limited % Wise Alliance Management Limited % Fred Peck % Chia Hsun Wu(2) % Thomas Lee(2) % Hiroshi Shinohara % Unless otherwise noted, each person or group identified possesses sole voting and investment power with respect to the shares shown opposite the name of each person or group. Mr. Wu and Mr. Lee resigned as Chief Executive Officer and Chief Financial Officer, respectively, of the Company effective August 1, 2013. OTHER BUSINESS The Company knows of no other matters to be submitted to Shareholders at this time.Date: By Order of the Board of Directors Uni Core Holdings Corporation Date:November [], 2013 By: /s/Yi Sun Liu Yi Sun Liu, Chief Financial Officer 4
Exhibit 10.18 LOAN AGREEMENT $11,000,000 Dated as of March 3, 2011 by and between ISRAMCO, INC. A Delaware corporation, as the “Borrower”, and I. O. C. - ISRAEL OIL COMPANY, LTD. As the “Lender” LOAN AGREEMENT THIS LOAN AGREEMENT (the “Agreement”), dated as of March 3, 2011, is made and entered into by and between ISRAMCO, INC., a Delaware corporation (the “Borrower or "Isramco”) and I. O. C. - ISRAEL OIL COMPANY, LTD. (the “Lender”). WITNESSETH: WHEREAS, Isramco Energy, L.L.C., a Texas limited liability company (“Isramco Energy”), is a wholly owned subsidiary of the Borrower; WHEREAS, Isramco Energy owns interests in numerous oil and gas properties, located primarily in Texas, which were acquired from Five States Energy Company, L.L.C. and its related entities (the “Acquisition”); WHEREAS, the Acquisition was financed, in part, through a credit facility (the “Credit Facility”) in the aggregate principal amount of $150,000,000 dated March 2, 2007, with Wells Fargo Bank National Association, which was subsequently transferred and assigned to Wells Fargo Foothill, LLC (“Wells Fargo”); WHEREAS, the Credit Facility matures on March 2, 2011 WHEREAS, the outstanding principal balance under the Credit Facility is approximately $4,500,000; WHEREAS, Isramco Energy has hedging contracts (the “Hedges”) with Wells Fargo that will terminate on March 2, 2011 and will require a payment of approximately $6,500,000 in the current market, unless the Hedges are transferred to another financial institution; WHEREAS, Isramco Energy wishes to pay all amounts due under the Credit Facility and amounts due under the Hedges and terminate its relationship with Wells Fargo; and WHEREAS, the Isramco desires to obtain financing in the amount of Eleven Million US Dollars ($11,000,000) from the Lender to invest in Isramco Energy for the purposes of terminating the Credit Facility and Hedges, and for other lawful corporate purposes; WHEREAS, the Lender is willing to extend the financing to Borrower upon the terms and conditions herein set forth. NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, and other good and valuable consideration, receipt of which is acknowledged by the parties hereto, the parties agree, as follows: ARTICLE I CERTAIN DEFINITIONS When used herein, the following terms shall have the following meanings: Loan Agreement Page 1 1.1 Business Day shall mean a day other than a Saturday, Sunday or a day upon which banks in the State of Texas are closed to business generally. 1.2 Default Rate shall mean the Stated Rate plus 12 percentage points (12%) per annum. 1.3 Effective Date shall mean March 3, 2011. 1.4 Event of Default shall mean any of the events specified in Section 7.1 of this Agreement, and Default shall mean any event, which together with any lapse of time or giving of any notice, or both, would constitute an Event of Default. 1.5 Governmental Authority shall include the country, the state, county, city and political subdivisions in which any Person or such Person’s property is located or which exercises valid jurisdiction over any such Person or such Person’s property, and any Tribunal of any of them, including monetary authorities, which exercises valid jurisdiction over any such Person or such Person’s property. Unless otherwise specified, all references to Governmental Authority herein shall mean a Governmental Authority having jurisdiction over, where applicable, Borrower, any of its Subsidiaries, any of Borrower’s properties or the Lender. 1.6 Governmental Requirement shall mean any Law, or other directive or requirement (whether or not having the force of law), including, without limitation, environmental laws, energy regulations and occupational, safety and health standards or controls, of any Governmental Authority. 1.7 Indebtedness shall mean any and all: (i) indebtedness, obligations and liabilities of the Borrower to the Lender incurred or which may be incurred hereafter pursuant to the terms of this Agreement or any of the other Loan Documents, and any extensions, renewals, substitutions, amendments and increases in amount thereof, including such amounts as may be evidenced by the Note and all lawful interest thereon and other charges, and all reasonable costs and expenses incurred by the Lender in connection with the preparation, filing and recording of the Loan Documents, including attorneys fees (ii) all reasonable costs and expenses, including attorneys’ fees, paid or incurred by the Lender in enforcing or attempting to enforce collection of any Indebtedness and in enforcing or realizing upon or attempting to enforce or realize upon any collateral or security for any Indebtedness and in protecting and preserving the Lender’s interest in the Indebtedness or any collateral or security for any Indebtedness in any bankruptcy or reorganization proceeding, including interest on all sums so expended by the Lender accruing from the date upon which such expenditures are made until paid, at an annual rate equal to the Default Rate; and (iii) sums expended by the Lender in curing any Event of Default or Default of the Borrower under the terms of this Agreement, the other Loan Documents or any other security agreement or other writing evidencing or securing the payment of the Indebtedness described herein, including the Note. 1.8 Law(s) shall mean all statutes, laws, ordinances, regulations, orders, rules, codes, permits, franchises, licenses, certificates, writs, injunctions, or decrees of the United States, any state or commonwealth, any municipality, any foreign country, any territory or possession, or any Tribunal. Loan Agreement Page 2 1.9 Loan shall mean the funds owing to the Lender by the Borrower pursuant to the Loan Agreements. 1.10 Loan Documents means, on any date, this Agreement, the Note and all other agreements relating to this Agreement entered into from time to time between Borrower and the Lender and all other documents and certificates executed and delivered to the Lender by the Borrower in connection with any of the foregoing, as from time to time amended, supplemented, or otherwise modified and in effect on such date. 1.11 Material Adverse Effect shall mean any material and adverse effect on (i) the assets, liabilities, financial condition, business, operations, prospects or affairs of the Borrower and its Subsidiaries taken as a whole; or (ii) the ability of the Borrower and its Subsidiaries, taken as a whole, to carry out their business on and after the Effective Date or as proposed as of the Effective Date to be conducted or meet its obligations under the Loan Documents on a timely basis. 1.12 Maturity Date shall mean, unless the Note is sooner accelerated pursuant to this Agreement, March 3, 2012. 1.13 Maximum Rate shall mean at any particular in question, the maximum rate of interest which, under applicable law, may then be charged. If such maximum rate changes after the date hereof, the Maximum Rate shall be automatically increased or decreased, as the case may be, without notice to Borrower from time to time as the effective date of each change in such maximum rate period. 1.14 Note shall mean the Note as described and defined in Article II of this Agreement, together with each and every extension, renewal, modification, replacement, substitution and change in form thereof which may be from time to time and for any term or terms effected. 1.15 Person shall mean and include an individual, a partnership, a limited partnership, a limited liability company, a joint venture, a corporation, a trust, an unincorporated organization, and a government or any department, 1.16 Responsible Officer shall mean the chief executive officer, chief operating officer, chief financial officer, president or managing director of the Borrower. 1.17 Subsidiary shall mean (i) any corporation, at least 50% of the total combined voting power of all classes of Voting Stock of which shall, at the time as of which any determination is being made, be owned by the Borrower either directly or through Subsidiaries; and (ii) any partnership, joint venture or similar entity if at least a 50% interest in the profits or capital thereof is owned by the Borrower, either directly or through Subsidiaries. 1.18 Stated Rate shall mean a rate per annum equal to 10%; provided, however, that if the Stated Rate ever exceeds the Maximum Rate, the Stated Rate shall then and thereafter be fixed at a rate per annum equal to the Maximum Rate then and from time to time thereafter in effect until the total amount of interest accrued at the Stated Rate on the unpaid balance of this Note equals the total amount of interest which would have accrued at the Maximum Rate from time to time in effect. Loan Agreement Page 3 1.19 Taxes shall mean all taxes, assessments, fees, or other charges or levies from time to time or at any time imposed by any Laws or by any Tribunal as hereafter defined. 1.20 Tribunal shall mean any municipal, state, commonwealth, Federal, foreign, territorial or other sovereign, governmental entity, governmental department, court, commission, board, bureau, agency or instrumentality. 1.21 Other Definitional Provisions. References to Sections, subsections, Exhibits and Schedules shall be to Sections, subsections, Exhibits and Schedules, respectively, of this Agreement unless otherwise specifically provided. Any of the terms defined in Article I may, unless the content otherwise requires, be used in the singular or the plural depending on the reference. In this Agreement, words importing any gender include the other genders; the words including, includes and include shall be deemed to be followed by the words without limitation; references to agreements and other contractual instruments shall be deemed to include subsequent amendments, assignments, and other modifications thereto, but only to the extent such amendments, assignments and other modifications are not prohibited by the terms of this Agreement or any other Loan Document; references to Persons include their respective permitted successors and assigns or, in the case of governmental Persons, Persons succeeding to the relevant functions of such any amendments of same and any successor statutes and regulations. ARTICLE II LOAN 2.1 Loan. Upon the terms and subject to the conditions hereinafter set forth, the Lender agrees to loan to Borrower the sum of Eleven Million US Dollars ($11,000,000) (the “Loan”). The Loan will be funded on or before the Effective Date. The unpaid principal balance and all accrued interest of the Loan are due and payable on the Maturity Date. 2.2 Payments by Lender. The Lender shall fund the Loan to Borrower, as requested by Borrower, by wire transfer of immediately available funds by 11:00 a.m. Houston, Texas time to the account of the Borrower as designated by the Borrower for such purpose by written notice to the Lender. 2.3 Note. The Borrower shall execute and deliver to the order of the Lender a promissory note in the original principal amount the Loan, the form of which is annexed hereto as Exhibit A and hereby made a part hereof (hereinafter referred to as the “Note”). The Note shall be dated as of the Effective Date, and shall provide for payment of principal and accrued interest on the Maturity Date. The Note shall bear interest on the unpaid balance of principal from time to time outstanding and on any past due interest at an annual interest rate determined pursuant to Section 2.6 hereof, but in no event at a rate greater than permitted by applicable Law. All payments received shall be applied first to accrued interest and then to the outstanding principal amount owing on the Note. All payments and prepayments shall be made in lawful money of the United States of America. After maturity (whether by acceleration or otherwise) the Note shall bear interest at the Default Rate, payable on demand. Interest shall be calculated on the basis of a year of 365 days, but assessed for the actual number of days elapsed before full payment. Loan Agreement Page 4 2.4 Proceeds of Loan. Proceeds of the Loan shall be used only for the purposes of Borrower’s equity contribution to Isramco Energy, a wholly owned subsidiary of Borrower, which will in turn utilize these proceeds for (i) working capital and general corporate purposes; and (ii) repayment and discharge of the Credit Facility and Hedges. 2.5 Responsible Officer. A Responsible Officer may, from time to time, notify the Lender in writing of a change in the Responsible Officer. From and after the Lender’s receipt of such written notice, the Lender may rely on any such request or certificate purportedly signed by any individual who has been so designated as a Responsible Officer pursuant to this Agreement unless or until it receives written notice from a Responsible Officer of the deletion of a Responsible Officer. 2.6 Interest Rates. (a) Interest Prior to Maturity. Subject to the provisions and limitations hereof, the outstanding principal balance of the Loan hereunder shall accrue interest at the Stated Rate. (b) Interest After Maturity. After the outstanding principal amount of the Loan shall have become past due (by acceleration or past the stated maturity date), such Loan shall bear interest for each day until paid (before and after judgment) at the Default Rate. 2.7 Prepayments. Borrower shall have the right at its option, from time to time, to prepay the Loan in whole or part without premium or penalty at any time. 2.8 Payments. Accrued interest shall be payable quarterly on June 3, 2011, September 3, 2011, and December 3, 2011. Principal and accrued interest shall be payable on or before the Maturity Date. 2.9 Payments From Borrower. All payments shall be payable to the Lender on the day when due without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived, and an action therefor shall immediately accrue if not timely paid within applicable grace or curative periods herein specified. Such payments shall be made to the Lender at such location as Lender may from time to time designate in writing in U.S. Dollars in funds immediately available at such office without set off, counterclaim or other deduction of any nature. To the extent permitted by law, after there shall have become due (by acceleration or otherwise), interest or any other amounts due from the Borrower hereunder or under the Note (excluding overdue principal, which shall bear interest as described in Section 2.6(b) hereof), such amounts shall bear interest for each day until paid (before and after judgment), payable on demand, at the Default Rate. Loan Agreement Page 5 2.10 Full Payment. All outstanding principal and accrued but unpaid interest on the Note shall be due and payable at the Maturity Date. ARTICLE III CONDITIONS PRECEDENT TO LOANS 3.1 Conditions Precedent to Funding. The effectiveness of this Agreement is subject to the satisfaction of all of the following conditions on or prior to the Effective Date (in addition to the other terms and conditions set forth herein): (a) Representations and Warranties. The covenants, representations and warranties set forth herein and in the other Loan Documents shall be true and correct in all material respects on and as of the Effective Date, with the same effect as though made on and as of the Effective Date. (b) Note. The Borrower shall have executed and delivered to the Lender the Note payable to the order of the Lender. (c) Other Information. The Lender shall have received such other information, documents and assurances as shall be reasonably requested by the Lender. ARTICLE IV AFFIRMATIVE COVENANTS The Borrower covenants and agrees with the Lender that from the date hereof and so long as this Agreement is in effect (by extension, amendment or otherwise) and until payment in full of all Indebtedness and the performance of all other obligations of the Borrower under this Agreement, unless the Lender shall otherwise consent in writing: 4.1 Payment of Taxes and Claims. The Borrower will pay and discharge or cause to be paid and discharged all Taxes imposed upon the income or profits of the Borrower or upon the property, real, personal or mixed, or upon any part thereof, belonging to Borrower before the same shall be in default, and all lawful claims for labor, rentals, materials and supplies which, if unpaid, might become a Lien upon its property or any part thereof; provided, however, that the Borrower shall not be required to pay and discharge or cause to be paid or discharged any such Tax, assessment or claim so long as the validity thereof shall be contested in good faith by appropriate proceedings, and adequate book reserves shall be established with respect thereto, and the Borrower shall pay such Tax, charge or claim before any property subject thereto shall become subject to levy of attachment or execution. 4.2 Maintenance of Existence. The Borrower will do or cause to be done all things necessary to preserve and keep in full force and effect its organizational existence, rights and franchises and good standing in the State of Delaware and as a foreign corporation qualified in such other jurisdiction(s) in which the failure to maintain such qualification would have a Material Adverse Effect. Loan Agreement Page 6 4.3 Preservation of Property. The Borrower will at all times maintain, preserve and protect all of the Borrower’s properties which are used or useful in the conduct of the Borrower’s businesses whether owned in fee or otherwise, or leased, in good repair and operating condition and comply with all material leases to which it is a party or under which it occupies property so as to prevent any material loss or forfeiture thereunder. 4.4 Payment of Indebtedness/Performance of Obligations. The Borrower will pay the obligations under the Note according to the reading, tenor and effect thereof and the Borrower hereby agrees to pay, when due and owing, all Indebtedness, whether or not evidenced by the Note. 4.5 Operation of Properties and Equipment. (a) The Borrower will maintain and operate, and will cause each of its Affiliates (if any) to maintain and operate, their respective properties in a good and workmanlike manner, except to the extent a failure to so observe and comply is not reasonably expected to have a Material Adverse Effect. (b) The Borrower will comply, and will cause each of its Affiliates (if any) to comply, in all respects with all contracts and agreements applicable to or relating to their respective properties, except to the extent a failure to so ARTICLE V NEGATIVE COVENANTS and until payment in full of all Indebtedness, unless the Lender shall otherwise consent in writing: 5.1 Use of Loan Proceeds. The Borrower shall not use any proceeds of the Loan for any purpose other than those expressly permitted and contemplated by this Agreement, and in no event shall any loan proceeds be used for any purpose that would create or cause a breach, violation or default or event of default hereunder or under any of the other Loan Documents or violation of Regulations T, U or X or any other regulation of the Board of Governors of the Federal Reserve System or to violate Section 7 of the Securities Exchange Act of 1934 or any rule or regulation thereunder, in each case as now in effect or as the same may hereinafter be in effect. ARTICLE VI REPRESENTATIONS AND WARRANTIES To induce the Lender to enter into this Agreement, and in consideration thereof, the Borrower represents, warrants and covenants as follows: 6.1 Good Standing, and Due Qualification. The Borrower (a) is a limited liability company duly formed, validly existing, and in good standing under the laws of the State of Delaware; (b) has the power and authority to own its assets and to transact the business in which it is now engaged or in which it is proposed to be engaged; and (c) is duly qualified as a foreign corporation and in good standing under the laws of each other jurisdiction in which such qualification is required, except where the failure to so qualify could not reasonably be expected to have a Material Adverse Effect. The initial Responsible Officer of the Borrower has all necessary corporate power and authority to execute and deliver this Agreement, the Note, and the other Loan Documents to the Lender. Loan Agreement Page 7 6.2 Litigation. There is no action, suit, investigation or proceeding threatened or pending before any Tribunal against or affecting the Borrower or any properties or rights of the Borrower, which, if adversely determined, would result in any material adverse change in the business or condition, financial or otherwise, of the Borrower, or otherwise materially adversely affect the ability of the Borrower to perform its obligations under this Agreement. The Borrower is not in default with respect to any judgment, order, writ, injunction, decree, rule or regulation of any Tribunal. 6.3 Conflicting Agreements and Other Matters. To the best of Borrower’s knowledge and belief, the Borrower is not in default in the performance of any material obligation, covenant, or condition in any material agreement to which it is a party or by which it is bound. Neither the execution nor delivery of any of the Loan Documents, nor fulfillment of, nor compliance with their respective terms and provisions will conflict with, or result in a material breach of the terms, conditions or provisions of, or constitute a default under, or result in any material violation of, or result in the creation of any Lien (except those created by the Loan Documents) upon any of the properties or assets of the Borrower pursuant to, or require any consent, approval or other action by or any notice to or filing with any Tribunal (other than routine filings after the Effective Date with the Securities and Exchange Commission, any securities exchange and/or state blue sky authorities) pursuant to any award of any arbitrator, or any agreement, instrument or Laws to which the Borrower is subject. 6.4 Title to Properties, Authority. The Borrower has full power, authority and legal right to own and operate the properties which it now owns and operates, and to carry on the lines of business in which it is now engaged, and to the knowledge of Borrower has good and defensible title to all of its assets. The Borrower has full power, authority and legal right to execute and deliver and to perform and observe the provisions of this Agreement and the other Loan Documents and the Loan Documents constitute the legal, valid and binding obligations of the Borrower, enforceable against it in accordance with their respective terms, subject only to applicable bankruptcy, insolvency or similar laws and general principles of equity. 6.5 Corporate Authorization. The Borrower has duly authorized the execution and delivery of each of the Loan Documents and the performance of their respective terms. No other authorizations, approvals, consents or actions of any other Person are required as a prerequisite to the validity and enforceability of the Loan Documents. Loan Agreement Page 8 ARTICLE VII EVENTS OF DEFAULT 7.1 Events of Default. The occurrence of any one or more of the following events shall constitute an Event of Default (whether such occurrence shall be voluntary or involuntary or come about or be effected by operation of Law or otherwise): (a) Borrower shall fail to make any annual or other payment due on the Note, or fail to pay any other fee, charge or assessment within thirty (30) days after the same shall become due and payable (whether by extension, renewal, acceleration, maturity or otherwise); or (b) Any representation, warranty or certification of the Borrower made herein, or in any other writing furnished in connection with or pursuant to any of the Loan Documents shall have been incorrect, false or misleading in any material respect on the date when made; or (c) The Borrower shall fail to duly observe, perform or comply with any covenant, agreement or term (other than payment provisions which are governed by subparagraph (a) hereof) contained in this Agreement or any of the Loan Documents and such default or breach shall have not been cured or remedied within thirty (30) days following the date the Lender first notifies the Borrower in writing; or (d) Any of the following: (i) the Borrower shall be unable to pay its debts as they mature, or shall make an assignment for the benefit of creditors or admit in writing its inability to pay its debts generally as they become due or fail generally to pay its debts as they mature; or (ii) an order, judgment or decree is entered adjudicating the Borrower insolvent or an order for relief under the United States Bankruptcy Code is entered with respect to the Borrower; or (iii) the Borrower shall petition or apply to any Tribunal for the appointment of a trustee, receiver, custodian or liquidator of the Borrower or of any substantial part of the assets of the Borrower or shall commence any proceedings relating to the Borrower under any bankruptcy, reorganization, compromise, arrangement, insolvency, readjustment of debts, dissolution, or liquidation Law of any jurisdiction, whether now or hereafter in effect; or (iv) any such petition or application shall be filed, or any such proceedings shall be commenced, against the Borrower and the Borrower by any act shall indicate its approval thereof, consent thereto or acquiescence therein, or an order, judgment or decree shall be entered appointing any such trustee, receiver, custodian or liquidator, or approving the petition in any such proceedings, and such order, judgment or decree shall remain unstayed and in effect for more than thirty (30) days; or (v) the Borrower shall fail to make timely payment or deposit of any amount of tax required to be withheld by such Borrower and paid to or deposited to or to the credit of the United States of America pursuant to the provisions of the Internal Revenue Code of 1986, as amended, in respect of any and all wages and salaries paid to employees of the Borrower; or (e) Any default or event of default under any of the other Loan Documents following the lapse of any applicable curative or grace period provided therein. Loan Agreement Page 9 7.2 Remedies. Upon the occurrence of any Event of Default referred to in Section 7.1, the Note and all other Indebtedness shall be immediately due and payable, without notice of any kind. Upon the occurrence of any other Event of Default, and without prejudice to any right or remedy of the Lender under this Agreement or the Loan Documents or under applicable Law or under any other instrument or document delivered in connection herewith, the Lender may declare the Note and the Indebtedness, or any part thereof, to be forthwith due and payable, whereupon the Note and the other Indebtedness, or such portion as is designated by the Lender shall forthwith become due and payable, without presentment, demand, notice or protest of any kind, all of which are hereby expressly waived by the Borrower. No delay or omission on the part of the Lender in exercising any power or right hereunder or under the Note, the Loan Documents or under applicable law shall impair such right or power or be construed to be a waiver of any default or any acquiescence therein, nor shall any single or partial exercise by Lender of any such power or right preclude other or further exercise thereof or the exercise of any other such power or right by such Person. In the event that all or part of the Indebtedness becomes or is declared to be forthwith due and payable as herein provided, Lender shall have the right to set off the amount of all the Indebtedness of the Borrower owing to such Person against, and shall have a lien upon and security interest in, all property of the Borrower in such Person’s possession at or subsequent to such default, regardless of the capacity in which such property is held, including but not limited to any balance or share of any deposit, demand, collection or agency account. At any time after the occurrence of any Event of Default, the Lender may, at its option, cause an audit of any and/or all of the books, records and documents of the Borrower to be made by auditors satisfactory to the Lender at the expense of the Borrower. The Lender also shall have, and may exercise, each and every right and remedy granted to it for default under the terms of the other Loan Documents. 7.3 Application of Proceeds. After the exercise of remedies provided for in Section 7.2 (or after the Indebtedness automatically becomes immediately due and payable as set forth in Section 7.2), any amounts received on account of such Indebtedness shall be applied in the following order: First: to payment of that portion of the Indebtedness constituting fees, indemnities, expenses or other amounts (other than principal and interest) payable to the Lender (including fees, charges and disbursements of counsel); Second: to payment of accrued and unpaid interest on the Indebtedness; Third: to payment of unpaid principal of the Indebtedness; and Last: the balance, if any, after all of the Indebtedness has been indefeasibly paid in full, to Borrower or as otherwise required by applicable Laws. Loan Agreement Page 10 ARTICLE VIII MISCELLANEOUS 8.1 Notices. Unless otherwise provided herein, all notices, requests, consents and demands shall be in writing and shall be either hand-delivered (by courier or otherwise), mailed by certified mail, postage prepaid, or transmitted via telex or facsimile to the respective addresses specified below, or, as to any party, to such other address as may be designated by it in written notice to the other parties: If to the Borrower, to: Isramco, Inc. 2425 West Loop South, Suite 810 Houston, TX 77027 Telephone No.: (713) 621 -3882 Facsimile No.: (713) 621 – 3988 e – mail jayoil@swbell.net If to the Lender, to: 8 Granit St. P.O.B. 10188 Petach-Tikva 49002 Israel Phone: 972-3-922-922-5 e-mail: office@isramco.com All notices, requests, consents and demands hereunder will be effective when hand-delivered or transmitted by telecopier or sent, answer-back received, respectively, by the Lender to the notice address of the Borrower, or two (2) Business Days after the date when mailed by certified mail, postage prepaid, in each case given or addressed as aforesaid by either party hereto. 8.2 Place of Payment. All sums payable hereunder shall be paid in immediately available funds, at such location as may be designated from time to time in writing by Lender. If any interest, principal or other payment falls due on a date other than a Business Day, then (unless otherwise provided herein) such due date shall be extended to the next succeeding Business Day, and such extension of time will, in such case, be included in computing interest, if any, in connection with such payment. 8.3 Survival of Agreements. All covenants, agreements, representations and warranties made herein shall survive the execution and the delivery of Loan Documents. 8.4 Parties in Interest. All covenants, agreements and obligations contained in this Agreement shall bind and inure to the benefit of the parties hereto and the respective successors and permitted assigns of the parties hereto, except that the Borrower may not assign any of its rights or obligations hereunder or under the Note without the prior written consent of the Lender. Loan Agreement Page 11 8.5 Governing Law. This Agreement and the Note shall be deemed to have been made or incurred under the Laws of the State of Texas and shall be construed and enforced in accordance with and governed by the Laws of Texas except only where the applicable remedial or procedural laws of the other jurisdictions are situated are applicable thereto. Tex. Rev. Civ. Stat. Ann. Art. 5069, Ch 15 (which regulates certain revolving credit loan accounts and revolving tri-party accounts) shall not apply to this Agreement or the Note. 8.6 Interest. It is the intention of the parties hereto that the Lender shall conform strictly to usury laws applicable to them. Accordingly, if the transactions contemplated hereby would be usurious as to the Lender under laws applicable to it (including the laws of the United States of America or any other jurisdiction whose laws may be mandatorily applicable the Lender notwithstanding the other provisions of this Agreement), then, in that event, notwithstanding anything to the contrary in any of the Loan Documents, it is agreed as follows: (i) the aggregate of all consideration which constitutes interest under law applicable to the Lender that is contracted for, taken, reserved, charged or received by the Lender under any of the Loan Documents or agreements or otherwise in connection with the Note shall under no circumstances exceed the Maximum Rate, and any excess shall be canceled automatically and if theretofore paid shall be credited by such Lender on the principal amount of the Indebtedness (or, to the extent that the principal amount of the Indebtedness shall have been or would thereby be paid in full, refunded by any Lender to the Borrower); and (ii) in the event that the maturity of the Note is accelerated by reason of an election of the holder thereof resulting from any Event of Default under this Agreement or otherwise, or in the event of any required or permitted prepayment, then such consideration that constitutes interest under law applicable to the Lender may never include interest greater than the Maximum Rate, and excess interest, if any, provided for in this Agreement or otherwise shall be canceled automatically as of the date of such acceleration or prepayment and, if theretofore paid, shall be credited by the Lender on the principal amount of the Indebtedness (or, to the extent that the principal amount of the Indebtedness shall have been or would thereby be paid in full, refunded by the Lender to the Borrower). All sums paid or agreed to be paid to the Lender for the use, forbearance or detention of sums due hereunder shall, to the extent permitted by law, be amortized, prorated, allocated and spread throughout the full term of the Loans evidenced by the Note until payment in full so that the rate or amount of interest on account of any Loans hereunder does not exceed the Maximum Rate. If at any time and from time to time (i) the amount of interest payable to the Lender on any date shall be computed at the highest lawful rate applicable to the Lender pursuant to this Section 8.6; and (ii) in respect of any subsequent interest computation period the amount of interest otherwise payable to Lender would be less than the amount of interest payable to the Lender computed at the highest lawful rate applicable to the Lender, then the amount of interest payable to the Lender in respect of such subsequent interest computation period shall continue to be computed at the highest lawful rate applicable to the Lender until the total amount of interest payable to the Lender shall equal the total amount of interest which would have been payable to the Lender if the total amount of interest had been computed without giving effect to this Section 8.6. To the extent that the Texas Credit Title (V.T.C.A., Texas Finance Code §§ 301.001 et seq.) is relevant to the Lender for the purpose of determining the highest lawful rate, the Lender hereby elects to determine the applicable ceiling rate under the Texas Credit Title by the weekly ceiling from time to time in effect. 8.7 No Waiver, Cumulative Remedies. No failure to exercise, and no delay in exercising, on the part of the Lender, any right, power or privilege hereunder or under any other Loan Document or applicable Law shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege of the Lender. The rights and remedies herein provided are cumulative and not exclusive of any other rights or remedies provided by any other instrument or by law. No notice to or demand on the Borrower in any case shall entitle the Borrower to any other or further notice or demand in similar or other circumstances. Loan Agreement Page 12 8.8 Costs. The Borrower agrees to pay to the Lender on demand all recording fees and filing costs, all reasonable attorneys fees and reasonable legal expenses incurred or accrued by the Lender in connection with and preparation, negotiation, closing, administration, perfection, enforcement, refinancing, renegotiation, restructuring, amendment, waiver or other modifications of this Agreement and the Loan Documents or any amendment, waiver, consent or modification to and of the Loan Documents. In any action to enforce or construe the provisions of this Agreement or any of the Loan Documents, the Lender shall be entitled to recover its reasonable attorneys’ fees, disbursements of counsel and all costs and expenses related thereto. 8.9 Right of Set - Off. The Borrower hereby grants to the Lender a lien, security interest and right of setoff as security for all Indebtedness and obligations of the Borrower upon and against all deposits, credit, and property of the Borrower, now or hereafter in the possession, custody, safekeeping or control of such Person; and upon (a) the occurrence and during the continuance of any Event of Default; and (b) the decision by the Lender to declare the Note due and payable pursuant to the provisions of Article VII, the Lender is hereby authorized at any time and from time to time, to set off and otherwise apply any and all deposits (general or special, time or demand, provisional or final, other than trust funds) at any time held and other indebtedness at any time owing by the Lender to or for the credit or the account of the Borrower against any and all of the Indebtedness of the Borrower now or hereafter existing under this Agreement and the Note, irrespective of whether demand under this Agreement or the Note shall have been made and although such Indebtedness may be unmatured. The Lender shall promptly notify the Borrower after any such set off and application; provided, however, that the failure to give such notice shall not affect the validity of such setoff and application. The rights of the Lender under this Section are in addition to other rights and remedies (including, without limitation, other rights of set - off) that such Persons may have at law, in equity or otherwise. 8.10 Headings. The article and section headings of this Agreement are for convenience of reference only and shall not constitute a part of the text hereof nor alter or otherwise affect the meaning or interpretation of any provision hereof. 8.11 Severability. The unenforceability or invalidity as determined by a Tribunal of competent jurisdiction, of any provision or provisions of this Agreement shall not render unenforceable or invalid any other provision or provisions hereof. 8.12 Survival. To the extent that any payments on the Indebtedness are subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, debtor-in-possession, receiver or other Person under any bankruptcy law, common law or equitable cause, then to such extent, the Indebtedness so satisfied shall be revived and continue as if such payment or proceeds had not been received and the Liens, security interests, rights, powers and remedies under this Agreement shall continue in full force and effect. Loan Agreement Page 13 8.13 NO ORAL AGREEMENTS. THE LOAN DOCUMENTS EMBODY THE ENTIRE AGREEMENT AND UNDERSTANDING BETWEEN THE PARTIES AND SUPERSEDE ALL OTHER AGREEMENTS AND UNDERSTANDINGS BETWEEN SUCH PARTIES RELATING TO THE SUBJECT MATTER HEREOF AND THEREOF THE LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. 8.14 Counterparts. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument and any of the parties hereto may execute this Agreement by signing any such counterpart. Delivery of an executed counterpart of a signature page to this Agreement by telecopier shall be as effective as delivery of a manually executed counterpart of this Agreement. 8.15 Amendments. No amendment or waiver of any provision of this Agreement, the Note, or any other Loan Document to which the Borrower is a party, nor any consent to any departure by the Borrower therefrom, shall in any event be effective unless the same shall be agreed or consented to by the Lender and the Borrower, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, that no amendment, waiver, or consent shall, unless in writing and signed by the Lender and the Borrower, do any of the following: (a) reduce the principal of, or interest on, the Note or any fees or other amounts payable hereunder; (b) postpone any date fixed for any payment of principal of, or interest on, the Note or any fees or other amounts payable hereunder; (c) change the percentage of the Commitment or of the aggregate unpaid principal amount of the Note; or (d) change any provision contained in this Section 8.15. 8.16 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. The Borrower may not assign or transfer any of its rights or obligations hereunder without the prior written consent of the Lender. Loan Agreement Page 14 IN WITNESS WHEREOF, the Borrower has caused this Agreement to be executed and delivered to the Lender, effective as of the day and year first above written by the undersigned duly authorized corporate officer of the Borrower. BORROWER: ISRAMCO, INC. By: Haim Tsuff, Chief Executive Officer LENDER: By: Name: ____________________________________ Title: _____________________________________ Loan Agreement Page 15
Exhibit 10.63 NAME OF TENANT: DETERMINE, INC. OFFICE BUILDING: CARMEL CORPORATE CENTER, BUILDING FOUR 615 WEST CARMEL DRIVE, SUITE 100, CARMEL, INDIANA 46032 TABLE OF CONTENTS Article Page No. Agreement of Lease; Use of Demised Premises - 1 - Preparation of Demised Premises for Occupancy - 1 - Term and Commencement Date - 2 - Base Rent - 3 - Rent Tax - 4 - Services and Utilities - 4 - Taxes and Operating Costs Escalation - 5 - Maintenance and Repairs - 8 - Alterations - 9 - Loss of or Damage to Tenant's Property - 10 - Personal Property Taxes - 10 - Workers' Compensation and Property Insurance; Mutual Waiver of Subrogation - 10 - Compliance with Laws and Insurance Policies - 11 - Hold Harmless - 11 - Liability Insurance - 12 - Rules and Regulations - 12 - Landlord's Access to Demised Premises - 12 - Assignment, Subletting, etc. - 13 - Involuntary Assignment - 15 - Default and Remedies - 16 - Landlord's Right to Cure Tenant's Default - 18 - No Waiver - 19 - Waiver of Trial by Jury - 19 - Attorney Fees - 19 - Quiet Enjoyment - 19 - Subordination - 20 - Damage by Fire or Other Casualty - 20 - Eminent Domain - 21 - Environmental Matters - 22 - Surrender of Premises; Holding Over - 23 - Notices - 23 - No Representations by Landlord - 24 - Recording - 24 - Real Estate Brokers - 24 - Name of Building or Project - 24 - Intentionally Deleted - 24 - Security Deposit - 25 - Miscellaneous - 25 - No Option to Lease - 26 - Addendum - 26 - Right of First Offer on Available Contiguous Space - 26 - Building Sign - 29 - This LEASE AGREEMENT is made and entered into as of the ________ day of __________, 2016, between ATAPCO CARMEL, INC., a Maryland corporation, having an office at One South Street, Suite 2800, Baltimore, Maryland 21202, hereinafter referred to as "Landlord," and DETERMINE, INC., a Delaware Corporation, having an office at 2121 South El Camino Real, 10th Floor, San Mateo, CA 94403, hereinafter referred to as "Tenant." RECITALS: A. Landlord is the owner of an office building with 35,641 rentable square feet hereinafter referred to as the "Building," the address of which is 615 West Carmel Drive, Carmel, Indiana 46032, and is currently known as Carmel Corporate Center, Building Four. The site on which the Building, its related improvements, and its accompanying parking are located is hereinafter referred to as the "Land." If the Building is part of a project, the project is hereinafter referred to as the "Project." B. Tenant desires to lease a portion of the Building from Landlord. NOW, THEREFORE, in consideration of the mutual covenants contained herein, Landlord and Tenant agree as follows: ARTICLE 1 1.01 Landlord hereby leases to Tenant and Tenant hereby hires from Landlord those certain premises in the Building identified or to be identified as Suite 100, hereinafter referred to as the "Demised Premises," the location of which is shown on the floor plan attached hereto as Exhibit "A" and by this reference made a part hereof, together with the nonexclusive right, in common with others, to the use of any common driveways, parking areas, entrance ways, lobbies, corridors, lavatories, elevators, ramps, stairs and similar access and service ways in and adjacent to the Building. During the term of this Lease Agreement, Landlord shall make available to Tenant, its officers, employees and invitees in common with the other tenants of the Building, free, unreserved, surface parking on the Land at a ratio of five (5) parking spaces per each one thousand (1,000) rentable square feet of space in the Building. The parties stipulate that the Demised Premises are deemed to contain eight thousand seven hundred ninety-five (8,795) rentable square feet (which includes a 15% common area factor), hereinafter referred to as the "Rentable Area of the Demised Premises." Landlord reserves from the Demised Premises space in the ceiling plenum, columns or other concealed areas for erecting, building, using and maintaining unexposed pipes, ducts, conduits, cables and wires leading to and from other parts of the Building. 1.02 The Demised Premises shall be used and occupied solely for general office use and ancillary uses related thereto and for no other purpose. ARTICLE 2 2.01 Except as otherwise provided in the Work Letter (hereinafter defined), Landlord, at its cost, shall prepare or renovate the Demised Premises for Tenant's occupancy in accordance with the work letter attached hereto as Exhibit "B" ("Work Letter") and the space plan ("Space Plan") attached hereto as Exhibit "B-1," both of which are made a part hereof by this reference ("Landlord Work"). Except for Landlord's Work, latent defects and Landlord's repair and maintenance obligations under this Lease, Tenant shall accept the Demised Premises "As-Is," and the cost of any additional improvements or other alterations which Tenant may make (in accordance with Section 9.01 of this Lease Agreement) shall be borne solely by Tenant. 2.02 Landlord warrants to Tenant that the work performed by Landlord or Landlord's contractors pursuant to Section 2.01 hereof will be free from defects in materials and workmanship. Landlord's obligation under this warranty shall be limited to replacing or correcting any such defects which are discovered within one (1) year after the Commencement Date (hereinafter defined) of this Lease Agreement, provided Tenant gives Landlord written notice of such defect within said one (1) year period. This limited warranty does not apply to damages and defects resulting from abuse, intentional acts or improper maintenance, operation or use of the Demised Premises by Tenant, its officers, agents, contractors, employees or invitees. The foregoing warranty is in lieu of all other warranties, express, implied or statutory, including warranties of merchantability and fitness for purpose. In no case will Landlord be liable for special, indirect or consequential damages, including interruption of Tenant's business or use or occupancy of the Demised Premises, and there shall be no abatement of Rent (hereinafter defined) on account of any such defects in material or workmanship. - 1 - 2.03 Landlord hereby permits Tenant to enter upon the Demised Premises prior to the Commencement Date for the purpose of moving or installing any of Tenant's furniture, equipment, fixtures, business machines or other personal property into or upon the Demised Premises, or for any other purposes approved by Landlord as long as such use does not interfere with Landlord's Work and during such earlier entry period, the provisions of Article 9 (Alterations), Article 10 (Loss of or Damage to Tenant's Property), Article 12 (Property Insurance; Mutual Waiver of Subrogation), Article 14 (Hold Harmless) and Article 15 (Liability Insurance) of this Lease Agreement shall apply and become effective as of the date of the first such entry by Tenant. ARTICLE 3 Term and Commencement Date 3.01 The term of this Lease Agreement is fifty-one (51) months; provided, however, that if the Commencement Date (hereinafter defined) occurs on a date other than the first day of a calendar month, the term of this Lease Agreement shall be extended by that partial month from the Commencement Date to the first day of the following calendar month. 3.02 The commencement date of the term of this Lease Agreement, herein referred to as the "Commencement Date," shall be the date when Landlord shall deliver the Demised Premises to Tenant with the Landlord’s Work substantially complete. Provided that (i) the building permit to permit construction of the Landlord’s Work has been issued on or before April 1, 2016, and (ii) the Tenant requests materials, components or finishes that are all in stock or available in a commercially reasonable time frame given the targeted Commencement Date of June 1, 2016, then if Landlord is unable to deliver possession of the Demised Premises to Tenant by June 1, 2016 with Landlord’s Work substantially completed, unless the delay in delivering the Demised Premises is due to a Tenant Delay, Tenant shall receive a Rent abatement equal to one day for each day after June 1, 2016 until the Commencement Date occurs. If the permit is issued after April 1, 2016, then any Rent abatement shall be delayed on a day-to-day basis for every day after April 1, 2016 until the permit is issued. As an example, if the building permit is issued on April 6, 2016, and the Commencement Date is June 8, 2016, then Tenant would be entitled to two (2) days of Rent abatement. For purposes of this Section, Landlord shall be deemed to have substantially completed Landlord's Work if all Landlord’s Work has been completed except punch list items which will not materially interfere with Tenant's use of the Demised Premises, and a certificate of occupancy has been issued. Notwithstanding the foregoing, the Commencement Date shall not be deferred beyond the date on which Landlord would have been able to deliver possession of the Demised Premises to Tenant but for any Tenant Delay (hereinafter defined). Immediately after the Commencement Date has been determined, Landlord and Tenant shall execute a Lease Commencement Certificate to confirm the Commencement Date. 3.03 Tenant Delay, as used herein, shall mean any delay or delays in the Commencement Date as a result of any one or more of the following: (a) Tenant's failure to furnish, approve or authorize any item reasonably requested by Landlord or required herein; (b) Tenant's delay or failure in submitting to Landlord any information, authorization or approvals reasonably requested by Landlord or required herein; (c) except as expressly allowed herein, Tenant's changes in or additions to any document previously submitted and/or approved by Tenant including but not limited to space plans, work letters and plans and specifications, as applicable (notwithstanding Landlord's approval of such changes); (d) the performance or completion of any work in the Demised Premises by Tenant or any person, firm or entity employed by Tenant; (e) Tenant's request for materials, components, finishes or improvements other than Landlord's Building Standard Tenant Improvements or which are not available in a commercially reasonable time frame given the targeted Commencement Date set forth in Section 3.02 above as long as Landlord has provided notice of this prior to Tenant making the selection; (f) Tenant's failure to pay, when due, any amounts required to be paid by Tenant pursuant hereto; (g) Tenant's request for additional bidding or rebidding of the cost of all or a portion of the work to be done by Landlord; (h) changes or postponements in the work to be done by Landlord requested by Tenant; (i) any error in the Space Plan, Work Letter or plans and specifications, as applicable, to be utilized by Landlord caused by Tenant, or its employees or agents; and (j) any other act or omission of Tenant, its agents or employees which causes a delay as set forth herein. Landlord shall use commercially reasonable efforts to notify Tenant as soon as it determines that any Tenant Delay has occurred. Tenant shall pay all costs and expenses incurred by Landlord that directly result from any Tenant Delay including, without limitation, any costs and expenses directly attributable to increases in the cost of labor and materials, within thirty (30) days after receipt of an invoice for same. Any non-Building Standard Tenant Improvements shall be identified prior to approval of the final Construction Drawings. Landlord shall note on the Construction Drawing or change order the non-Building Standard Tenant Improvements which are included therein, if any. - 2 - ARTICLE 4 Base Rent 4.01 The base rent ("Base Rent") for the Demised Premises over the term hereof shall be five hundred eighty-two thousand one hundred nineteen and 16/100 Dollars ($582,119.16) plus any additional Rent which may be due based on any partial month extension of this Lease Agreement as set forth in Section 3.01 hereof. Said Base Rent shall be payable without demand in monthly installments ("Monthly Base Rent") in advance on the first day of each calendar month during the term of this Lease Agreement in accordance with the following schedule: Lease Period Annual Rent Per Sq. Ft. Period Rent Monthly Base Rent First four (4) months $16.00 $46,906.68 $11,726.67 Next three (3) months $0.00 $0.00 $0.00 Next seven (7) months $16.00 $82,086.69 $11,726.67 Next twelve (12) months $16.35 $143,798.28 $11,983.19 Next twelve (12) months $16.70 $146,876.52 $12,239.71 Next thirteen (13) months $17.05 $162,450.99 $12,496.23 If the Commencement Date occurs on a day other than the first day of a calendar month, then the Monthly Base Rent for the partial month during which the Commencement Date occurs shall be the first Monthly Base Rent (other than any free rent) set forth in the foregoing rent schedule, prorated on the basis of the actual number of days in said month, and said rent schedule shall begin on the first day of the next calendar month. In the event that the term hereof expires or terminates on a day other than the last day of a calendar month, then the Monthly Base Rent for the month during which said expiration occurs shall be prorated on the basis of the actual number of days in said month. Notwithstanding the foregoing, the first installment of Monthly Base Rent payable hereunder shall be paid to Landlord at the time of execution of this Lease Agreement. 4.02 In addition to Monthly Base Rent, Tenant shall pay to Landlord, as additional rent, all other sums of money as shall become due from Tenant under this Lease Agreement (the "Additional Rent"). Said Base Rent, Monthly Base Rent and Additional Rent are herein sometimes referred to individually or collectively as the "Rent." Rent shall be payable, without any setoff or deduction whatsoever except as expressly provided for herein, in lawful money of the United States which shall be legal tender in payment of all debts and dues, public and private, at the time of payment, at Atapco Carmel, Inc. at One South Street, Suite 2800, Baltimore, Maryland, 21202; Attention: Accounting Department, or at such other address or by such other means as Landlord may from time to time hereafter designate in writing. If any installment of Monthly Base Rent or any additional Rent required to be paid by Tenant to Landlord hereunder is not paid within ten (10) days after the same becomes due and payable, Tenant shall pay Landlord, as additional rent, a late charge equal to five percent (5%) of the unpaid installment of Rent. In addition, any Rent not paid within ten (10) days after the same becomes due and payable shall accrue interest at the rate equal to The Wall Street Journal prime rate in effect from time to time plus three percent (3%), or the maximum contract rate of interest legally permitted to be charged Tenant, whichever is the lesser rate, from the date such Rent becomes due and payable to the date of payment thereof by Tenant. Such interest shall be deemed additional Rent payable hereunder. Acceptance of any Rent after it becomes due and payable shall not constitute a waiver of Landlord's right to charge Tenant interest thereon, and neither the notification of Tenant that Landlord intends to charge interest on late Rent nor the acceptance of any late Rent or any interest thereon shall constitute a waiver of Tenant's default with respect to the overdue amount, or prevent Landlord from exercising any of the other rights and remedies available to Landlord. - 3 - 4.03 The date Landlord or Landlord's Agent receives Rent from Tenant shall at all times be the date utilized by Landlord for purposes of determining the timeliness of Tenant's payment. However, in the event Landlord requests payment by Tenant of Rent to a "lockbox" or other depository in which checks are cashed or deposited by a bank or entity other than Landlord ("Landlord's Agent"), receipt of Rent by Landlord's Agent shall determine the timeliness of the payment. ARTICLE 5 Rent Tax 5.01 If any governmental authority imposes any tax measured by the amount of Rent paid, Tenant will pay or reimburse Landlord for such tax with each payment of Rent. Amounts collected by Landlord from Tenant for such tax shall not be included in Taxes (hereinafter defined) for purposes of calculating escalations pursuant to Article 7 hereof. ARTICLE 6 Services and Utilities 6.01 Landlord shall cause the Demised Premises to be kept clean in accordance with the "Cleaning Specifications" set forth in Exhibit "C" attached hereto and by this reference made a part hereof. 6.02 (a) Landlord shall furnish to the Demised Premises, during usual business hours on a year round basis, reasonable air conditioning, heating and ventilation. For the purposes hereof, "usual business hours" shall mean between the hours of Monday to Friday 8:00 A.M. to 6:00 P.M. and Saturday 8:00 A.M. to 1:00 P.M., except legal holidays. (b) If Tenant requests additional air conditioning for special purposes, not a part of general office use, or because of occupancy or electrical loads in excess of the Building standard as the same has been disclosed to Tenant, Landlord shall, with prior notice to Tenant, install new or additional air conditioning equipment, including, without limitation, a Liebert unit(s) or other equipment for the IT system or server room, additional air conditioning units, chillers, condensers, compressors, ducts and piping, if, in Landlord's reasonable judgment, the same will not cause damage or injury in the Building or create a dangerous or hazardous condition or entail excessive or unreasonable alterations, repairs or expense, or interfere with or disturb other tenants' available electrical loads. Tenant shall reimburse Landlord for the costs of installing and maintaining such new or additional air conditioning equipment as additional Rent, which shall be paid by Tenant within thirty (30) days after receipt of each of Landlord's invoices therefor. In addition, Landlord may charge Tenant for the actual costs incurred by it for the electricity to operate such equipment, which such charges shall be deemed additional Rent and paid by Tenant within thirty (30) days after receipt of each of Landlord's invoices therefor. If Tenant requires an additional electrical load, Landlord shall have the right, at Landlord's option: (i) to install and maintain an additional meter(s) at Tenant's expense to sub-meter the electricity consumed by such new or additional air conditioning equipment; or (ii) to install and maintain an additional meter(s) at Tenant's expense to enable the utility furnishing electricity to the Building to bill Tenant directly for such consumption. 6.03 Landlord shall furnish the electricity necessary for general illumination of the Demised Premises by the Building Standard overhead fluorescent lighting fixtures, and for the operation of 120 volt office machines and equipment generally found in a typical business office. In the event that Tenant (either prior to initial occupancy or at any time thereafter) installs or arranges for the installation of additional electrical fixtures beyond the Building Standard, or operates any electrical equipment, the aggregate load of which exceeds the Building Standard, which is four (4) watts per rentable square foot for the 120 volt convenience outlets, Landlord agrees, upon written request from Tenant, to install the necessary additional wiring and other electrical equipment and controls provided such installation will not, in Landlord's reasonable judgment, cause damage or injury to the Building or create a dangerous or hazardous condition, or entail excessive or unreasonable alteration, repairs or expense, or interfere with or disturb other tenants' available electricity. Tenant shall reimburse Landlord for the cost of such installation as additional Rent, which shall be paid by Tenant within thirty (30) days after receipt of Landlord's invoice therefor. In addition, Landlord may charge Tenant for the actual costs incurred by it in furnishing such additional electricity, which such charges shall be deemed additional Rent and paid by Tenant within thirty (30) days of receipt of each of Landlord's invoices therefor. Landlord shall have the right, at Landlord's option: (a) to install and maintain an additional meter(s) at Tenant's expense to sub-meter such additional electrical energy; or (b) to install and maintain an additional meter(s) at Tenant’s expense to enable the utility furnishing electricity to the Building to bill Tenant directly for such consumption and in such case, electricity shall not be included in Operating Costs except for that related to Common Areas. - 4 - 6.04 Landlord shall supply water for the Building's common lavatory facilities and for any plumbing fixtures existing in the Demised Premises on the Commencement Date. If Tenant requires water for any additional purpose, Landlord may charge Tenant for the actual costs of supplying such additional water, which such charges shall be deemed additional Rent and paid by Tenant within thirty (30) days of receipt of each of Landlord's invoices therefor. Landlord shall have the right, at Landlord's option: (a) to install and maintain an additional meter(s) to sub-meter such additional water usage; or (b) to install and maintain an additional meter(s) to enable the utility furnishing water to the Building to bill Tenant directly for such consumption and in such case, water shall not be included in Operating Costs except for that related to Common Areas. 6.05 Landlord reserves the right to stop services on the air conditioning, heating, ventilating, elevator (if applicable), plumbing and electrical systems when necessary by reason of accident or emergency, or for repairs, alterations, replacements or improvements, or any other cause whatsoever beyond the reasonable control of Landlord. Except in an emergency, Landlord shall provide notice not less than ten (10) days advance notice of such interruption, or a shorter period, if reasonable under the circumstances and shall perform all repairs in a manner which minimizes its impact on Tenant's operation to the extent commercially reasonable to do so. Landlord shall have no liability because of such interruptions to such services, and there shall be no abatement of Rent by reason thereof, except as otherwise expressly provided for in Section 6.07 hereof. However, Landlord agrees to use diligence to complete all such repairs, alterations, replacements or improvements as soon as practicable under the circumstances. 6.06 If, by reason of a strike, labor trouble, act of God or other cause beyond Landlord's and Tenant's reasonable control, as applicable, including, but not limited to, governmental preemption in connection with a national emergency, any rule, order or regulation of any governmental agency or public utility, or conditions of supply and demand which are affected by war (whether or not declared by Congress) or other emergency, Landlord and/or Tenant, as applicable, shall be unable to fulfill its obligations under this Lease Agreement (other than the obligation to pay rent or make any other required payment) or Landlord shall be unable to supply any service which Landlord is obligated to supply hereunder, then, with regard to Landlord's inability to perform this Lease Agreement, Tenant's obligation to pay Rent hereunder shall in no way be affected, impaired or excused, except as otherwise expressly provided for in Section 6.07 hereof and, with regard to Tenant's inability to perform, Tenant shall not be deemed to be in default and the Lease Agreement shall continue in full force and effect. Provided, however, the delay permitted to Landlord and Tenant under this Section shall be conditioned on the party seeking to exercise the same providing notice to the other party of such event and an estimate of the delay resulting, such notice to be provided within ten (10) days of the date when the event causing the delay first occurred. 6.07 In the event that the Demised Premises or any part thereof are rendered unusable for the purposes leased because any one or more of the utilities or services which Landlord is obligated to provide to the Demised Premises under this Lease Agreement are stopped or interrupted for any reason and the restoration of such utilities or services is within the reasonable control of Landlord, if such stoppage or interruption continues for a period of six (6) consecutive business days after written notice from Tenant to Landlord, and provided Tenant does not occupy the affected portion of the Demised Premises during such period, the Rent shall be ratably abated (based on the square footage of the portion of the Demised Premises rendered unusable) from the beginning of such stoppage or interruption to the earlier of the date on which such utilities or services are restored or the date Tenant reoccupies the affected portion of the Demised Premises for the conduct of its business therein. As used herein, "interrupted" shall mean that such utilities or services are provided in such a non-continuous manner that it is unreasonable to expect that Tenant can use the affected portion of the Demised Premises for the purposes leased. ARTICLE 7 7.01 "Taxes" shall mean (a) all real and personal property taxes, assessments (including, without limitation, assessments for public works, improvements or benefits, whether or not begun or completed prior to the commencement of the term of this Lease Agreement and whether or not completed within said term) and other governmental charges or levies of every kind, character and description whatsoever, which at any time have been or may be assessed, levied or imposed by any governmental authority upon or in respect of or which may become a lien on the Building or the Land, or upon any property of Landlord, real or personal, located in and used in connection with the Building or on the Land or which is used in connection with the operation of the Building or the Land; (b) any taxes which may be assessed, levied or imposed by any governmental authority in lieu of all or any part of such real or personal property taxes, assessments, charges or levies; (c) all business, license, use or other taxes which may be assessed, levied or imposed upon the Land, the Building or the personal property of Landlord on account of the leasing or use of the Land or Building for office use only and not related to a specific use of any tenant; and (d) all charges made by state or local governments for any services performed on or for the Land or the Building which are not included in "Operating Costs" under this Article. If the Land (together with the Building and all other improvements located thereon) is not separately assessed, Taxes shall mean an equitable proportion of the foregoing items for all the land and improvements included within the tax parcel assessed, such proportion to be determined by Landlord on the basis of such information as may be reasonably available. Taxes shall not include municipal, county, state or federal income or franchise taxes of Landlord, mortgage, stamp taxes or similar taxes related to the transfer or encumbering of the Building or Land. - 5 - 7.02 "Base Taxes" shall mean Taxes for calendar year 2016. 7.03 If Taxes for any calendar year during the term of this Lease Agreement are higher than Base Taxes, Tenant shall pay to Landlord as additional Rent twenty-four and 6,766/10,000 percent (24.6766%) of the amount by which Taxes for such calendar year exceed Base Taxes ("Tenant's Share of Taxes"). 7.04 On the first day of each calendar month during the calendar year in which the Commencement Date occurs, Tenant shall pay to Landlord an amount equal to one-twelfth (1/12th) of Landlord's good faith estimate of Tenant's Share of Taxes. Prior to the beginning of each calendar year after such initial calendar year, Landlord shall advise Tenant of Landlord's good faith estimate of Tenant's Share of Taxes for the following calendar year. On the first day of each calendar month during such calendar year, Tenant shall pay to Landlord an amount equal to one-twelfth (1/12th) of such estimated share. 7.05 (a) "Operating Costs" shall mean the aggregate of all costs actually paid or incurred by Landlord in the operation of the Building and the Land, including, but not limited to: snow removal; grass cutting; tree and landscape maintenance; repairing and restriping driveways and parking areas; the repair and maintenance of air conditioning equipment, heating equipment, plumbing equipment, life safety support systems, elevators, any other equipment, and wall, floor and window coverings; janitorial services (including rubbish removal); pest control; interior and exterior cleaning costs; supplies; property insurance; liability insurance; water, sewer, gas, electricity and steam; reasonable management, legal, accounting and engineering fees; costs incurred for energy management systems and fixtures, Building alterations, modifications or equipment installed in good faith to reduce Operating Costs, and repair and maintenance of the same, regardless of whether such costs are considered to be capital improvements under generally accepted accounting principles, which costs, including interest cost, shall be amortized on a straight line basis over the useful life of the item; Building alterations, modifications or equipment which are required to bring the Building into compliance with any governmental law, ordinance, rule or regulation that was not applicable to the Building as of the date of this Lease Agreement, which such costs, including interest cost, shall be amortized over the reasonable life of the item, which shall in no event extend beyond the remaining life of the Building; all compensation and related costs (including overtime, holiday and premium pay) actually paid or incurred to persons engaged in the direct operation and management of the Building and the Land, but excluding those at the level above building manager or its equivalent, including the cost of social security, unemployment and other payroll taxes, worker's compensation insurance, and employee benefits such as, but not limited to, vacations, pensions, group insurance and other fringe benefits; and all costs, charges, expenses, dues or assessments imposed on the Land or Building pursuant to any declarations, covenants, conditions, easements or restrictions recorded among the land records of the jurisdiction where the Building and Land are located. If any such costs are applicable to both the Building or the Land and other portions of the Project, Operating Costs shall include an equitable proportion of such costs, such proportion to be reasonably determined by Landlord on the basis of such information as may be reasonably available. It is understood and agreed that Operating Costs shall include both costs directly incurred and costs incurred under outside contracts and that this paragraph is for definitional purposes only and shall not impose any obligation upon Landlord to incur such expenses or provide such services. (b) Notwithstanding anything to the contrary in this Article 7, Operating Costs shall not include the following: (i) leasing and brokerage fees and commissions and other fees related to leasing, including advertising costs; (ii) architectural fees, engineering fees, and all other costs for tenant improvement work for Tenant or for other tenants of the Building; (iii) costs reimbursed to Landlord by insurance companies or third parties; (iv) except as specifically provided for in subsection 7.05(a) above, depreciation, amortization and interest payments; (v) except as specifically provided for in subsection 7.05(a) above, costs incurred for capital improvements of any nature; (vi) Landlord's general corporate overhead and administrative expenses; (vii) legal fees and other costs and expenses incurred in resolving disputes with tenants, collecting rent or otherwise enforcing leases of tenants of the Building, other than for the enforcement of the Rules and Regulations or incurred as part of the sale, financing or encumbering of the Land and/or the Building; (viii) amounts paid to any person, firm or corporation related or otherwise affiliated with Landlord, to the extent they exceed arms-length, competitive prices for the goods or services provided; (ix) the costs of goods and services which any tenant, including Tenant, reimburses Landlord for or pays directly to third parties, to the extent of such reimbursement or payment; (x) the costs of services provided to other tenants of the Building that are not provided or available to Tenant; (xi) the costs of management fees in excess of five percent (5%) of the gross revenues of the Building; (xii) rent under ground leases; (xiii) costs arising from the gross negligence or intentional misconduct of Landlord, including late fees from the failure to pay expenses when due (unless the delay is caused by a tenant); and (xiv) the costs of remediating any hazardous substance which arose prior to the Commencement Date, or which was due to Landlord's negligent acts or omissions, or was the result of migration onto the Land from off site, but only to the extent such remediation is required by applicable law. - 6 - (c) If the average occupancy of the Building is less than ninety percent (90%) of the rentable area of the Building during any calendar year, including the base calendar year specified in Section 7.06 hereof (if a calendar year is specified for determining Base Operating Costs), Landlord shall "gross up" the Operating Costs for that year to the amount that, in Landlord's reasonable good faith judgment, consistent with industry practices, would have been incurred had the average occupancy of the Building been ninety percent (90%) of the rentable area of the Building during that calendar year. 7.06 "Base Operating Costs" shall mean Operating Costs for calendar year 2016. 7.07 If Operating Costs for any calendar year during the term of this Lease Agreement are higher than Base Operating Costs, Tenant shall pay to Landlord as additional Rent twenty-four and 6,766/10,000 percent (24.6766%) of the amount by which Operating Costs for such calendar year exceed Base Operating Costs ("Tenant's Share of Operating Costs"). 7.08 On the first day of each calendar month during the calendar year in Operating Costs. Prior to the beginning of each calendar year after such initial calendar year, Landlord shall advise Tenant of Landlord's estimate of Tenant's Share of Operating Costs for the following calendar year. On the first day of each calendar month during such calendar year, Tenant shall pay to Landlord an amount equal to one-twelfth (1/12th) of such estimated share. 7.09 Within one hundred twenty (120) days after the end of every calendar year during the term of this Lease Agreement, Landlord shall determine any additional Rent payable by Tenant pursuant to this Article 7 for that calendar year, in excess of the monthly payments made by Tenant pursuant to this Article 7, and such additional Rent shall be payable by Tenant within thirty (30) days after receipt from Landlord of a statement of such excess amount due, which such statement shall include a breakdown into significant general expense categories, such as: taxes; general operating; cleaning; heating, ventilation and air conditioning; electrical; elevators; plumbing; general and administrative; utilities; insurance; and snow removal. Within one hundred twenty (120) days after the end of every calendar year during the term of this Lease Agreement, Landlord shall determine any excess of the monthly payments made by Tenant pursuant to this Article 7 over the amount of additional Rent payable by Tenant pursuant to the provisions of this Article 7 for that calendar year and such additional Rent shall, after determination of such excess by Landlord, be credited against the installments of Rent next becoming payable under this Lease Agreement, or, in the event that such determination is made after the expiration or other termination of this Lease Agreement, shall be paid to Tenant within thirty (30) days after such determination. 7.10 Tenant, at its expense, shall have the right to have its internal or independent auditors that are not being compensated on a contingency fee basis inspect Landlord's accounting records in support of any statement sent to it by Landlord pursuant to Article 7 hereof, during Landlord's regular business hours, at Landlord's real estate accounting office in Baltimore, Maryland or another location approved by Landlord in writing, at any time not later than ninety (90) days after it receives any such statement by giving Landlord at least ten (10) days' prior written notice of its desire to do so; however, neither the giving of such notice nor the disputing of the statement shall defer the time period specified in Section 7.09 above within which Tenant must pay the additional Rent as billed in the statement. Tenant shall: (a) provide Landlord with a copy of the results of such audit within fifteen (15) days after the audit is completed; (b) keep all information obtained through said audit, as well as any information regarding a compromise, settlement or adjustment reached between Landlord and Tenant, in strict confidence; and (c) indemnify, defend and hold Landlord harmless from and against all costs, damages, claims, liabilities, expenses, losses, court costs and attorney fees suffered by or claimed against Landlord, based in whole or in part upon the breach of said confidentiality agreement. The above confidentiality and indemnification agreement shall survive the expiration or termination of this Lease Agreement. In addition, Tenant acknowledges that as a condition precedent to its right to audit as set forth herein, Tenant's auditor must execute a confidentiality and indemnification agreement substantially similar to Tenant’s as set forth herein. In the event that as a result of the audit process it is determined that the statement provided in Section 7.09 is incorrect, any excess payments due by Landlord to Tenant shall be paid or applied as provided in Section 7.09, and if Landlord is found to have overcharged by 10% or more, Landlord shall reimburse Tenant for the reasonable costs of the audit. Landlord and Tenant agree that if Tenant shall fail to request the audit within the ninety (90) day period, the statement of the Landlord shall be deemed to be final and binding. - 7 - 7.11 Any additional Rent called for by this Article which is applicable to a period of less than a full calendar year shall be prorated on the basis of a 365 day year. 7.12 Nothing contained in this Article shall be interpreted at any time to reduce the Monthly Base Rent payable under this Lease Agreement below the amount specified in Article 4 hereof. 7.13 Tenant's obligation to pay any and all additional Rent under this Article and Landlord's and Tenant's obligations to make any adjustments referred to in this Article shall survive the expiration or termination of this Lease Agreement. ARTICLE 8 Maintenance and Repairs 8.01 Except for those repairs, restorations and replacements which Tenant is required to make pursuant to Section 8.03 hereof, Landlord shall maintain, repair and replace, as necessary, and keep in good order and condition, as applicable: (a) the heating, ventilating and air conditioning systems serving the Demised Premises and the common areas in the Building; (b) the plumbing, sprinkler and electrical lines and systems and other building mechanical and service systems serving the Demised Premises and the common areas in the Building; (c) the interior and exterior structure of the Building, including the roof, exterior walls, load bearing walls, demising walls, support beams, foundation, columns and exterior doors and windows; and (d) the common areas located within or adjacent to the Building, including any common driveways, parking areas, landscaping, entrance ways, lobbies, corridors, lavatories, elevators, ramps, stairs and similar access and service ways. Except for the foregoing, and as otherwise expressly provided in this Lease, Landlord shall have no obligation whatsoever to make any repairs to the Demised Premises or the Building. 8.02 Landlord, at its cost and expense, shall maintain, repair and replace, as necessary, and keep in good order and condition, the building standard lighting fixtures within the Demised Premises and the common areas, including ballasts, lamps and bulbs. 8.03 Tenant shall use the Demised Premises and the Building and the fixtures and appurtenances therein with care. Subject to Section 12.06, all damage to the Demised Premises, or to its fixtures, appurtenances and equipment, other than ordinary wear and tear and damage by fire or other insured casualty, caused by or resulting from Tenant's use, alterations, improvements, or occupation thereof or caused by or resulting from the negligence or improper conduct of Tenant, its officers, agents, employees or invitees, shall be promptly repaired, restored or replaced by Tenant at no cost to Landlord. Tenant shall, at its sole cost and expense, maintain, repair, replace and keep in good order and condition any additions, improvements or other alterations installed by Tenant. All the aforesaid repairs, restorations and replacements shall be in quality and class equal to the original work or installations and to the reasonable satisfaction of Landlord. If Tenant fails to make such repairs, restorations or replacements within thirty (30) days after Landlord notifies Tenant in writing to make them, the same may be made by Landlord at the expense of Tenant, and such expense shall be collectible as additional Rent which shall be paid by Tenant within thirty (30) days after receipt of Landlord's invoice therefor. 8.04 Tenant shall not place a load upon any floor of the Demised Premises that exceeds the lesser of (a) a combined dead and live load eighty (80) pounds per square foot (including partitioning loading) or (b) the maximum floor load per square foot allowed by law. Business machines and mechanical equipment shall be placed and maintained by Tenant at Tenant's expense, in settings sufficient, in Landlord's reasonable judgment, to absorb and prevent vibration, noise and annoyance. 8.05 There shall be no allowance to Tenant for any diminution of rental value and no liability on the part of Landlord by reason of inconvenience, annoyance or injury to business arising from the making of any repairs in or to the Building or the Demised Premises, or in or to the fixtures, appurtenances or equipment thereof, except as otherwise expressly provided for in Section 6.07 or elsewhere in this Lease Agreement. - 8 - ARTICLE 9 Alterations 9.01 Tenant shall not make any removals, additions, improvements or other alterations in or to the Demised Premises without Landlord's prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed as to non-structural removals, additions, improvements or other alterations, and which consent may be withheld in Landlord's sole and absolute discretion as to structural removals, additions, improvements and other alterations. Any such approved alterations shall be done at Tenant's sole cost and expense, in accordance with the applicable laws, ordinances, orders, rules and regulations of any public authority having jurisdiction over the Building, at such times and in such manner as Landlord may approve in writing by either (a) contractors retained by Tenant and approved by Landlord in writing not to be unreasonably withheld , or (b) Landlord with its own employees or through contractors retained by Landlord, in which event Tenant shall reimburse Landlord for all reasonable costs and expenses incurred in performing such work within thirty (30) days after receipt of Landlord's invoice therefor. In addition, whether the work is done by contractors retained by Tenant or directly by Landlord with its own employees or through contractors retained by Landlord, Tenant shall pay to Landlord, within thirty (30) days after receipt of Landlord's invoice therefor, such amount as Landlord reasonably determines to be appropriate as compensation for its supervision of the work, not to exceed 5% of the cost of the work. Tenant shall give Landlord not less than ten (10) days' prior written notice of the commencement of any such work by Tenant's contractors. Tenant shall require (a) its contractors, architects, and engineers to carry general liability insurance coverage, and (b) its architects and engineers to carry professional liability insurance coverage, each in an amount reasonably approved by Landlord, and to furnish to Landlord prior to the commencement of any work a certificate(s) evidencing such coverage and naming Landlord as an additional insured. Landlord's consent to alterations which Tenant may wish to make in or to the Demised Premises shall not be construed to mean that Landlord believes that such alterations comply with all applicable laws, ordinances, orders, rules and regulations of any public authority, as hereinabove required of Tenant. Notwithstanding the foregoing, Tenant shall be permitted to make minor cosmetic changes to the Demised Premises without Landlord's consent, but with advance notice to Landlord, so long as the cost of the same is not in excess of $50,000 annually in the aggregate, and the same does not affect the structure or exterior appearance of the Building and does not harm the building mechanical systems. 9.02 Any mechanic's lien filed against the Demised Premises, the Building or the Land for work done or materials or equipment furnished to or contracted for by Tenant shall be discharged or bonded by Tenant, at Tenant's expense, within forty (40) days after the date it is filed or the date Tenant is notified of such filing, whichever is later. If Tenant fails to so discharge or bond any such lien, Landlord may, with notice to Tenant, do so at Tenant's expense, and the amount expended by Landlord in so doing, together with all expenses, including attorneys' fees, incurred by Landlord in connection therewith, shall be collectible as additional Rent and shall be paid by Tenant within thirty (30) days after receipt of Landlord's invoice therefor. 9.03 All additions, improvements or other alterations which Tenant may make to the Demised Premises shall remain upon and be surrendered with the Demised Premises at the expiration or termination of this Lease Agreement. However, if Tenant shall make any such alterations in or to the Demised Premises without Landlord's written consent, or if Landlord when granting such consent reserves the right to require Tenant to remove such alterations and restore the Demised Premises at the expiration or termination of this Lease Agreement, then Landlord may elect, by giving Tenant written notice no later than thirty (30) days prior to the expiration or termination of this Lease Agreement, to require Tenant, at its expense, to remove such alterations and restore the Demised Premises by the termination of this Lease. If Tenant does not remove such alterations and restore the Demised Premises by the termination date, Landlord may recover the costs of such removal and restoration from Tenant. 9.04 All articles of personal property, equipment and all business and trade fixtures, wires, private telephone systems and lines, furniture and movable partitions owned, leased or installed by Tenant at its expense in the Demised Premises or in any telephone closet or other area of the Building, shall be and remain the property of Tenant and, subject to the provisions of Section 9.01 hereof, may be removed by Tenant at any time, provided that Tenant, at its expense, shall repair any damage to the Building caused by such removal or by the original installation. Tenant shall remove all of the aforedescribed property at the expiration or termination of this Lease Agreement, and Tenant shall, at its expense, repair any damage to the Building caused by such removal or by the original installation. If Tenant does not remove its property as aforesaid, not later than the date of expiration or termination of this Lease Agreement, such property shall be deemed abandoned and Landlord may, at its election, either retain such property as its own or remove and dispose of such property as it sees fit. If Landlord elects to remove and dispose of such property, Landlord may recover the costs of such removal and disposal from Tenant as additional Rent which shall be paid by Tenant within thirty (30) days after receipt of Landlord's invoice therefor. - 9 - ARTICLE 10 10.01 Subject to the provisions of Section 12.06 of this Lease Agreement, neither Landlord nor its officers, agents or employees shall be liable to Tenant for any loss of or damage to personal property of Tenant located in the Demised Premises or in any telephone closet or other area of the Building, resulting from theft, fire, explosion, steam, gas, electricity, water or moisture in or from any part of the Building, including its roof, walls, ceilings and floors, or from the pipes, appliances, or mechanical and electrical systems in the Building or from any other place or from any other cause, whether or not similar to the foregoing causes. 10.02 Tenant shall immediately notify Landlord verbally, and promptly thereafter in writing, in the event of any loss of or damage to the Building, the Demised Premises or Tenant's personal property resulting from any theft, fire, accident, occurrence or condition in, on or about the Demised Premises or the Building. ARTICLE 11 Personal Property Taxes 11.01 Tenant shall be liable for and shall pay or reimburse Landlord for any taxes levied against or attributable to any of Tenant's personal property. ARTICLE 12 12.01 Landlord shall obtain and maintain in effect at all times during the term of this Lease Agreement an "all risk" property insurance policy covering all risks of direct physical loss or damage to the Building, to the extent of their full replacement value, with a Loss of Rents endorsement. 12.02 Tenant, at Tenant's expense, shall obtain and maintain in effect at all times during the term of this Lease Agreement an "special form" insurance policy covering all risks of direct physical loss or damage to Tenant's personal property in the Demised Premises or in any telephone closet or other area of the Building, and to all of Tenant's additions, improvements or other alterations in or to the Demised Premises, to the extent of their full replacement value, with a Business Income endorsement. 12.03 Tenant, at Tenant's expense, shall obtain and maintain in effect during the Term of this Lease Agreement, workers' compensation insurance insuring against and satisfying Tenant's obligations and liabilities under the workers' compensation laws of the state in which the Demised Premises are located, which shall include a waiver of subrogation in favor of Landlord. 12.04 The insurance policy required to be obtained and maintained by Tenant under Section 12.02 hereof: (a) must be written as primary policy coverage and not contributing with or in excess of any coverage which Landlord may carry; (b) must provide that the policy may not be canceled unless Landlord shall have received at least ten (10) days' prior written notice of cancellation; and (c) must be issued by an insurance company having an A. M. Best Rating of A-, VII or better. The issuance of any such insurance policy shall not be deemed to limit or restrict in any way Tenant's liability or obligations arising under or out of this Lease Agreement. - 10 - 12.05 Tenant shall furnish Landlord with a certificate evidencing the insurance required to be obtained and maintained by Tenant under Sections 12.02 and 12.03 of this Article prior to the Commencement Date and not later than five (5) days prior to expiration of any policy. 12.06 Notwithstanding any other provision of this Lease Agreement, neither Landlord nor Tenant shall be liable to the other party or to any insurance company (by way of subrogation or otherwise) insuring the other party for any loss or damage to any building, structure or other tangible property, or any resulting loss of income or additional expense, even though such loss or damage might have been caused by the negligence of such party, its officers, employees, agents or contractors, if such loss or damage is covered by insurance benefitting the party suffering such loss or damage or was required to be covered by insurance pursuant to this Article. The foregoing waiver shall not apply if it would have the effect, but only to the extent of such effect, of invalidating any insurance coverage of Landlord or Tenant. Tenant agrees to cause all other occupants of the Demised Premises claiming by, under, or through Tenant to execute and deliver to Landlord such a waiver of claims. ARTICLE 13 13.01 In connection with its use and occupancy of the Demised Premises and the common areas in and adjacent to the Building, Tenant, at its expense, shall promptly comply with all applicable present and future federal, state and local laws, ordinances and regulations and with all orders and rules of governmental authorities having jurisdiction, including, without limitation, compliance with any law, ordinance or regulation that requires alterations by Landlord or Tenant to the Demised Premises or the Building because of Tenant's particular and specific use of the same. Tenant shall pay or reimburse Landlord for all costs, expenses, fines, penalties or damages which may be levied or imposed upon Landlord by reason of Tenant's failure to comply with the provisions of this Section. Landlord shall be responsible for violations of laws, ordinances and regulations if, the same (i) exist as a result of Landlord's acts or omissions, and (ii) occur prior to the Commencement Date. 13.02 Tenant shall not do, omit to do, or permit to be done any act or thing in, on or about the Demised Premises which will invalidate or be in conflict with any requirement, covenant or condition of any property insurance policy covering part or all of the Building or the fixtures and property therein, or which will subject Landlord to any uninsured liability to any person for bodily injury, death or property damage. Landlord warrants that general office use shall not cause a violation of this Section. 13.03 If, as a result of any act or omission by Tenant, or the presence in the Demised Premises or the Building of anything, equipment or improvements of Tenant, the premium rate for property or other insurance applicable to the Building shall be increased to an amount higher than it otherwise would be, Tenant shall reimburse Landlord for all increases of insurance premiums so caused. Such reimbursement shall be collectible as additional Rent which shall be paid by Tenant within thirty (30) days after receipt of Landlord's invoice therefor. If any increase in the Landlord's premium rate for property or other insurance applicable to the Building is stated by Landlord's insurance carrier or by the applicable Insurance Rating Bureau to be due to any act, omission, thing, equipment or improvements by or of Tenant, such statement shall be prima facie evidence that the increase in such rate is due to such act, omission, thing, equipment or improvements. ARTICLE 14 Hold Harmless 14.01 Tenant shall hold harmless and defend Landlord, its officers, agents and employees, at Tenant's sole cost with counsel reasonably satisfactory to Landlord, from and against any and all claims, damages, causes of action for damages, costs and expenses (including, without limitation attorneys' fees) on account of any injury to or death of any person or any loss of or damage to property occurring in, on or about the Demised Premises at any time during the term of this Lease Agreement, but not to the extent such injury, death, loss or damage is caused by the intentional misconduct or negligence of Landlord, its officers, agents or employees. 14.02 This Article 14 shall survive the expiration or termination of this Lease Agreement. - 11 - ARTICLE 15 Liability Insurance 15.01 Tenant, at Tenant's expense, shall obtain and maintain in effect at all times during the term of this Lease Agreement an ISO Commercial General Liability Coverage insurance policy, written on an occurrence basis (and not a "claims made" basis), with a combined single limit for bodily injury and property damage per occurrence of not less than Three Million Dollars ($3,000,000), insuring against all liability of Tenant, its agents and employees, arising out of and in connection with Tenant's use, occupancy or maintenance of the Demised Premises, and the performance by Tenant of the hold harmless provisions of Section 14.01 of this Lease Agreement. Such policy shall be endorsed to name Landlord as additional insured. If Tenant's insurance covers more than one (1) location, Tenant's policy shall be endorsed to stipulate a "per location" limit of not less than the above amount which applies separately to the Demised Premises. Tenant's liability insurance may be provided by a combination of primary and umbrella coverage held by Tenant provided all such policies are at least as broad in scope as the primary commercial general liability policy required above. No such insurance policy may provide for a deductible or self insured retention exceeding Ten Thousand Dollars ($10,000) without the prior written approval of Landlord, which approval shall not be unreasonably withheld. 15.02 The insurance policy required to be obtained and maintained by Tenant under Section 15.01 hereof: (a) must be written as primary policy coverage and better. Neither the issuance of any such insurance policy nor the minimum limits specified in Section 15.01 hereof shall be deemed to limit or restrict in any way Tenant's liability or obligations arising under or out of this Lease Agreement. 15.03 Tenant shall furnish Landlord with a certificate evidencing the insurance policy required to be obtained and maintained by Tenant under this Article prior to the Commencement Date and not later than five (5) days prior to expiration of any policy. Each such certificate shall be binding on the issuer thereof and may not prohibit Landlord from relying thereon. 15.04 Landlord shall obtain and maintain during the term of the Lease Agreement an ISO Commercial General Liability Coverage insurance policy written on an occurrence basis, with combined single limit coverage of not less than $3,000,000 and reasonable deductible. ARTICLE 16 Rules and Regulations 16.01 Tenant and Tenant's employees and agents shall comply with the Rules and Regulations set forth in Exhibit "D" attached hereto and by this reference made a part hereof, and such reasonable amendments thereto and such other and further reasonable Rules and Regulations as Landlord may from time to time adopt. Landlord shall give Tenant prior written notice of any such amendments or additional Rules or Regulations. If there is a conflict between the Rules and Regulations and any of the provisions of this Lease Agreement, the provisions of this Lease Agreement shall prevail. Nothing contained in this Lease Agreement shall be construed to impose upon Landlord any duty or obligation to enforce the Rules and Regulations against any other tenant of the Building, and Landlord shall not be liable to Tenant for violation of the same by any other tenant or its employees, agents or invitees. However, if and to the extent Landlord does attempt to enforce the Rules and Regulations, it shall do so uniformly with respect to all of the tenants of the Building. ARTICLE 17 17.01 Landlord and its employees, contractors, agents and authorized representatives shall have the right to enter the Demised Premises at any time during emergencies and to do any necessary or required cleaning or maintenance, and upon reasonable advance notice at all reasonable times for the purpose of inspecting the condition of the Demised Premises or for any other lawful purpose provided that advance notice as is reasonable under the circumstances shall be provided prior to entry for maintenance purposes that would affect Tenants' operations. - 12 - 17.02 If, at any time during the last month of the term of this Lease Agreement or any extension term, Tenant shall have removed all of Tenant's property from the Demised Premises, including the business and trade fixtures, private telephone systems and lines, cabinetwork, furniture and movable partitions which may be removed by Tenant pursuant to Section 9.04 hereof, Landlord may immediately enter and alter, renovate and decorate the Demised Premises, and such acts shall have no effect upon Tenant's remaining obligations under this Lease Agreement but Landlord shall indemnify and hold Tenant harmless from any loss claim or damage resulting from Landlord's acts. 17.03 If Tenant shall not be personally present to open and permit an entry into the Demised Premises at any time such an entry is permitted by this Article, Landlord or its employees, contractors, agents or authorized representatives may gain entry into the Demised Premises by use of a master key. 17.04 Landlord shall use all commercially reasonable efforts to conduct its activities in the Demised Premises in a manner that seeks to cause the least possible inconvenience, annoyance or disturbance to Tenant. However, Landlord shall not be liable in any manner for any inconvenience, annoyance, disturbance, loss of business, nuisance or other damage arising out of Landlord's entry (or the entry by Landlord's employees, contractors, agents or authorized representatives) into the Demised Premises pursuant to this Article, except for damage caused by the intentional misconduct or negligence of Landlord, its employees, agents or authorized representatives during any such entry as to which Landlord is not otherwise released pursuant to any other provision of the Lease. No act taken by Landlord or its employees, contractors, agents or authorized representatives pursuant to this Article shall be considered to constitute an eviction of Tenant in whole or in part, and Tenant shall not be entitled to an abatement or reduction of Rent as a result of any such entry by Landlord. ARTICLE 18 18.01 Tenant shall not directly or indirectly, voluntarily, by operation of law or otherwise, assign, transfer, mortgage or encumber this Lease Agreement, or sublet the Demised Premises or any part thereof, or suffer or permit the Demised Premises or any part thereof to be used or occupied by any other person or entity (the employees and agents of Tenant excepted), without the prior written consent of Landlord in each instance. Landlord and Tenant acknowledge, consent and agree, however, that the following are strictly prohibited: (a) any public advertising of the rate at which Tenant is willing to sublet the Demised Premises; (b) any sublease or assignment to an existing tenant or subtenant of space in the Building or the Project; and (c) any assignment of less than all of the Demised Premises. Any request for such consent shall be in writing and shall be accompanied by a true copy of any offer to take an assignment or sublease which Tenant may have received, as well as a copy of the proposed assignment or sublease, if one has been prepared; and Tenant shall furnish to Landlord all information reasonably requested by Landlord with respect to the reputation and financial responsibility and standing of the proposed assignee or subtenant, and the nature of the business to be conducted by the proposed assignee or subtenant in the Demised Premises. If Tenant is a partnership or limited liability company, a withdrawal or direct or indirect change (voluntary, involuntary, by operation of law or otherwise) of a partner (or partners) or member (or members) owning twenty five percent (25%) or more of the partnership or limited liability company, or the dissolution of the partnership or limited liability company; or if Tenant consists of more than one person, an assignment or transfer (voluntary, involuntary, by operation of law or otherwise) from one such person to the other(s); or if Tenant is a corporation (other than a corporation the outstanding voting stock of which is listed on a "national securities exchange", as defined in the Securities Exchange Act of 1934), any dissolution, merger, consolidation or other reorganization of Tenant; or any direct or indirect change in the ownership (voluntary, involuntary, by operation of law or otherwise) of fifty percent (50%) or more of the ownership interests from the ownership existing on the date of execution of this Lease Agreement; shall be deemed an assignment prohibited hereunder unless the prior written consent of Lease Agreement to the contrary, Landlord shall not be obligated to entertain or consider any request by Tenant to consent to any proposed assignment, subletting or other prohibited transaction regarding all or any portion of the Demised Premises unless each request by Tenant is accompanied by a nonrefundable fee payable to Landlord in the amount of One Thousand and No/100 Dollars ($1,000.00) to cover Landlord's administrative, legal and other costs and expenses incurred in processing each of Tenant's requests. Neither Tenant's payment nor Landlord's acceptance of the foregoing fee shall be construed to impose any obligation whatsoever upon Landlord to consent to Tenant's request. Notwithstanding the foregoing, in the event of an assignment of this Lease Agreement or the transfer of Tenant's ownership interest resulting from a merger, asset sale or stock/membership sale, then, so long as the requirements in Section 18.03 below are satisfied, Landlord's consent shall not be required, but Tenant shall provide advance notice to Landlord, together with an assumption agreement confirming the remaining entity will comply with the requirements of Section 18.03(b) below. - 13 - 18.02 If any such assignment or subletting provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or a lump sum payment for an assignment) in excess of the Rent and other charges due Landlord under this Lease Agreement (or in the case of a subletting of less than all of the Demised Premises, in excess of the pro rata portion of the Rent and other charges allocable to the portion of the Demised Premises proposed to be sublet), Tenant shall pay to Landlord, as Additional Rent, after deducting the actual and reasonable costs expended by Tenant with respect to the assignment or subletting, including brokerage commissions and tenant improvements, fifty percent (50%) of said excess immediately upon receipt by Tenant of each installment of said excess consideration. Landlord shall have the right at any time upon ten (10) days' prior written notice to Tenant to audit and inspect the books, records and accounts of Tenant to verify the amount of consideration due to Landlord hereunder so long as Landlord enters into a confidentiality agreement, as reasonably required by Tenant. In the event that the transfer of Tenant’s interest in the Lease Agreement is part of Tenant’s transfer of its ownership interest or all or a substantial part of its assets, only the consideration which is properly allocated to the Lease Agreement shall be deemed consideration for the Lease Agreement. 18.03 Landlord's consent to Tenant's request to assign this Lease Agreement, or sublet the Demised Premises or any part thereof, shall not be unreasonably withheld, but shall be strictly conditioned upon Tenant and/or its assignee or subtenant, as the case may be, at its or their sole expense, complying with any and all additional requirements of present or future laws which arise as a result of the assignment or subletting. In addition, as a condition precedent to Landlord's consent, Landlord may require that: (a) Tenant provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord's interest under this Lease Agreement will not be diminished or reduced by such assignment or subletting. Such evidence shall include, but need not be limited to, evidence respecting the relevant business experience, reputation, financial responsibility and status of the proposed assignee or subtenant; (b) the proposed assignment or subletting shall be evidenced by a written instrument in form and substance reasonably satisfactory to Landlord, executed by Tenant and the assignee or subtenant, and containing an undertaking by any assignee to assume, be bound by and perform all of the terms, covenants and conditions of this Lease Agreement to be done, kept and performed by Tenant, or an undertaking by any subtenant to be bound by all of the provisions of this Lease Agreement related to that part of the Demises Premises sublet; (c) at the time of the proposed assignment or subletting, Tenant shall not be in default under this Lease Agreement in any respect; and (d) if Tenant proposes to sublet less than all of the space in the Demised Premises, Tenant, at its sole cost and expense, shall (i) obtain and deliver to Landlord a certificate of occupancy for its subtenant from the governmental authority having jurisdiction over the Building, if required, and (ii) construct a demising wall and make such other improvements to the sublet space as may be required for the issuance of such certificate of occupancy; the foregoing shall not prohibit the subleasing of one or more individual offices in the Demised Premises without a demising wall being required, if permitted by applicable law. Tenant hereby agrees and acknowledges that each and all of the above conditions for the granting by Landlord of its consent to any subletting of the Demised Premises or any assignment of this Lease Agreement are reasonable and Landlord's imposition of such conditions shall under no circumstances impair or limit Landlord's rights and remedies under this Lease, at law or in equity. 18.04 Neither the consent by Landlord to any assignment, transfer, mortgage, encumbrance, subletting or use by others, nor the collection or acceptance of Rent by Landlord from any such assignee, transferee, subtenant, or occupant shall relieve Tenant from the further performance of the terms, conditions, covenants and obligations of this Lease Agreement, nor shall it relieve Tenant, its successors or assigns, or such assignees, transferees, subtenants or occupants, from the obligation to seek and obtain the prior written consent of Landlord to any further assignment, transfer, mortgage, encumbrance, subletting or use by others. In the event this Lease Agreement is assigned, transferred, mortgaged, or encumbered, or the Demised Premises are subleased or used by others as aforesaid, Landlord may consent to subsequent assignments, transfers, mortgages, encumbrances, sublettings or uses by others without notifying Tenant or its successors in interest and without obtaining the consent of Tenant or such successors. - 14 - 18.05 Tenant hereby irrevocably assigns to Landlord, as security for the performance of Tenant's obligations under this Lease Agreement, all rent from any subletting of all or any portion of the Demised Premises, and agrees that in the event of any default by Tenant, Landlord may collect such rent and apply it towards Tenant's obligations under this Lease Agreement. Tenant agrees to indemnify and defend Landlord against any and all liabilities which Landlord may incur as a result of any assignment or subletting by Tenant, unless said liability is the direct result of Landlord's negligence. 18.06 Landlord and its successors may freely sell, assign or otherwise transfer all or any portion of its interest under this Lease Agreement or in the Demised Premises or the Building, and in the event of any such sale, assignment or other transfer, the party originally executing this Lease Agreement as Landlord, and any successor of such party, shall, without further agreement between Landlord and Tenant or between Landlord and/or Tenant and the person who is the purchaser, assignee or other transferee of Landlord, be relieved of any and all of its obligations under this Lease Agreement thereafter accruing, and Tenant shall thereafter be bound to such purchaser, assignee or other transferee, as the case may be, with the same effect as though the latter had been the original Landlord hereunder; provided that the purchaser, assignee or other transferee assumes and agrees in writing to carry out all the obligations of Landlord hereunder first occurring after such purchase, assignment or other transfer. ARTICLE 19 Involuntary Assignment 19.01 No interest of Tenant in or under this Lease Agreement shall be assignable by operation of law (including, without limitation, the transfer of this Lease Agreement by testacy or intestacy) or by involuntary assignment. Each of the following acts shall be considered an involuntary assignment: (a) the making by Tenant of an assignment for the benefit of creditors, or Tenant's petitioning for or entering into any arrangement with Tenant's creditors to settle, compound or extend the time for payment of an obligation of Tenant; (b) the filing by Tenant of any petition for the commencement of any case, proceeding or other action under Title 11 of the United States Code or any successor statute thereto, or any other insolvency, reorganization, moratorium or other statute for the relief of, or relating to, debtors, including, without limitation, the filing by Tenant of any petition under Chapters 7, 11 or 13 of the Bankruptcy Code; (c) the filing against Tenant of an involuntary petition for the commencement of any case, proceeding or other action under said Title 11, successor or other statute and the failure of Tenant to secure a dismissal thereof within ten (10) days thereafter; (d) the appointment of a trustee or a receiver with authority to take possession of the Demised Premises, and the failure of Tenant to secure a dismissal or removal thereof within ten (10) days thereafter; or (e) the filing of a lien, recording of a judgment or issuance of a writ of attachment or execution against, or the seizure, purported seizure, execution or sale by or for any creditor of Tenant of Tenant's interest in this Lease Agreement or any other property whereby the Demised Premises shall be taken or occupied by someone other than Tenant, and the failure of Tenant to secure a dismissal, release or removal thereof within ten (10) days thereafter. 19.02 An assignment by operation of law or an involuntary assignment of any interest of Tenant in or under this Lease Agreement shall constitute a material default by Tenant, and Landlord shall have the right to pursue any or all of the remedies provided in Article 20 hereof, including, without limitation, the right, pursuant to Section 20.02(b) hereof, to terminate this Lease Agreement, in which case this Lease Agreement shall not be treated as an asset of Tenant. - 15 - ARTICLE 20 Default and Remedies 20.01 The occurrence of any one of the following shall constitute a default by Tenant under this Lease Agreement: (a) Tenant shall fail to pay any Rent or any other sum payable by Tenant hereunder when due, and such failure continues for more than five (5) days after Tenant receives written notice thereof from Landlord (provided, however, that the notice requirement contained in this subsection (a) is not in addition to any legal requirement that notice be given and may be satisfied by sending the notice required by any applicable law or statute); (b) Tenant shall attempt to assign, transfer, mortgage or encumber this Lease Agreement, or sublet the Demised Premises or any part thereof, or suffer or permit the Demised Premises or any part thereof to be used by others, in violation of Article 18 hereof; (c) there shall be an assignment by operation of law or an involuntary assignment (as defined in Section 19.01 hereof) of any interest of Tenant in or under this Lease Agreement; or (d) Tenant shall fail to perform or comply with any of the other covenants or conditions of this Lease Agreement, including the Rules and Regulations set forth in Exhibit "D," and such failure continues for more than thirty (30) days after Tenant receives written notice thereof from Landlord; provided, however, that if the failure to perform or comply cannot reasonably be corrected within thirty (30) days, Tenant shall not be in default if Tenant commences to correct the failure to perform or comply within said thirty (30) day period and diligently and in good faith continues to correct the same thereafter; or (e) any of the events, conditions or the like constituting an involuntary assignment by Tenant pursuant to Article 19 above occurs with respect to any guarantor of the Lease. 20.02 If Tenant commits a default under this Lease Agreement, Landlord shall have, in addition to any and all other rights and remedies which Landlord may have under this Lease Agreement or by law or in equity, the following remedies: (a) Landlord shall have the right, by written notice to Tenant, to declare this Lease terminated and the term ended, in which event Tenant shall vacate and surrender the Demised Premises but shall remain liable for all obligations arising during the balance of the stated term as if this Lease had remained in full force and effect. No act by Landlord allowed under this Section 20.02 shall terminate this Lease Agreement unless Landlord notifies Tenant in writing that Landlord elects to terminate this Lease. (b) Landlord can reenter the Demised Premises, remove all of Tenant's property therefrom and store the same in a public warehouse or elsewhere at the expense of and for the account of Tenant, and relet the Demised Premises, or any part thereof, to third parties for Tenant's account. Tenant shall be immediately liable to Landlord for all reasonable costs Landlord incurs by reason of its reentry, protecting or caring for the Demised Premises, or reletting or endeavoring to relet the Demised Premises, including, without limitation, attorneys' fees, brokers' commissions, expenses of remodeling which are necessary or desirable for the reletting, and like costs. (c) Landlord may relet all or any part of the Demised Premises. Reletting can be for a period shorter or longer than the remaining term of this Lease Agreement. Tenant shall pay to Landlord the Rent due under this Lease Agreement on the dates the Rent is due, less the rent Landlord receives from any reletting. (d) Landlord can terminate Tenant's right to possession of the Demised Premises at any time. No act by Landlord, other than giving notice to Tenant that its right to possession has been terminated, shall terminate this Lease Agreement. Acts of maintenance, repair or remodeling, efforts to relet the Demised Premises, or the appointment of a receiver on Landlord's initiative to protect Landlord's interest under this Lease Agreement shall not constitute a termination of Tenant's right to possession. (e) On termination of this Lease or Tenant's right to possession of the Demised Premises, Landlord shall have the right to recover from Tenant: (i) the worth, at the time of the award, of the unpaid Rent that had been earned at the time of termination of this Lease Agreement; (ii) the worth, at the time of the award, of the amount by which the unpaid Rent that would have been earned after the date of termination of this Lease Agreement to the time of the award exceeds the amount of such rental loss that Tenant proves could have been reasonably avoided; - 16 - (iii) would have been earned for the balance of the term of this Lease Agreement after could be reasonably avoided; (iv) the costs and expenses described in paragraph (a) above; (v) any other amount, including court costs and reasonable attorneys' fees, necessary to compensate Landlord for all detriment caused by Tenant's default; and (vi) at Landlord's election, such other amount, in addition to or in lieu of the foregoing, as may be permitted from time to time by applicable law. As used in subparagraphs (i) and (ii) of this paragraph, "the worth, at the time of the award," shall be computed by allowing interest at the rate of The Wall Street Journal prime rate in effect from time to time plus three percent (3%) or the maximum contract rate of interest legally permitted to be charged Tenant, whichever is the lesser rate. As used in subparagraph (iii) of this paragraph, "the worth, at the time of the award," shall be computed by discounting the amount at the discount rate at the time of the award of the Federal Reserve Bank serving the area in which the Demised Premises are located. 20.03 In the event of the exercise by Landlord of any one or more of its rights and remedies under this Article, Tenant hereby expressly waives any and all rights of redemption granted by or under any present or future laws. 20.04 Tenant hereby waives all claims and demands against Landlord for damages or loss arising out of or in connection with any reentering and taking possession of the Demised Premises as hereinabove permitted in this Article, and waives all claims and demands for damages or losses arising out of or in connection with any destruction of or damage to the Demised Premises or for any loss of property belonging to Tenant or to any other person, firm or corporation which may be in or upon the Demised Premises at the time of such reentry, except such damages or losses as are caused by the negligence or intentional misconduct of Landlord, its officers, agents or employees. 20.05 The various rights, options, elections, powers and remedies contained in this Article shall not be deemed to be exclusive; they are cumulative and in addition to any other remedies, rights or priorities contained elsewhere in this Lease Agreement or now or later allowed by law or in equity. 20.06 (a) Both Landlord and Tenant shall each use commercially reasonable efforts to mitigate any damages resulting from a default of the other party under this Lease Agreement. (b) Landlord's obligation to mitigate damages after a default by Tenant under this Lease Agreement shall be satisfied in full if Landlord undertakes to lease the Demised Premises to a prospective tenant (a "Prospective Tenant(s)") in accordance with the following criteria: (i) Landlord shall have no obligation to solicit or entertain negotiations with any Prospective Tenants for the Demised Premises until Landlord obtains full and complete possession of the Demised Premises including, without limitation, if required by law, the final and unappealable legal right to relet the Demised Premises free of any claim of Tenant. (ii) Landlord shall not be obligated to offer the Demised Premises to a Prospective Tenant when other premises in the Building or the Project suitable for that Prospective Tenant's use are (or soon will be) available. (iii) Landlord shall not be obligated to lease the Demised Premises to a Prospective Tenant for a rental less than the current fair market rental then prevailing for similar space in the Building (as determined by Landlord), nor shall Landlord be obligated to enter into a new lease under other terms and conditions that are unacceptable to Landlord under Landlord's then current leasing policies for comparable space in the Building. - 17 - (iv) Landlord shall not be obligated to enter into a lease with any Prospective Tenant whose use would: (A) violate any restriction, covenant or requirement contained in the lease of another tenant in the Building; (B) adversely affect the reputation of the Building; or (C) be incompatible with the operation of the Building as a first class building. (v) Tenant which does not have, in Landlord's reasonable opinion, sufficient financial resources or operating experience to operate its business in the Demised Premises in a first class manner. (vi) Landlord shall not be required to expend any amount of money to alter, remodel, or otherwise make the Demised Premises suitable for use by a Prospective Tenant unless: A. Tenant pays any such sum to Landlord in advance of Landlord's execution of a substitute lease with such Prospective Tenant (which payment shall not be in lieu of any damages or other sums to which Landlord may be entitled as a result of Tenant's default under this Lease Agreement); or B. Landlord, in Landlord's sole discretion, determines that any such expenditure is financially justified in connection with entering into a lease with the Prospective Tenant. (c) Upon compliance with the above criteria regarding the releasing of the Demised Premises after a default by Tenant, Landlord shall be deemed to have fully satisfied Landlord's obligation to mitigate damages under this Lease Agreement and under any applicable law or judicial ruling, and Tenant waives and releases, to the fullest extent legally permissible, any right to assert in any action by Landlord to enforce the terms of this Lease Agreement, any defense, counterclaim, or rights of setoff or recoupment respecting the mitigation of damages by Landlord, unless and to the extent Landlord maliciously or in bad faith fails to act in accordance with the requirements of the foregoing sections. (d) Tenant's right to seek damages from Landlord as a result of a default by Landlord under this Lease Agreement shall be conditioned on Tenant (i) providing Landlord with written notice of any default which specifies in detail the nature of same and allowing Landlord thirty (30) days to cure or commence to cure same, except in the case of an emergency, in which case Landlord's period to cure shall be such lesser period as is reasonable under the circumstances, and (ii) taking all actions reasonably required, under the circumstances, to minimize any loss or damage to Tenant's property or business, or to any of Tenant's officers, employees, agents, invitees, or other third parties that may be caused by any such default of Landlord. (e) Tenant agrees to look solely to Landlord's interest in the Land and Building and proceeds and awards related thereto for satisfaction of any claim against Landlord hereunder and not to any other property or assets of Landlord. ARTICLE 21 21.01 If Tenant shall default (as defined in Section 20.01 hereof) in the observance or performance of any covenant or condition on Tenant's part to be observed or performed under or in connection with this Lease Agreement, Landlord may, but without obligation so to do, immediately or at any time thereafter perform the same for the account of Tenant (but without waiving or curing Tenant's default), and if Landlord makes any expenditures or incurs any obligations for the payment of money in connection therewith, all such sums paid or obligations incurred by Landlord, plus a markup of ten percent (10%) of the amount thereof to cover overhead and administrative costs incurred by Landlord in connection therewith, shall be collectible by Landlord as additional Rent, which shall be paid by Tenant within thirty (30) days after receipt of Landlord's invoice therefor. - 18 - ARTICLE 22 No Waiver 22.01 No act or conduct of Landlord, its employees, agents or representatives, including, without limitation, the acceptance of the keys to the Demised Premises, shall constitute an acceptance of the surrender of the Demised Premises by Tenant before the expiration of the term of this Lease Agreement. Only a written notice from Landlord to Tenant shall constitute acceptance of the surrender of the Demised Premises and accomplish a termination of this Lease Agreement. 22.02 The failure of Landlord or Tenant to seek redress for violation of, or to insist upon the strict performance of, any covenant or condition of this Lease Agreement shall not be deemed a waiver by Landlord or Tenant of its right to such redress for a prior, concurrent or subsequent violation of the same or to subsequently insist upon strict performance of any other covenant or condition of this Lease Agreement. The receipt and acceptance by Landlord of Rent with knowledge of any preceding breach by Tenant of any covenant, term or condition of this Lease Agreement shall not be deemed a waiver of such breach. The failure of Landlord to enforce any of the Rules and Regulations set forth in Exhibit "D" hereto or hereafter adopted against Tenant or any other tenant in the Building shall not be deemed a waiver of any of said Rules and Regulations. No provision of this Lease Agreement and no default by Landlord or Tenant hereunder shall be deemed to have been waived by the other party unless such waiver is in writing and signed by the waiving party. 22.03 No payment by Tenant or receipt and acceptance by Landlord of a lesser amount than the Rent herein stipulated shall be deemed to be other than on account of the stipulated Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment of Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other right or remedy provided herein or at law or in equity. ARTICLE 23 23.01 Landlord and Tenant do hereby waive trial by jury in any action, proceeding or counterclaim brought by either of the parties hereto against the other on any matters whatsoever arising out of or in any way connected with this Lease Agreement, the relationship of Landlord and Tenant, or Tenant's use or occupancy of the Demised Premises. ARTICLE 24 Attorney Fees 24.01 In the event Tenant defaults hereunder and Landlord engages an attorney to collect rent or other charges due Landlord hereunder, to recover possession of the Demised Premises or to pursue any other rights and remedies available to Landlord by law or in equity, Tenant agrees to pay or reimburse Landlord for its reasonable attorneys' fees and related costs. In the event any action, suit or proceeding is commenced under or in connection with this Lease Agreement, or for recovery of possession of the Demised Premises, the losing party shall pay to the prevailing party, and the prevailing party shall be entitled to an award for, the reasonable amount of the attorneys' fees, court costs and other litigation expenses incurred by the prevailing party in connection with such action, suit or proceeding. ARTICLE 25 Quiet Enjoyment 25.01 Landlord covenants and agrees with Tenant that, conditioned upon Tenant's prompt payment of the Rent and observance and performance of all the terms, covenants and conditions of this Lease Agreement on Tenant's part to be observed and performed, Tenant may peaceably and quietly enjoy the Demised Premises in accordance with the provisions of this Lease Agreement without any interruption or disturbance from Landlord; subject to the operation and effect of any Mortgage (hereinafter defined) to which this Lease shall be subordinate (and the rights of the Mortgagee, as hereinafter defined, thereunder or with respect thereto). - 19 - ARTICLE 26 Subordination 26.01 This Lease Agreement shall, at the option of the Landlord or any Mortgagee, be subject and subordinate to the lien of each and every Mortgage which may now or hereafter affect the Land or the Building, to all advances made thereunder, and to all renewals, modifications, consolidations, replacements and extensions thereof; provided, however, that with respect to Mortgages which become a lien on the Land or the Building after the date on which this Lease Agreement is entered into, as a condition precedent to such subordination, each such Mortgage by its terms, or by separate agreement of the Mortgagee, shall provide that in case of a foreclosure of such Mortgage, for so long as Tenant shall not be in default under this Lease Agreement, there shall be no disturbance of the quiet use and occupancy of the Demised Premises by Tenant or the leasehold estate created by this Lease Agreement. The subordination of this Lease Agreement to any such Mortgage or Mortgages shall be self-operative and shall not require any further instrument of subordination but shall be subject to Tenant's rights of non-disturbance, as provided above. However, Tenant shall from time to time, within twenty (20) days after Landlord or any Mortgagee so requests in writing, execute, acknowledge and deliver to the requesting party, a certificate or instrument evidencing such subordination and non-disturbance. In addition, if requested in writing by any Mortgagee or purchaser at a foreclosure proceeding, Tenant shall, by execution of an agreement in recordable form, attorn to such Mortgagee or purchaser acquiring title to the Land or the Building and recognize such purchaser as the landlord hereunder for the unexpired balance of the term of this Lease Agreement. 26.02 If, in connection with the procurement, continuation, amendment or renewal of any Mortgage, the Mortgagee shall request reasonable modifications of this Lease Agreement as a condition of such financing, Tenant will not withhold its consent thereto provided that such modifications do not increase the obligations of Tenant under this Lease Agreement or adversely affect the rights of Tenant under this Lease Agreement. 26.03 As used herein, "Mortgage" shall mean any mortgage or deed of trust constituting a lien on the interest of Landlord in the Land or the Building, or any part thereof, and shall also include any ground, underlying or master lease pursuant to a sale and leaseback agreement whereby Landlord sells and simultaneously acquires a possessory interest under a lease from, or other agreement with, such transferee. "Mortgagee" shall mean the mortgagee, trustee or landlord under any such mortgage, deed of trust, or ground, underlying or master lease. 26.04 In the event Tenant, or Tenant's lender requests Landlord to waive (a) any Landlord's lien against Tenant's personal property, or (b) any rights of distraint for rent and execution against Tenant's personal property, Landlord will accommodate such request provided that Landlord's standard form of waiver is used and that any such request is accompanied by a non-refundable administrative fee in the amount of Two Hundred and Fifty and No/100 Dollars ($250.00) made payable to Landlord to cover Landlord's administrative and legal costs related thereto. ARTICLE 27 27.01 If the Demised Premises, the Building or any portion thereof shall be damaged by fire or other casualty, and if this Lease Agreement is not terminated as herein provided, Landlord shall proceed with reasonable diligence to repair the damage at its expense, except that any repairs made to Tenant's additions, improvements or other alterations to the Demised Premises, shall be made by (and at the expense of) Tenant, and the repair or replacement of any property which Tenant is entitled to remove pursuant to Section 9.04 hereof shall be the responsibility and at the expense of Tenant. Tenant shall not be entitled to compensation or damages on account of annoyance or inconvenience arising out of the making of the repairs which Landlord is required to make pursuant to this Section. 27.02 During such period as all or any portion of the Demised Premises are rendered untenantable as a result of a fire or other casualty, the Rent shall be ratably abated (based on square footage of the area affected) until the Demised Premises shall be once again wholly tenantable. However, notwithstanding the foregoing, there shall be no abatement in Rent if such fire or other casualty shall have been caused by the gross negligence or intentional misconduct of Tenant or its officers, agents, employees, invitees or the direct or indirect owners of any interests therein. Furthermore, in no event shall there be any abatement in Rent for any time required for repairs to additions, improvements or other alterations which are to be made at the expense of Tenant, or to repair or replace any property which Tenant is entitled to remove pursuant to Section 9.04 hereof. However, Tenant shall be permitted to make such repairs and replacements concurrently with Landlord's repairs, provided they do not interfere with Landlord's repair work. - 20 - 27.03 If the Demised Premises, the Building or any portion thereof shall be damaged by fire or other casualty so as to render the Demised Premises wholly untenantable, and if such damage shall be so great that the Demised Premises, with the exercise of reasonable diligence, cannot be made fit for occupancy within two hundred seventy (270) days from the happening thereof, then either Landlord or Tenant may elect to terminate this Lease Agreement effective as of the date of the occurrence of such damage by giving the other party written notice of such election within thirty (30) days after such date. If such damage occurs during the last year of the term of the Lease Agreement, including any extensions thereof, and if such damage shall be so great that the Demised Premises, with the exercise of reasonable diligence, cannot be made fit for occupancy within ninety (90) days of the happening thereof, then either Landlord or Tenant may elect to terminate this Lease Agreement effective as of the date of the occurrence of such damage by giving the other party written notice of such election within thirty (30) days after such date. In the event of any such termination, Tenant shall be given fifteen (15) days to remove its personal property from the Demised Premises, after which Tenant shall surrender the Demised Premises to Landlord and Landlord may reenter and take possession of the Demised Premises and remove Tenant and its personal property therefrom. Landlord and Tenant waive the provisions of any law that would dictate automatic termination or grant either of them an option to terminate in the event of damage or destruction. 27.04 If (i) the Building shall be damaged by fire or other casualty to the extent of thirty percent (30%) or more of the replacement cost thereof, whether or not the Demised Premises were rendered wholly untenantable by such damage, or (ii) Landlord is unable to rebuild any portion of the Building due to any inability to obtain any required governmental approval in connection therein, or (iii) all or any part of the Building (whether or not including all or any part of the Demised Premises) shall be damaged or destroyed at any time by the occurrence of any risk not insured under any fire and extended coverage insurance maintained by Landlord, or (iv) the amount of the net insurance proceeds paid or payable to Landlord (and free of all claims by Mortgagees and others and all costs of collection or otherwise) is not sufficient to pay fully the cost to repair and rebuild the Demised Premises and the balance of the Building; then, Landlord may elect not to repair or rebuild and may elect to terminate this Lease within ninety (90) days following the occurrence of such fire or other casualty upon written notice to Tenant during such 90-day period (upon which termination Landlord and Tenant shall, except as otherwise expressly provided herein to the contrary, have no further rights or obligations hereunder). The effective date of such a termination shall be the date specified in such notice by Landlord, which date shall be not less than thirty (30) nor more than sixty (60) days after the giving of such notice. Tenant shall surrender the Demised Premises to Landlord on or before the effective date of such a termination, after which date Landlord may reenter and take possession of the Demised Premises and remove Tenant and its personal property therefrom. 27.05 The determination of how long it will take, with the exercise of reasonable diligence, to make the Demised Premises fit for occupancy, or of whether or not the Building was damaged to the extent of thirty percent (30%) or more of the replacement cost thereof, shall be made at Landlord's expense by a reputable architect, contractor or other qualified consultant selected by Landlord and instructed to report its findings to Landlord and Tenant within twenty (20) days after the date of the occurrence of the damage. ARTICLE 28 Eminent Domain 28.01 If the whole of the Demised Premises shall be taken by eminent domain or disposed of under threat of an impending taking by eminent domain, by or to any public authority, this Lease Agreement shall cease and terminate one (1) day prior to the date legal title to the Demised Premises shall vest in such authority. 28.02 If only a portion of the Demised Premises is so taken or disposed of, or if such a taking or disposition of any portion of the Building or the Land materially interferes with Tenant's access to the Demised Premises or materially reduces the number of parking spaces available to tenants of the Building, Tenant may, at its option, terminate this Lease Agreement by giving written notice thereof to Landlord at any time prior to or within ten (10) days after the date legal title to that portion of the Demised Premises shall vest in the taking or acquiring authority, in which event this Lease Agreement shall cease and terminate one (1) day prior to the date legal title to that portion of the Demised Premises shall vest in such authority. - 21 - 28.03 If only a portion of the Demised Premises is so taken or disposed of and if Tenant does not exercise its option to terminate this Lease Agreement as provided for in Section 28.02 hereof, then, in such event: (a) this Lease Agreement shall continue in full force and effect as to the remaining portion of the Demised Premises; (b) Landlord, with reasonable promptness, and at its expense, shall make such repairs and alterations to the Demised Premises as are necessary to restore the same to an economic architectural unit, susceptible to the same type of use as that which was in effect immediately prior to the taking or disposition; and (c) the Base Rent and Monthly Base Rent payable during the remainder of the initial term and during any extension terms, and the percentage(s) set forth in Article 7 (Taxes and Operating Costs Escalation) of this Lease Agreement, shall be proportionately reduced, based on the ratio of the square footage of the Demised Premises after the taking or disposition to the square footage of the Demised Premises prior to the taking or disposition, as of the date legal title to that portion of the Demised Premises shall vest in the taking or acquiring authority. In no event, however, shall Landlord be obligated to expend for such repairs an amount in excess of the taking proceeds (net of all costs and expenses of collection or otherwise and free of any and all claims by Mortgagees and others) actually recovered as a result of such taking and Landlord shall have no obligation to repair, restore or replace any alterations, fixtures or signs made or installed by Tenant or any, floor coverings, furnishings, furniture, equipment, decorations or any other personal property of Tenant (the repair, restoration and replacement of which shall be the sole obligation of, and be promptly performed by, Tenant). 28.04 In any of the foregoing cases, Landlord shall be entitled to all compensation and awards arising out of or in connection with such taking or disposition, including any portion thereof attributable to the value of the leasehold estate, except that nothing herein contained shall be deemed to prevent Tenant from recovering from the taking or acquiring authority compensation for the taking of any personal property or fixtures belonging to it or for interruption or damage to its business or for moving or other expenses, to the extent any of the same are compensable by law. ARTICLE 29 Environmental Matters 29.01 As used in this Article, "Hazardous Substance" means any pollutant, contaminant, toxic or hazardous waste, dangerous substance, potentially dangerous substance, noxious substance, toxic substance, flammable, explosive, radioactive material, urea formaldehyde foam insulation, asbestos, PCBs, or any other substances the removal of which is required, or the manufacture, production, generation, use, maintenance, disposal, treatment, storage, transfer, handling or ownership of which is restricted, prohibited, regulated or penalized by any federal, state, county, or municipal statutes or laws now or at any time hereafter in effect, including but not limited to, the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. §§ 9601 et seq.), the Hazardous Materials Transportation Act (49 U.S.C. §§ 1801 et seq.), the Resource Conservation and Recovery Act (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.), the Toxic Substances Control Act, as amended (15 U.S.C. §§ 2601 et seq.), and the Occupational Safety and Health Act (29 U.S.C. §§ 651 et seq.), as these laws have been amended or supplemented. 29.02 Landlord represents to Tenant that to its actual knowledge, the Building and the Land do not contain any Hazardous Substance in violation of any applicable federal, state or local environmental laws, ordinances and regulations. 29.03 Tenant shall not use, or knowingly permit others to use the Demised Premises or any other part of the Building or the Land for the production, generation, manufacture, treatment, transportation, storage or disposal of any Hazardous Substance, except with the prior written consent of Landlord and in compliance with any and all applicable federal, state and local environmental laws, ordinances and regulations. Provided however, Tenant, without Landlord's prior written consent shall be allowed, in strict compliance with all laws, to utilize ordinary quantities of Hazardous Substances customarily used in general office use and in conformity with the use of the Demised Premises allowed herein (e.g., cleaning supplies, copier toner and similar items). Tenant shall immediately notify Landlord in writing of (a) any release or discharge by Tenant or any other occupant of the Demised Premises of a Hazardous Substance, or (b) any notice of violation or alleged violation of any law regarding any Hazardous Substance at the Building or the Land received by Tenant or any other occupant of the Demised Premises. - 22 - 29.04 Tenant shall indemnify, defend and hold harmless Landlord, its officers, agents and employees, from and against any and all claims, damages, expenses, penalties, liability and costs, resulting or arising from a breach of the covenant contained in Section 29.03 above. 29.05 The provisions of this Article shall survive the expiration or termination of this Lease Agreement. ARTICLE 30 Surrender of Premises; Holding Over 30.01 Tenant waives notice to quit possession of the Demised Premises at the expiration or termination of the term hereof. Upon the expiration or termination of the term hereof, Tenant shall: (a) quit and surrender the Demised Premises to Landlord, broom clean, in good order and condition, ordinary wear and tear and damage by fire or other insured casualty excepted; (b) if and to the extent required by Landlord in accordance with Section 9.03 hereof, remove alterations and restore the Demised Premises; and (c) remove from the Demised Premises the personal property which it is required to remove pursuant to Section 9.04 hereof and repair any damage to the Building caused by such removal. 30.02 If Tenant, with Landlord's written consent, remains in possession of the Demised Premises after the expiration or termination of the term hereof, this Lease Agreement shall be deemed to have been renewed on a month to month basis, terminable on thirty (30) days' notice given at any time by either party, and Tenant shall continue to pay to Landlord for each month or portion (on a pro rata basis) of a month that Tenant holds over, the Monthly Base Rent in effect for the month immediately preceding the expiration or other termination of the term hereof, plus all additional Rent which Tenant is required to pay under this Lease Agreement, and shall comply with all of the terms, covenants and conditions of this Lease Agreement throughout such renewal period. 30.03 If Tenant, without Landlord's written consent, remains in possession of the Demised Premises after the expiration or termination of the term hereof, Tenant shall be deemed in default hereof and Tenant shall pay to Landlord, for each month or portion (on a pro rata basis) of a month that Tenant holds over, one hundred twenty five percent (125%) of the Monthly Base Rent in effect for the month immediately preceding the expiration or other termination of the term Lease Agreement, without regard to any caps or limits which may have been in place during the term hereof, and shall comply with all of the terms, covenants and conditions of this Lease Agreement throughout the time Tenant holds over. In addition, Tenant shall indemnify and hold harmless Landlord from and against all damages resulting from Tenant's failure to quit and surrender the Demised Premises at the expiration or termination of the term hereof, including, without limitation, claims made by a succeeding tenant. Any sufferance by Landlord of such a holding over by Tenant shall not constitute a renewal of this Lease Agreement, or the exercise of any option to extend or renew, and Landlord may cause Tenant to be evicted at any time after the expiration or termination of the term hereof. Payment by Tenant and acceptance by Landlord of the above monies shall not be considered liquidated damages and Landlord shall be entitled to all legal or equitable damages allowed by law. ARTICLE 31 Notices 31.01 Any notice or communication which Landlord may desire or be required to give to Tenant shall be, sent by registered or certified mail, return receipt requested, or by Federal Express or any other nationally recognized overnight delivery service, addressed to Tenant at its address set forth in the introductory paragraph of this Lease Agreement, and with a copy to DETERMINE, INC, at 615 West Carmel Drive, Suite 100, Carmel, Indiana 46032, or at such other address as Tenant shall designate by written notice to Landlord. Any notice or communication which Tenant may desire or be required to give to Landlord shall be sent by registered or certified mail, return receipt delivery service, addressed to Landlord at its address set forth in the introductory paragraph of this Lease Agreement, with a copy to Landlord at its Management Office at ATAPCO CARMEL, INC. at 630 West Carmel Drive, Suite 135, Carmel, Indiana 46032, or at such other address or addresses as Landlord shall designate by written notice to Tenant. All notices sent by mail shall be deemed given on the date the return receipt is signed or delivery rejected by the addressee. Notice sent by Federal Express or any other nationally recognized overnight delivery service shall be deemed to have been duly given one (1) business day after delivery to the service prior to its deadline for overnight delivery. - 23 - ARTICLE 32 No Representations by Landlord 32.01 Tenant acknowledges that neither Landlord nor any of Landlord's agents, representatives, officers or employees has made any representations or promises with respect to the Building or the Demised Premises except as herein expressly set forth, and that it has not executed this Lease Agreement in reliance upon any representations or promises of Landlord or Landlord's agents, representatives, officers or employees with respect to the Building or the Demised Premises except as herein expressly set forth. Tenant acknowledges that neither Landlord nor its agents or employees have made any representations or warranties as to the suitability or fitness of the Demised Premises for the conduct of Tenant's business or for any other purpose, nor has Landlord or its agents or employees agreed to undertake any alterations or construct any improvements to the Demised Premises except as expressly provided in this Lease Agreement. ARTICLE 33 Recording 33.01 This Lease Agreement shall not be recorded. ARTICLE 34 Real Estate Brokers 34.01 Landlord and Tenant acknowledge that John Vandenbark of CBRE, INC. and Brian Askins of Colliers International, Inc. (the "Broker(s)"), acting as a licensed real estate broker(s), was/were instrumental in the consummation of this Lease Agreement. Landlord agrees to pay any commission that may be due the Broker(s). Landlord and Tenant each represent and warrant to each other that it has not had any dealing with any other real estate broker or finder with respect to the subject matter of this Lease Agreement, and agree to hold each other harmless from and against any and all damages, costs and expenses resulting from any claim(s) for a brokerage commission or finder's fee that may be asserted against either of them by any other broker or finder with whom the other has dealt. ARTICLE 35 Name of Building or Project 35.01 Landlord shall have the right at any time and from time to time during the term of the Lease Agreement, without liability to Tenant, to designate or change a name for the Building or the Project. ARTICLE 36 Intentionally Deleted - 24 - ARTICLE 37 Security Deposit 37.01 Upon execution of this Lease Agreement, Tenant shall deposit with Landlord the sum of thirty-five thousand one hundred eighty and 00/100 Dollars ($35,180.00) of which eleven thousand seven hundred twenty-six and 67/100 Dollars ($11,726.67) shall be applied to the September 2017 base rent, which will reduce the security deposit sum to twenty-three thousand four hundred fifty-three and 33/100 Dollars ($23,453.33) for the remainder of the Lease term, as security for the full performance of every provision of this Lease Agreement to be performed by Tenant. If Tenant defaults with respect to any provision of this Lease Agreement, including, but not limited to, the provisions relating to the payment of Rent, Landlord may (but shall not be required to) use, apply or retain all or any part of this security deposit for the payment of any Rent or any other sum in default, or for the payment of any other amount which Landlord may spend or become obligated to spend by reason of Tenant's default, or to compensate Landlord for any other loss, cost or damage which Landlord may spend or become obligated to spend by reason of Tenant's default, or to compensate Landlord for any other loss, cost or damage which Landlord may suffer by reason of Tenant's default. If any portion of said deposit is so used or applied, Tenant shall, within five (5) days after written demand therefor, deposit cash with Landlord in an amount sufficient to restore the security deposit to its original amount, and Tenant's failure to do so shall be a breach of this Lease Agreement. Landlord shall not be required to keep this security deposit separate from its general funds, and Tenant shall not be entitled to interest on such deposit. Landlord's obligations with respect to the security deposit are those of a debtor and not a trustee. At the expiration or termination of this Lease Agreement, the security deposit or any balance thereof shall be returned to Tenant within thirty (30) days following Tenant's vacation and surrender of the Demised Premises and performance of all of the covenants to be performed by Tenant hereunder, including, without limitation, the payment of Taxes and Operating Costs escalation accruing through the expiration or termination date of this Lease Agreement, less any sums withheld by Landlord to cure any existing default by Tenant. In the event Landlord sells, assigns or otherwise transfers all or any portion of its interest under this Lease Agreement or in the Demised Premises or the Building, Landlord may transfer said security deposit to the person who is the purchaser, assignee or other transferee of Landlord, and upon such transfer Landlord shall be discharged from any further liability with respect to said security deposit. ARTICLE 38 Miscellaneous 38.01 Words of any gender used herein shall include any other gender, and singular words include the plural, and vice versa, and "person" includes persons, firms and corporations and all other types of entities and organizations, unless in each case the sense otherwise requires. The term "Landlord" as used herein shall mean only the Owner of the Demised Premises at the relevant time. 38.02 Tenant, at any time and from time to time, at the written request of Landlord, shall promptly execute, acknowledge and deliver to Landlord a certificate certifying (a) that this Lease Agreement is unmodified and in full force and effect (or, if there have been modifications, that the same is in full force and effect as modified and stating the modifications); (b) that to the best of Tenant's knowledge there are not then existing any offsets or defenses against the enforcement of any provision of this Lease Agreement except as therein specified; (c) the amount of the Base Rent and the Monthly Base Rent; (d) the dates, if any, to which the Rent or other charges have been paid in advance; (e) the amount of any security deposit being held by Landlord; and (f) any other matters that Landlord or any Mortgagee may reasonably require to be confirmed. Any such certificate may be relied upon by a prospective purchaser, or Mortgagee of all or any portion of the Demised Premises, the Building or the Land. 38.03 Time is of the essence of the notice requirements and the obligations of the parties under this Lease Agreement. 38.04 If there are any covenants yet to be performed by Landlord or Tenant as of the date of expiration or termination of the term hereof, including, without limitation, the payment of Taxes and Operating Costs escalation and other Rent accruing under this Lease Agreement as of such date, such covenants shall survive the expiration or termination of the term hereof whether or not they are then known or determined. 38.05 This Lease Agreement contains the entire agreement between the parties hereto with respect to the subject matter hereof, and any purported agreement hereafter made shall be ineffective to change, modify, discharge or effect an abandonment of it in whole or in part unless such purported agreement is in writing and signed by the party against whom enforcement is sought. 38.06 If there is more than one Tenant, the obligations herein imposed on Tenant shall be joint and several. - 25 - 38.07 This Lease Agreement shall be governed and interpreted in accordance with the laws of the state in which the Demised Premises are located. 38.08 The unenforceability, invalidity or illegality of any provision of this Lease Agreement shall not render the other provisions unenforceable, invalid or illegal. 38.09 If Tenant is a corporation, limited liability corporation, limited liability partnership or other similar form of entity (the "Entity"), the individual executing this Lease Agreement on behalf of said Entity represents and warrants to Landlord that he or she is duly authorized to execute and deliver this Lease Agreement on behalf of said Entity, that the Entity is qualified to do business in the state where the Building is located, and that this Lease Agreement, including but not limited to the indemnifications set forth herein from Tenant to Landlord, are binding upon said Entity. The individual executing this Lease Agreement on behalf of Landlord represents and warrants to Tenant that he or she is duly authorized to execute and deliver this Lease Agreement on behalf of Landlord, that Landlord is qualified to do business in the state where the Building is located, and that this Lease Agreement, including but not limited to the indemnifications set forth herein from Landlord to Tenant, are binding upon Landlord. 38.10 Tenant, at any time and from time to time, at the written request of Landlord, shall furnish Landlord with financial statements of Tenant in form and content reasonably satisfactory to Landlord. 38.11 The covenants, conditions and agreements contained in this Lease Agreement shall bind and inure to the benefit of Landlord and Tenant and, except as otherwise provided in this Lease Agreement, their respective successors and assigns. 38.12 The Article headings are inserted only as a matter of convenience and reference and in no way define, limit or describe the scope of any Article of this Lease Agreement nor the intent of any of its provisions. 38.13 Landlord and Tenant acknowledge that each of them and their counsel have had an opportunity to review this Lease and that this Lease will not be construed against Landlord merely because Landlord's counsel has prepared it. 38.14 This Agreement may be executed in multiple counterparts each of which said executed counterparts shall be deemed an original for all purposes. ARTICLE 39 No Option to Lease 39.01 The submission of this Lease Agreement to Tenant for examination does not constitute a reservation of or option for the Demised Premises. This Lease Agreement shall be effective and binding as a lease only upon execution and delivery thereof by both Landlord and Tenant. ARTICLE 40 Addendum 40.01 The Addendum, if any, attached hereto is hereby made an integral part ARTICLE 41 Right of First Offer on Available Contiguous Space 41.01 There is three thousand four hundred twenty-eight (3,428) rentable square feet of space on the first (1st) floor of the Building (the "Available Contiguous Space"), the location of which is shown on the floor plan attached to this Lease Agreement as Exhibit "A," which is currently available for leasing. Throughout the initial Term of this Lease Agreement, provided Tenant is not in default of this Lease Agreement and except as otherwise provided herein, Landlord shall not commence substantive negotiations with any third party to enter into a lease for all or any portion of the Available Contiguous Space without first offering it to Tenant in accordance with this Article. The provisions of this Article shall be operative each time, in Landlord's reasonable judgement, a third party has expressed a bona fide interest in leasing all or any portion of the Available Contiguous Space. - 26 - 41.02 Notwithstanding anything in this Article to the contrary, during the last six (6) months of the initial Term of this Lease Agreement, Landlord shall be free to lease all or any portion of the Available Contiguous Space to one or more third parties without having to first offer it to Tenant. In addition, notwithstanding anything in this Article to the contrary, Landlord may extend the term of its lease with any future tenant of all or any portion of the Available Contiguous Space without having to again offer such space to Tenant. 41.03 If at any time and each time during the initial Term of this Lease Agreement, a third party, in Landlord's reasonable judgment, has expressed a bona fide interest in leasing all or any portion of the Available Contiguous Space, and if Landlord desires to lease the same to such third party, prior to commencing substantive negotiations with such third party Landlord, if required herein, shall notify Tenant thereof in writing, identifying the space the third party has expressed an interest in leasing (the "Additional Space"). Tenant shall have five (5) business days after receipt of Landlord's notice within which to notify Landlord in writing whether or not it wants to lease the Additional Space. Time is agreed to be of the essence with respect to this response time. If Landlord does not receive an affirmative written response from Tenant within five (5) business days after Tenant receives the aforementioned written notice from Landlord, Landlord shall be free to lease the Additional Space to such third party. 41.04 (a) Not later than fifteen (15) days after it has notified Landlord in writing that it wants to lease the Available Contiguous Space, Tenant shall submit to Landlord a space plan for the Available Contiguous Space Premises that: (a) is in conformity with all applicable building codes and ordinances; (b) in Landlord's reasonable opinion, does not create any aesthetic or other conflict with the design and function of the Building; and (c) has been approved by Tenant (the "Space Plan"). (b) In the event Landlord's architect prepares architectural, electrical and/or mechanical plans and specifications ("Plans and Specifications") based upon the Space Plan, Tenant must approve or object to same as follows: (i) No later than three (3) business days after Landlord has delivered the Plans and Specifications to Tenant, Tenant shall either approve the same in writing or, if Tenant has reasonable objections thereto, deliver to Landlord a detailed written description of Tenant's objections. (ii) Thereafter, until such Plans and Specifications are approved, Tenant shall work diligently and in a reasonable, cooperative and good faith manner with Landlord and its architect or other agent to arrive at acceptable Plans and Specifications. (iii) Tenant shall respond in writing to all revisions to the Plans and Specifications within three (3) business days after receiving them. If Tenant fails to strictly abide by the time limits set forth herein or fails to act in a reasonable, cooperative and good faith manner as set forth above, it shall be deemed to be an act of Tenant Delay (as defined below). (c) Landlord shall prepare or renovate the Available Contiguous Space Premises for Tenant's occupancy (the "Additional Space Tenant Improvements") in accordance with the Space Plan and (if applicable) the Plans and Specifications. The cost of all such work up to a maximum of thirty-one and 00/100 Cents ($0.31) per rentable square foot of the Additional Space times the number of months remaining in the initial Term of this Lease Agreement after the Effective Date as of which the Available Contiguous Space is added to the Demised Premises (the "Additional Space Allowance") shall be borne by Landlord. - 27 - (d) The Additional Space Allowance shall be applied by Landlord against the costs of designing, planning and constructing the Additional Space Tenant Improvements. In the event the costs incurred in connection with the design, planning and construction of the Available Contiguous Space Tenant Improvements exceed the Additional Space Allowance, Tenant shall be responsible for bearing and paying such excess costs (the "Additional Space Excess Costs"), as follows: (i) Tenant shall pay to Landlord, prior to the commencement of construction of the Additional Space Tenant Improvements, an amount equal to fifty percent (50%) of such Additional Space Excess Costs (as then estimated by Landlord). (ii) After substantial completion of the Additional Space Tenant Improvements but prior to occupancy of the Additional Space by Tenant, Tenant shall pay to Landlord an amount equal to ninety percent (90%) of the Additional Space Excess Costs (as then estimated by Landlord), less payments received by Landlord pursuant to (i) above. (iii) As soon as the final accounting is prepared and submitted by Landlord to Tenant, Tenant shall pay to Landlord the entire unpaid balance of the actual Additional Space Excess Costs based on the final costs to Landlord within thirty (30) days The Additional Space Excess Costs (if any) payable by Tenant under this Section shall constitute additional Rent due hereunder at the time specified herein. Landlord agrees to work diligently and in good faith to complete the Additional Space Tenant Improvements in an economical and cost-efficient manner and to use contractors who have either bid for such work or are known to provide bids at a competitive rate. (e) Except as otherwise provided above in this Section, all installations and improvements now or hereafter placed on or in the Additional Space shall be for Tenant's account and at Tenant's cost. 41.05 Landlord warrants to Tenant that the work performed by Landlord or Landlord's contractors pursuant to Section 41.04 hereof will be free from defects in materials and workmanship. Landlord's obligation under this warranty shall be limited to replacing or correcting any such defects which are discovered within one (1) year after the Effective Date (hereinafter defined), provided Tenant gives Landlord written notice of such defect within said one (1) year period. This limited warranty does not apply to damages and defects resulting from abuse, intentional acts or improper maintenance, operation or use of the Additional Space by Tenant, its officers, agents, contractors, employees or invitees. The foregoing warranty is in lieu of all other warranties, express, implied or statutory, including warranties of merchantability and fitness for purpose. In no case will Landlord be liable for special, indirect or consequential damages, including interruption of Tenant's business or use or occupancy of the Additional Space, and there shall be no abatement of Rent (hereinafter defined) on account of any such defects in material or workmanship. 41.06 In the event Landlord permits Tenant to enter upon the Additional Space prior to the Effective Date for the purpose of moving or installing any of Tenant's furniture, equipment, fixtures, business machines or other personal property into or upon the Additional Space, or for any other purposes, the provisions of Article 9 (Alterations), Article 10 (Loss of or Damage to Tenant's Property), Article 12 (Workers' Compensation and Property Insurance; Mutual 41.07 The Additional Space shall be added to the Demised Premises under this Lease Agreement for the balance of the initial Term hereof, effective as of the earlier of: (a) the date when Tenant shall take possession of and occupy the Additional Space for purposes other than as set forth in Section 41.06 hereof; or (b) five (5) days after Landlord notifies Tenant in writing that the Additional Space Tenant Improvements have been substantially completed (the "Effective Date"). For purposes of this Section, Landlord shall be deemed to have substantially completed the Additional Space Tenant Improvements even though there may remain to be done punch list items which will not materially interfere with Tenant's use of the Additional Space. Notwithstanding the foregoing, the Effective Date shall not be deferred beyond the date on which Landlord would have been able to deliver possession of the Additional Space to Effective Date has been determined, Landlord and Tenant shall execute an Effective Date Certificate to confirm the Effective Date. 41.08 As of the Effective Date, Exhibit "A" and the description and size of the Demised Premises set forth in Section 1.01 of this Lease Agreement shall be amended to reflect the addition of the Additional Space to the Demised Premises. 41.09 The annual base rent for the Additional Space over the balance of the initial Term of this Lease Agreement shall be the same annual rent per rentable square foot that is payable with respect to the original Demised Premises over such period. As of the Effective Date, Section 4.01 (Base Rent) of this Lease Agreement shall be amended to reflect the addition of the Additional Space to the Demised Premises. - 28 - 41.10 As of the Effective Date, the percentage set forth in Sections 7.03 and 7.07 (Taxes and Operating Costs Escalation) of this Lease Agreement shall be increased to reflect the addition of the Additional Space to the Demised Premises. 41.11 If and each time all or any portion of the Available Contiguous Space is leased by Tenant, Landlord shall prepare and Landlord and Tenant shall execute an appropriate amendment to this Lease Agreement for the purpose of adding such space to the Demised Premises. 41.12 Landlord shall not be obligated to lease only a portion of the Available Space to Tenant unless the remaining portion will be in compliance with all applicable codes and will be of a size and configuration that will not, in Landlord's reasonable judgment, substantially impede its leaseability. 41.13 This Article shall be personal to the original Tenant under this Lease Agreement named Determine, Inc., or to entities under the control of, under common control with, or controlled by Determine, Inc., or the successor by sale or merger to Determine, Inc., and shall be immediately null and void and of no effect if such original Tenant assigns this Lease Agreement with or without Landlord's consent in accordance with Article 18 hereof. ARTICLE 42 Building Sign 42.01 Subject to the requirements or restrictions of any applicable zoning codes and ordinances, the approval of the appropriate governmental authority, if required, and the approval of Landlord as to the size, location, appearance and method of attachment, which approval shall not be unreasonably withheld or delayed, for so long as Tenant shall lease the original Demised Premises, Tenant shall have the right to install and maintain, at its sole cost and expense, a sign identifying its company name and/or logo on an exterior wall of the Building. Tenant shall pay all fees and obtain all governmental waivers, variances, permits and approvals that may be required for the installation of such a sign. Tenant shall maintain the condition and appearance of such sign in compliance with all laws, ordinances and governmental orders, and to the complete satisfaction of Landlord. Any approved structural or electrical modifications or additions to the Building made necessary by the installation of such sign shall be paid for by Tenant. If such sign is illuminated, Tenant shall pay directly or reimburse Landlord for the cost of electricity to illuminate the sign. If at any time during the term of this Lease Agreement, including any extensions thereof, Tenant shall be leasing the original Demised Premises, Tenant shall, within thirty (30) days after receipt of a written request from Landlord to do so, remove any such sign and restore the affected portion of the Building to the same condition and appearance as existed prior to the installation of the sign. Otherwise, Tenant shall remove any such sign and restore the affected portion of the Building as aforesaid at the expiration or sooner termination of this Lease Agreement. (INTENTIONALLY LEFT BLANK) - 29 - IN WITNESS WHEREOF, and intending to be legally bound hereby, Landlord has caused this Lease Agreement to be executed on its behalf by a duly authorized officer, and Tenant, if a corporation, has caused this Lease Agreement to be executed on its behalf by a duly authorized officer, or, if a limited liability corporation, has caused this Lease Agreement to be executed on its behalf by an authorized member or managing member, as applicable, or, if a partnership or limited liability partnership, has caused this Lease Agreement to be executed on its behalf by one or more of its duly authorized partners, or, if an individual, has hereunto set his hand, all as of the day and year first written above. Landlord: ATTEST: ATAPCO CARMEL, INC. By: /s/ By: /s/ Jeffrey P. McCormack, Secretary Kevin F. McAndrews, President Tenant: ATTEST/WITNESS: DETERMINE, INC. By: By: Name: Title: - 30 - EXHIBIT "A" [a1.jpg] EXHIBIT "A" Page 1 of 1 EXHIBIT "B" TO ACCOMPANY LEASE AGREEMENT DATED _____________________, 2016, between ATAPCO CARMEL, INC. and DETERMINE, INC., a Delaware Corporation, having an office at 2121 South El Camino Real, 10th Floor, San Mateo, CA 94403. 1. The parties acknowledge that the space plan attached hereto as Exhibit “B-1” is approved and included by reference in this Lease Agreement (the "Space Plan"). Landlord shall promptly prepare construction drawings based on the Space Plan (the "Drawings"), but in no event later than March 31, 2016, which shall be subject to Tenant's approval, not to be unreasonably withheld and to be provided within ten (10) days of Tenant's receipt of the Drawings. Landlord shall, within five (5) business days of receipt of Tenant's comments to the Drawings, revise the same to include Tenant's reasonable revisions. Tenant shall have three (3) business days to review the revised Drawings. The final Drawings and the Space Plan are collectively referred to as the "Plans." THE FINAL SPACE PLAN, DRAWINGS AND SCOPE OF WORK TO BE MUTUALLY APPROVED BY BOTH LANDLORD AND TENANT PER SUBMITTALS FROM BRIANA DUNKIN INTERIORS INC. dba PARALLEL DESIGN GROUP SHALL BE ATTACHED HERETO PRIOR TO START OF CONSTRUCTION OF TENANT IMPROVEMENTS. All of Landlord's Work shall be (i) performed in a good and workmanlike manner, (ii) in material compliance with all legal requirements and in substantial compliance with the Plans. If there are no specifications listed below for particular materials or equipment, Landlord shall use those types and quantities of materials and/or equipment that are typically utilized by Landlord for tenant space in the Building. Landlord shall promptly commence and diligently pursue the Landlord's Work to completion and shall keep Tenant apprised on the progress of construction. 2. With the exception of the work described in Paragraph 1 above and the express terms of the Lease Agreement, Tenant accepts the Demised Premises in its "as-is" condition. 3. Tenant shall be responsible for any additional architectural or construction costs that may be associated with changes requested by Tenant to the approved space plan submitted by BRIANA DUNKIN INTERIORS INC. dba PARALLEL DESIGN GROUP. 4. Tenant is responsible for installation and maintenance of its telephone system, computer system, tele/data cabling, AV systems, security system (including security cameras), and generator serving the Demised Premises 5. Tenant is responsible for scheduling the installation of its furniture, including systems furniture. 6. The Space Plan is subject to change orders as are reasonably requested in writing, so long As any additional costs related to the change order shall be Tenant’s sole and exclusive obligation and any additional time needed to complete the Landlord’s work due to the change order shall defer the Commencement Date on a day for day basis, and shall defer and extend the date on which any liability for failure to complete the Landlord’s Work would otherwise commence on a day to day basis as well. All requested change orders must be specifically designated as a change order request and shall be subject to Landlord’s consent, not to be unreasonably withheld. Exhibit “B” Page 1 of 1 [b1.jpg] [b2.jpg] [b3.jpg] [b4.jpg] [b5.jpg] [b6.jpg] [b7.jpg] [b9.jpg] [b10.jpg] [b11.jpg] [b12.jpg] - 33 - Exhibit "C" CLEANING SPECIFICATIONS Landlord shall provide janitorial services in the common areas of the Building and in the Demised Premises of a standard typical for a Class A office building. These services shall include the following: Nightly - Monday through Friday (or Sunday through Thursday) 1. Empty and clean all waste receptacles, and remove all normal waste paper and waste materials. 2. Wash clean all water fountains and coolers. 3. Spot vacuum all carpeted areas. 4. Spot sweep all hard flooring surfaces. 5. Wash and disinfect all lavatory floors. 6. Wash and disinfect all counters, faucets, basins, bowls and urinals in lavatories. 7. Clean mirrors in lavatories. 8. Wash both sides of all toilet seats. 9. Fill all toilet tissue, paper towel, sanitary napkin and soap dispensers in lavatories. Weekly 1. Dust all telephones, copiers, computers and other office equipment. 2. Dust and wipe clean clear surfaces of all furniture. 3. Clean all lavatory partitions, tile walls, dispensers and receptacles. 4. Dust and spot clean all glass entry doors. Periodic - As Needed 1. Wipe and clean all walls, doors, door frames, polished metal surfaces, light switches and receptacle covers to remove dust, dirt, smudges, stains and fingerprints. 2. Wash all exterior Building windows. Excluded Areas Notwithstanding the foregoing, Landlord shall not be obligated to provide cleaning services in areas of the Demised Premises that are not used as office areas, such as closets, storage rooms, mailrooms, computer rooms, laboratories and areas used primarily for the storage, preparation, service or consumption of food or beverages (the "Excluded Areas"). Tenant, at its sole cost and expense, shall cause all Excluded Areas to be cleaned on a regular basis in a manner satisfactory to Landlord. If Tenant does not perform such cleaning services itself, it shall contract directly with Landlord's cleaning contractor to provide such services. Exhibit “C” Page 1 of 1 Exhibit "D" RULES AND REGULATIONS 1. Tenant and its agents, employees and invitees shall not loiter in or upon or in any way obstruct the grounds, sidewalks, driveways or parking areas, or the common halls, passages, exits, entrances, corridors, stairways or elevators, in or about the Building, or use such areas for any purpose other than for ingress to and egress from the Demised Premises. These areas are not for the use of the general public, and Landlord reserves the right to control and prevent access to them by all persons whose presence in the reasonable judgment of Landlord will be prejudicial to the safety, character, reputation and interests of the Building and its tenants. However, nothing in these Rules and Regulations shall be construed to prevent access by Tenant's employees, agents, contractors, invitees or those persons with whom Tenant usually deals in the ordinary course of its business, unless those persons violate these Rules and Regulations or are engaged in illegal activities. 2. Tenant shall have access to the Demised Premises 24 hours per day, every day. However, Landlord reserves the right to control ingress and egress to and from the Building and/or to close and keep locked all entrance and exit doors of the Building on Saturdays, Sundays and legal holidays, on other days between the hours of 6:00 P.M. and 6:00 A.M., and during such other times as Landlord deems advisable for the adequate protection of the Building. Access to the Building at such times shall be subject to such reasonable rules and regulations as Landlord may from time to time prescribe. Tenant and its agents, employees and invitees, and any other persons entering or leaving the Building at such times, may be required to sign a Building register, and any lobby attendant or agent of Landlord in charge shall have the right to refuse admittance to any person not possessing satisfactory identification and authorization. Landlord assumes no responsibility with respect to and shall not be liable for any damages resulting from the admission or denial of admission of any person, authorized or unauthorized, into the Building. 3. Office moves and the movement of furniture, equipment, safes, freight and bulky items into and out of the Building shall be done only at such times and in such manner as Landlord shall reasonably designate. 4. Articles of unusual size and weight will not be permitted in the Building. Landlord shall have the right to limit or prescribe the weight, size and position of all safes and other heavy equipment to be brought into the Building if reasonable and done in good faith. All damage to the Building caused by moving, installing or removing any furniture, equipment, safes, freight or other items or property of or for Tenant shall be repaired at Tenant's expense. 5. Smoking inside the Building is not allowed in lavatories, lobbies, allowed only in common areas specifically designated by Landlord for smoking. Tenant and its agents, employees and invitees shall not throw cigar or cigarette butts or other substances or litter of any kind in or about the Building except in receptacles placed there for that purpose. 6. Tenant and its agents, employees and invitees shall not make, or permit to be made, any noise that is disruptive to the other tenants or is inconsistent with the use of a first class office building, whether by the use of any musical instrument, radio, television set, other audio device or otherwise, or cause or permit any unusual or objectionable odors to be produced upon or emanate from the Demised Premises, or to materially disturb or interfere with other tenants or their agents, employees or invitees. 7. No animals (except those trained to assist the disabled), birds, bicycles or other vehicles shall be brought into or kept within the Demised Premises or any other part of the Building. 8. Except as may be expressly allowed by Article 29 of the Lease Agreement, no flammable, combustible or explosive fluid, chemical or substance shall be brought into or kept within the Demised Premises or any other part of the Building, and Tenant and its agents, employees and invitees shall obey and comply with all fire regulations and procedures applicable to the Demised Premises and the Building. 9. Except for microwave cooking, Tenant and its agents, employees and invitees shall not do or permit to be done any cooking upon the Demised Premises, or any other part of the Building, without the prior written consent of the Landlord. Exhibit “D” Page 1 of 2 10. Tenant shall not use the Demised Premises for manufacturing; or store goods, wares or merchandise within the Demised Premises except in the ordinary course of Tenant's business; or permit any auction to be conducted within or upon the Demised Premises, the Building, or the common areas adjacent to the Building. 11. Tenant shall not install or use any machinery or equipment in the Demised Premises which causes disturbing noise or jar or tremor to any of the floors or walls of the Building, or which by its weight might damage the floor of the Building upon which it is placed. 12. The directory board is provided exclusively for the display of the name and location in the Building of each tenant and Landlord reserves the right to exclude any other name therefrom and to make a charge for each and every name in addition to the name of Tenant placed on the directory board with the consent of Landlord. 13. The lavatories, toilets, urinals, washbowls and other plumbing fixtures available to Tenant and its agents, employees and invitees shall not be used for any purpose other than that for which they were designed, and no rubbish, rags, newspapers or other foreign substances shall be deposited therein. Any expense resulting from any misuse of the plumbing fixtures shall be borne by the tenant who, or whose agents, employees or invitees, shall have caused the same. 14. Tenant shall not change the locks, or install new or additional locks, on the doors of the Demised Premises without the prior written consent of Landlord. At the termination of its tenancy, Tenant shall deliver to Landlord all keys to the Demised Premises, lavatories and other areas within the Building that were furnished to Tenant or that Tenant has had made. If any keys furnished to Tenant are lost, Tenant shall reimburse Landlord for the cost of replacing them. 15. Tenant shall not mark, drive nails, screw or drill into, or in any way deface, the walls, floors, ceilings, doors, frames, partitions or any other part of the Demised Premises or the Building, other than to hang pictures or other objects commonly used for office decorations, without the prior written consent of Landlord, not to be unreasonably withheld. 16. Except as is provided in the Lease, no signs, advertisements, antennae, objects, notices or lettering shall be exhibited, inscribed, painted or affixed on any part of the exterior, roof or common areas of the Building, or on any of the sidewalks, driveways, parking areas, grounds or other common areas adjacent to the Building, or on any part of the Demised Premises that is visible from outside the Demised Premises, without the prior written consent of Landlord. Landlord shall have the right to prohibit any advertising by Tenant which, in Landlord's opinion reasonably exercised, tends to impair the reputation of the Building or its desirability as an office building, and, upon written notice from Landlord, Tenant shall refrain from or discontinue such advertising. 17. All data, electric and telephone cabling and wiring shall be installed as reasonably directed by Landlord, and the boring or cutting of floors and partitions for cables, wires or other purposes is not to be permitted except with the prior written consent of Landlord, not to be unreasonably withheld; the foregoing does not apply to Landlord's Work which is done by Landlord. 18. Tenant shall not install any curtains, blinds, shades, screens, awnings or other form of inside or outside window covering, or window ventilators or similar devices, without the prior written consent of Landlord, not to be unreasonably withheld. 19. Parking of vehicles on the Landlord's property is permitted only in areas designated by Landlord for that purpose. No trucks (other than vans and pickup trucks), motor homes, boats or trailers of any kind may be parked on Landlord's property at any time, and no vehicles of any kind may be kept on Landlord's property overnight. The washing, maintenance or repair of vehicles is not permitted on Landlord's property except as may be specifically permitted by Landlord. 20. Tenant will not, without the consent of Landlord, use the name of the Building for any purpose other than as the address of the business to be conducted by Tenant in the Demised Premises, nor will Tenant do or permit the doing of anything in connection with Tenant's business or advertising that in the reasonable judgment of Landlord may reflect unfavorably on Landlord or the Building or confuse or mislead the public as to any relationship between Landlord and Tenant. 21. If Tenant desires janitorial services in addition to those furnished by Landlord, or required to be furnished, under the Lease Agreement, Tenant shall not engage anyone other than Landlord's cleaning contractor to provide such additional services without the prior written consent of Landlord. Exhibit “D” Page 2 of 2
UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 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 18, 2007 Tortoise Capital Resources Corporation (Exact Name of Registrant as Specified in Its Charter) Maryland1-3329220-3431375 (State or Other Jurisdiction(Commission File Number) (IRS Employer of Incorporation) Identification No.) 10801 Mastin Blvd., Suite 222, Overland Park, KS66210 (Address of Principal Executive Offices) (Zip Code) (913) 981-1020 (Registrant’s Telephone Number, Including Area Code) Not Applicable (Former Name or Former Address, if Changed Since Last Report) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions: □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.
Exhibit (31.2) CERTIFICATION I, David E. Bullwinkle, certify that: 1) I have reviewed this Form 10-K; 2) 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; 3) 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; 4) The registrant's other certifying officer and I are responsible for establishing and maintaining 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 15d-15(f)) for the registrant and have: a)Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; b)Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our 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; c)Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions 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 d)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 (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and 5) The registrant's other certifying officer and I have disclosed, based on our 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. /s/David E. Bullwinkle David E. Bullwinkle
Title: Mechanic replaced my transmission for no reason. Now they want me to pay them. State: Michigan Question:I took my car in because the fuel gauge has been reading incorrectly. They told me the sensor needs to be replaced and it would cost $280. I agreed. They said they had to find and order a part and it would take several days. Four days later I came to pick it up and they had replaced the the transmission. According to the owner of the shop they had another vehicle of my make/model/year in for a transmission replacement, and the guy who did the work accidentally did it on my car instead of the other car because he didn't realize they had two of the same car in the shop. The owner of the shop said he will waive the cost of labor but he wants me to pay for the cost of the transmission, because even though my car didn't need the transmission replaced, it will still benefit from it - he's basically arguing that my current transmission was at 60k, whereas the new transmission is at 0, so my car will run longer before it needs a replacement again, so I should pay for it. I have no interest in paying for it. I told him he can go ahead and put my old transmission back in. He said he already traded it in to a parts place. He told me if I don't pay for $1800 (what he claims to have paid for the transmission) he'll sue me for it. I want to know how concerned I need to be about this. Is he likely to win, since in the long run I'll probably benefit from a new transmission? Or am I likely to be safe since they did it all on their own by mistake and got rid of mine? Thanks Answer #1: Do they give you any sort of write-up when you dropped the car off? Hopefully you didn't sign anything when you went back later indicating that you agreed to pay for a transmission. Either way, no he won't win. He performed work that you didn't agree to, and by mistake at that...that is on him. And for all you know, he didn't replace the transmission at all and is really trying to cheat you. Tell him to F*** off and start looking for another reputable mechanic. Answer #2: The Department of State apparently handles [these sorts of issues](http://www.michigan.gov/sos/0,4670,7-127-1585_50410_50412-33494--,00.html) in Michigan. They say you should give them a call if there's a problem you can't resolve with the repair shop, and this sort of complaint seems to be right up their alley. 1-888-SOS-MICH.Answer #3: Was your drivetrain still under warranty? Was this replacement done at a factory dealer? Is the new part and work still covered by the warranty? I am not a lawyer- I can't believe you would be liable for the work, but you will have to get a legal opinion to determine that. But if your old drivetrain was under warranty, you may have just lost that coverage... I would call the mechanic and ask him (possibly under the guise of negotiating) what warranty the new part carries. Then call the dealer you bought the car from (or better yet, whoever services the warranty) and ask how this might affect your coverage. If you have lost value in the coverage, I would sue the guy to get the new part covered as before, or recoup the cost of replacing his part with a factory covered transmission.Answer #4: You have no legal binding contact to pay for the part. It's like getting your sink unclogged by a plumber and he replaces your furnace. Tell him I'm taking the car, i have no legal reason to pay for an unauthorized repair, if you want to sue me go for it, because any smart judge will throw it out.Answer #5: If the mechanic "traded in" the old transmission, chances are you got a remanufactured transmission, not a new one. Depending on what company remanufactured it, that could be OK or not OK. Have it checked by a mechanic you trust, and find out what kind of warranty it has now. You might have to contact the supplier, because I doubt the shop filled out the paperwork properly. Answer #6: The state where I live requires shops to return old parts that have been replaced unless you decline return beforehand. I would demand the old transmission be given to me. P.S. I would also want to see original quote on other car and want invoice from vendor showing exactly where new transmission came from and cost to dealer.
Filed pursuant to Rule 433 Registration Statement No. 333-180300-03 FINANCIAL PRODUCTS FACT SHEET (K404) Offering Period: March 28, 2014 – April 24, 2014 4 Year Buffered Accelerated Return Equity Securities (BARES) Linked to the Eurostoxx 50 ® Index Product Summary • 4 year Buffered Accelerated Return Equity Securities (BARES) linked to the performance of the Russell 2000 ® Index. • If the Final Level is equal to or greater than the Initial Level, then you will be entitled to participate on a leveraged basis in the appreciation of the Underlying. • If the Final Level is less than the Initial Level by not more than the Buffer Amount, then you will be entitled to receive the principal amount at maturity. • If the Final Level is less than the Initial Level by more than the Buffer Amount, then you will be exposed to any depreciation in the Underlying beyond the Buffer Amount. • Any payment on the securities is subject to our ability to pay our obligations as they become due. • Credit Suisse currently estimates that the value of the securities on the Trade Date will be less than the price you pay for the securities, reflecting the deduction of underwriting discounts and commissions and other costs of creating and marketing the securities. Terms Issuer: Credit Suisse AG (“Credit Suisse”), acting through one of its Branches Trade Date: Expected to be April 25, 2014 Settlement Date: Expected to be April 30, 2014 Underlying: The Eurostoxx 50 ® Index. Upside Participation Rate: Expected to be between 125 and 130% Redemption Amount: Principal Amount x (1 + Underlying Return). Underlying Return: If (a) the Final Level is equal to or greater than the Initial Level, then: the Upside Participation Rate x [(Final Level – Initial Level) / Initial Level]; (b) the Final Level is less than the Initial Level by not more than the Buffer Amount, then: zero; or (c) if the Final Level is less than the Initial Level by more than the Buffer Amount, then: [(Final Level – Initial Level) / Initial Level] + Buffer Amount. Buffer Amount: 15% Initial Level: The closing levelon the Trade Date. Final Level: The closing level on the Valuation Date. Valuation Date: April 25, 2018 Maturity Date: April 30, 2018 CUSIP: 22547QLL8 To be determined on the Trade Date. Benefits • Offers the potential for leveraged participation in the appreciation of the Underlying. • Reduced downside risk due to a Buffer Amount of 15%. Hypothetical Returns at Maturity Percentage Change from Initial Level to Final Level Underlying Return (1) Redemption Amount per $1,000 Principal Amount (1)(2) 50% 63.75% $1,637.50 40% 51.00% $1,510.00 30% 38.25% $1,382.50 20% 25.50% $1,255.00 10% 12.75% $1,127.50 0% 0.00% $1,000.00 -10% 0.00% $1,000.00 -20% -5.00% $950.00 -30% -15.0% $850.00 -40% -25.00% $750.00 -50% -35.00% $650.00 Assumes an Upside Participation Rate of 127.5% (the midpoint of the expected range*). The hypothetical Redemption Amounts set forth above are for illustrative purposes only and may not be the actual returns applicable to you. The numbers appearing in the table have been rounded for ease of analysis. Certain Product Risks • Your investment may result in a loss of up to 85% of the principal amount. The Redemption Amount will be less than the principal amount if the Final Level is less than the Initial Level by more than the Buffer Amount.
Exhibit 10.3 THIRD AMENDED AND RESTATED MORTGAGE NOTE $33,000,000.00 Oak Brook, Illinois October 3, 2012 THIS THIRD AMENDED AND RESTATED MORTGAGE NOTE (hereinafter referred to as this “Note”) is made by and between DAYVILLE PROPERTY DEVELOPMENT LLC, a Connecticut limited liability company (hereinafter referred to as “Maker”), and THE HUNTINGTON NATIONAL BANK, successor by purchase to Sky Bank, with offices at 310 Grant Street, 5th Floor, Pittsburgh, Pennsylvania 15219 (hereinafter referred to as “Payee”). RECITALS WHEREAS, Maker executed and delivered to Sky Bank that certain Mortgage Note dated as of January 27, 2006, in the original principal amount of Forty Seven Million and No/100 Dollars ($47,000,000.00) (hereinafter referred to as the “Original Note”); and WHEREAS, Maker executed and delivered to Payee that certain Amended and Restated Mortgage Note dated as of March 26, 2008 in the principal amount of Forty Six Million and No/100 Dollars ($46,000,000.00) (hereinafter referred to as the “First Restated Note”); and WHEREAS, Maker executed and delivered to Payee that certain Second Amended and Restated Mortgage Note dated as of July 22, 2011 in the principal amount of Forty Five Million and No/100 Dollars ($45,000,000.00) (hereinafter referred to as the “Second Restated Note”); and WHEREAS, Maker and Payee have agreed to amend and restate the Second Restated Note as set forth herein; and WHEREAS, Maker, Payee, Inland Diversified Real Estate Trust, Inc., a Maryland corporation (“Replacement Guarantor”), and BVS Acquisition Co., LLC, a Delaware limited liability company (“BVS”) have entered into that certain Twelfth Loan Modification and Extension Agreement and Release of Guaranty and Indemnity of even date herewith (hereinafter referred to as the “Twelfth Modification”), pursuant to which the parties modified the Loan Documents (as defined in the Twelfth Modification) to reflect the substitution of this Note for the Second Restated Note and to effect certain other modifications to the Loan Documents. NOW, THEREFORE, for good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, the parties hereto, intending to be 907971 (10/1/12) legally bound, agree that the Second Restated Note is hereby amended and restated as follows: MORTGAGE NOTE $33,000,000.00 Oak Brook, Illinois October 3, 2012 FOR VALUE RECEIVED, DAYVILLE PROPERTY DEVELOPMENT LLC, a Connecticut limited liability company (hereinafter referred to as “Maker”), promises to pay to the order of THE HUNTINGTON NATIONAL BANK, successor by purchase to Sky Bank, with offices at 310 Grant Street, 5th Floor, Pittsburgh, Pennsylvania 15219 (hereinafter referred to as “Payee”), the principal sum of Thirty Three Million and No/100 Dollars ($33,000,000.00), lawful money of the United States of America, together with interest from the date hereof, at the rate and on the terms set forth herein, as follows: A. RATE OF INTEREST. From and including the Date of Closing and through and including the Maturity Date, this Note shall bear interest on the Principal Balance at a rate per annum equal to the LIBOR Rate plus two and three-quarters percent (2.75%) (hereinafter referred to as the “Interest Rate”), fixed for consecutive one (1) calendar month periods (hereinafter referred to as the “LIBOR Rate Periods”); provided that, if any LIBOR Rate Period would otherwise expire on a day which is not a Banking Day, then such LIBOR Rate Period shall expire on the immediately preceding Banking Day, and the next LIBOR Rate Period shall begin on the day immediately following such Banking Day. Notwithstanding the foregoing provisions of this Section A to the contrary, the first LIBOR Rate Period shall commence on the Date of Closing. Interest at the Interest Rate shall accrue on the Principal Balance based on the actual days elapsed per calendar month, and shall be calculated based on a year of 360 days. The term “LIBOR Rate”, as used herein, shall mean the rate obtained by dividing: (i) the actual or estimated per annum rate, or the arithmetic mean of the per annum rates, of interest for deposits in U.S. dollars for the related LIBOR Rate Period, as determined by Payee in its discretion based upon reference to information which appears on page LIBOR01, captioned British Bankers Assoc. Interest Settlement Rates, of the Reuters America Network, a service of Reuters America Inc. (or such other page that may replace that page on that service for the purpose of displaying London interbank offered rates; or, if such service ceases to be available or ceases to be used by Payee, such other reasonably comparable money rate service as Payee may select), as of two Banking Days prior to the first day of a LIBOR Rate Period; by (ii) an amount equal to one minus the stated maximum rate (expressed as a decimal), if any, of all reserve requirements (including, without limitation, any marginal emergency, supplemental, special or other reserves) that is specified on the first day of each LIBOR Rate Period by the Board of Governors of the Federal Reserve System (or any successor agency thereto) for determining the maximum reserve requirement with respect to eurocurrency funding (currently referred to as “Eurocurrency liabilities” in Regulation D of such Board) maintained by a member bank of such System, or any -2- other regulations of any governmental authority having jurisdiction with respect thereto as conclusively determined by Payee. Subject to any maximum or minimum interest rate limitation specified herein or by applicable law, any variable rate of interest on the obligation evidenced hereby shall change automatically without notice to Maker on the first day of each LIBOR Rate Period (hereinafter referred to as the “Index”). The Index is not necessarily the lowest rate charged by Payee on its loans. If the Index becomes unavailable during the term of this loan, Payee may designate a substitute index after written notice to Maker. Payee will tell Maker the current Index rate upon Maker’s request. The interest rate change will not occur more often than each month (the “rate change event”). Maker understands that Payee may make loans based on other rates as well. NOTICE: Under no circumstances will the interest rate on this Note be more than the maximum rate allowed by applicable law. Capitalized terms used in this Section A and not defined herein shall have the meanings ascribed thereto in Sections B, C and D of this Note. In the event that Payee reasonably determines that by reason of (1) any change arising after the date of this Note affecting the interbank eurocurrency market or affecting the position of Payee with respect to such market, adequate and fair means do not exist for ascertaining the applicable interest rates by reference to which the LIBOR Rate then being determined is to be fixed, (2) any change arising after the date of this Note in any applicable law or governmental rule, regulation or order (or any interpretation thereof, including the introduction of any new law or governmental rule, regulation or order), or (3) any other circumstance affecting Payee or the interbank market (such as, but not limited to, official reserve requirements required by Regulation D of the Board of Governors of the Federal Reserve System), the LIBOR Rate plus the applicable spread shall not represent the effective pricing to Payee of accruing interest hereunder based upon the LIBOR Rate, then, and in any such event, the accruing of interest hereunder based upon the LIBOR Rate shall be suspended until Payee shall notify Maker that the circumstances causing such suspension no longer exist. In such case, beginning on the date of such suspension interest shall accrue hereunder at a variable rate of interest per annum, which shall change in the manner set forth below, equal to zero percentage points in excess of the Prime Commercial Rate. In the event that on any date Payee shall have reasonably determined that accruing interest hereunder based upon the LIBOR Rate has become unlawful by compliance by Payee in good faith with any law, governmental rule, regulation or order, then, and in any such event, Payee shall promptly give notice thereof to Maker. In such case, accruing interest hereunder based upon the LIBOR Rate shall be terminated and Maker shall, at the earlier of the end of each LIBOR Rate Period then in effect or when required by law, repay the advances based upon the LIBOR Rate, together with all interest accrued thereon. In such case, when required by law, interest shall accrue hereunder at a variable rate of interest per annum, which shall change in the manner set forth below, equal to zero percentage points in excess of the Prime Commercial Rate. As used herein, the term “Prime Commercial Rate” shall mean the rate established by Payee from time to time based on its consideration of economic, money market, -3- business and competitive factors, and it is not necessarily Payee's most favored rate. Subject to any maximum or minimum interest rate limitation specified herein or by applicable law, any variable rate of interest on the obligation evidenced hereby based upon the Prime Commercial Rate shall change automatically without notice to Maker immediately with each change in the Prime Commercial Rate. If during any period of time while interest is accruing hereunder based upon the Prime Commercial Rate the obligation evidenced by this Note is not paid at maturity, whether maturity occurs by lapse of time, demand, acceleration or otherwise, the unpaid principal balance and any unpaid interest thereon shall, thereafter until paid, bear interest at a rate equal to zero percentage points in excess of the rate indicated in the immediately preceding two paragraphs. B. TERMS OF PAYMENT. 1. Initial Monthly Installments. During the Initial Term (as defined in Subparagraph C.1. hereof), Maker shall pay to Payee sixty (60) consecutive monthly payments of interest only at the Interest Rate (hereinafter individually referred to as the “Initial Monthly Installment” and collectively as the “Initial Monthly Installments”). The Initial Monthly Installments shall be due and payable on November 1, 2012 and on the first day of each calendar month thereafter, through and including October 1, 2017. 2. Extended Monthly Installments. In the event that the term of this Note is extended for the Extended Term (as defined in Subparagraph C.2. hereof), Maker shall pay to Payee sixty (60) consecutive monthly payments of interest only at the Interest Rate (hereinafter individually referred to as an “Extended Monthly Installment” and collectively referred to as the “Extended Monthly Installments”), which Extended Monthly Installments shall be due, payable and paid on November 1, 2017 and on the first day of each calendar month thereafter through and including October 1, 2022. 3. Application of Payments. All payments of Monthly Installments (as hereinafter defined) and any partial payment of any Monthly Installment shall be applied first to late fees and charges and any other charges due hereunder, then to interest and then to principal. If the due date of any Monthly Installment shall be a day that is not a Banking Day, the due date shall be extended to the next succeeding Banking Day; provided, however, that if such succeeding Banking Day occurs in the following calendar month, then the due date shall be the immediately preceding Banking Day. The term “Banking Day”, as used herein, shall mean any day other than a Saturday or a Sunday on which banks are open for business in Columbus, Ohio, and on which banks in London, England settle payments. 4. Balloon Payment. Maker acknowledges that the foregoing Monthly Installment payment schedule will not fully amortize the Principal Balance during the term of this Note and will result in a “balloon payment” on the Maturity Date (as hereinafter defined). -4- 5. Additional Payments. If, due to (1) the introduction of or any change in or in the interpretation of any law or regulation, (2) the compliance with any guideline or request from any central bank or other public authority (whether or not having the force of law), or (3) the failure of Maker to repay any advance when required by the terms of this Note, there shall be any loss or increase in the cost to Payee of accruing interest hereunder based upon the LIBOR Rate, then Maker agrees that Maker shall, from time to time, upon demand by Payee, pay to Payee additional amounts sufficient to compensate Payee for such loss or increased cost. A certificate as to the amount of such loss or increase cost, submitted to Maker by Payee, shall be conclusive evidence, absent manifest error, of the correctness of such amount. C. MATURITY. 1. Initial Term. Subject to Subparagraph C.2. below, the entire Principal Balance, together with all accrued and unpaid interest thereon and any other unpaid sums, shall be due, payable and paid, without presentment or demand, on November 1, 2017 (referred to herein as the “Initial Maturity Date”), such period of time from the Date of Closing to the Initial Maturity Date being referred to herein as the “Initial Term”. 2. Extended Term. At the termination of the Initial Term, provided that an Event of Default (as hereinafter defined) does not then exist hereunder, and provided further that Maker satisfies the conditions set forth below in this Subparagraph C.2, Payee shall, if requested in writing by Maker, extend the Initial Term for an additional five (5) calendar years (referred to herein as the “Extended Term”). Maker may request such extension, in writing, no later than ninety (90) days prior to the Initial Maturity Date. Payee’s approval of such extension request shall be conditioned and contingent upon: (i) Maker’s payment to Payee, on or before the Initial Maturity Date, of a loan extension fee in the amount of Eighty Two Thousand Five Hundred and No/100 Dollars ($82,500.00), (ii) the Mortgaged Property (as hereinafter defined), as of the commencement of the Extended Term, shall have a Cash Flow/Debt Service Ratio (as hereinafter defined) of not less than 1.15 to 1, and (iii) the fair market value of the Mortgaged Property, as determined pursuant to an updated appraisal of the Mortgaged Property obtained no earlier than ninety (90) days prior to the expiration of the Initial Term, shall not exceed sixty percent (60%) of the outstanding Principal Balance hereof as of the first day of the Extended Term. In the event that the term of this Note is extended for the Extended Term, then the entire Principal Balance, together with all accrued and unpaid interest thereon, shall be due, payable and paid, without presentment or demand, on November 1, 2022 (referred to herein as the “Extended Maturity Date”). D. DEFINITIONS. 1. Date of Closing. The term “Date of Closing”, as used herein, shall mean October 3, 2012. -5- 2. Principal Balance. The term “Principal Balance”, as used herein, shall mean the outstanding and unpaid principal amount of this Note and all other sums (excluding interest) required to be paid by Maker pursuant to the terms of this Note and the Mortgage (as defined in the Twelfth Modification). 2. Monthly Installments. The term “Monthly Installments”, as used herein, shall mean the then applicable Initial Monthly Installments or Extended Monthly Installments. 3. Maturity Date. The term “Maturity Date”, as used herein, shall mean the Initial Maturity Date or the Extended Maturity Date, as applicable. 4. Cash Flow/Debt Service Ratio. The term “Cash Flow/Debt Service Ratio”, as used herein, shall mean a fraction, expressed as a ratio, the numerator of which shall be the annual net operating income from the Mortgaged Property for the most recent four (4) calendar quarters (as calculated by Payee, in Payee’s commercially reasonable discretion and based upon Payee’s review of Maker’s operating statements for the Mortgaged Property, and the denominator of which shall be the sum of the debt service payments for the period in question calculated by fully amortizing the outstanding Principal Balance of this Note over a period of twenty-five (25) years at an assumed interest rate equal to either: (a) six and one-half percent (6.5%) per annum if the actual Interest Rate hereunder shall be based upon the LIBOR Rate as provided in Section A above, or (b) the actual in place fixed rate if the interest rate hereunder shall have been fixed pursuant to a Rate Management Transaction (as hereinafter defined). 5. Rate Management Agreement. The term “Rate Management Agreement”, as used herein, means any ISDA Master Agreement between Maker and Payee or any affiliate of Payee, and any schedules, confirmations and documents and other confirming evidence between the parties confirming transactions thereunder, all whether now existing or hereafter arising, and in each case as amended, modified or supplemented from time to time. 6. Rate Management Obligations. The term “Rate Management Obligations”, as used herein, means any and all obligations of Maker to Payee or any affiliate of Payee, whether absolute, contingent or otherwise and howsoever and whensoever (whether now or hereafter created), arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutes therefor) under or in connection with (i) any Rate Management Agreement(s), and (ii) any and all cancellations, bring-backs, reversals, terminations or assignments of any Rate Management Agreement. 7. Rate Management Transaction(s). The term “Rate Management Transaction(s)”, as used herein, means any transaction (including the Rate Management Agreement with respect thereto) now existing or hereafter entered into among Maker and Payee, or any of its subsidiaries or affiliates or their successors, which is a rate swap, basis swap, forward rate transaction, commodity swap, -6- commodity option, equity or equity index swap, equity or equity index option, bond option, interest rate option, foreign exchange transaction, cap transaction, floor transaction, collar transaction, forward transaction, currency swap transaction, cross-currency rate swap transaction, currency option or any other similar transaction (including any option with respect to any of these transactions) or any combination thereof, whether lined to one or more interest rates, foreign currencies, commodity prices, equity prices or other financial measures. E. PLACE OF PAYMENT. The Monthly Installments and all other sums due hereunder and under the Mortgage shall be payable at The Huntington National Bank, 2361 Morse Road, NC1W26, Columbus, Ohio 43229, or at such other place as Payee, from time to time may designate to Maker in writing, delivered to Maker at the address set forth in the Mortgage for notices to Maker. F. PREPAYMENT. Maker shall have the right to prepay the Principal Balance, in whole or in part, at any time during the term of this Note, without penalty or premium; provided, however, that any such prepayment is accompanied by payment of all interest accrued on the outstanding Principal Balance of this Note to the date of prepayment, and by payment of all other fees, costs and charges required to be paid by Maker to and for the benefit of Payee. Notwithstanding anything contained herein to the contrary, Maker shall also pay to Payee any fees or expenses as are applicable for an early termination of any Rate Management Agreement. All sums due hereunder shall be without relief from valuation of appraisement laws. Payment of this Note is secured by the Loan Documents and the Replacement Guaranty (as defined in the Twelfth Modification). All of the agreements, conditions, covenants, provisions and stipulations contained in the Loan Documents, the Replacement Guaranty and the Rate Management Agreement (hereinafter collectively referred to as the “Security Documents”) are hereby made a part of this Note to the same extent and with the same force and effect as if they were fully set forth herein, and Maker covenants and agrees to keep and perform them, or cause them to be kept and performed, strictly in accordance with their terms. If any Monthly Installment or any other payment due hereunder shall not be paid, in immediately available and collectible funds, within ten (10) days of its due date, Maker shall pay to Payee a one-time (per late payment) late charge of five cents ($.05) for each dollar of such amount so overdue. It is further understood that the following defaults shall constitute events of default hereunder and are referred to herein as an “Event of Default” or “Events of Default”: (i) a default in the payment, in immediately available and collectible funds, of any Monthly Installment or any monetary sum due hereunder or under the Security Documents and such default is not fully cured within ten (10) days from the date on which it shall fall due, or (ii) a default in the performance of any of the non-monetary agreements, conditions, covenants, provisions or stipulations contained in this Note, or in the Security Documents and such default is not cured within thirty (30) days after receipt of written notice thereof; provided, however, that if such default is not susceptible of being cured within thirty (30) days, such thirty (30) day period shall be extended for -7- such additional time as Payee shall reasonably deem necessary for such cure, provided that Maker commences to cure such default during the original thirty (30) day period and diligently prosecutes the curing thereof. Upon the occurrence of an Event of Default hereunder or under the Security Documents, Payee, at its option and without notice to Maker, may declare immediately due and payable the entire Principal Balance with interest accrued thereon at the Interest Rate to the date of such Event of Default and thereafter at a rate three percent (3%) per annum in excess of the Interest Rate and all other sums due by Maker hereunder or under the Security Documents, anything herein or in the Mortgage to the contrary notwithstanding; and payment thereof may be enforced and recovered in whole or in part at any time by one or more of the remedies provided to Payee in this Note or in the Security Documents. In such case, Payee may also recover all costs of suit and other expenses in connection therewith, together with reasonable attorney’s fees for collection, together with interest on any judgment obtained by Payee at a rate three percent (3%) per annum, in excess of the Interest Rate from and after the date of any Sheriff’s sale until actual payment is made by the Sheriff to Payee of the full amount due Payee. The remedies of Payee as provided herein, or in the Security Documents, and the warrants contained herein or in the Security Documents shall be cumulative and concurrent, and may be pursued singularly, successively, or together at the sole discretion of Payee, and may be exercised as often as occasion therefor shall occur; and the failure to exercise any such right or remedy shall in no event be construed as a waiver or release thereof. In the event that Maker and Payee enter into Rate Management Transactions, Maker shall be responsible for any and all obligations, contingent or otherwise, whether now existing or hereafter arising, of Maker to Payee, or to any of its subsidiaries or affiliates or successors arising under or in connection with such Rate Management Transactions, all of which obligations shall be entitled to all of the benefits and protections afforded to Payee under or pursuant to the Security Documents. To the extent permitted under applicable law, Maker hereby waives and releases all errors, defects and imperfections in any proceedings instituted by Payee under the terms of this Note, or of the Security Documents, as well as all benefit that might accrue to Maker by virtue of any present or future laws exempting the Mortgaged Property (as defined in the Twelfth Modification), or any other property, real or personal, or any part of the proceeds arising from any sale of any such property from attachment, levy, or sale under execution, or providing for any stay of execution, exemption from civil process, or extension of time for payment; and Maker agrees that any real estate that may be levied upon pursuant to a judgment obtained by virtue hereof, on any writ of execution issued thereon may be sold upon any such writ in whole or in part in any order desired by Payee. Maker and all endorsers, sureties and guarantors hereby jointly and severally waive presentment for payment, demand, notice of demand, notice of nonpayment or dishonor, protest and notice of protest of this Note, and all other -8- notices in connection with the delivery, acceptance, performance, default, or enforcement of the payment of this Note, unless specifically required herein or in the Security Documents, and they agree that the liability of each of them shall be unconditional, without regard to the liability of any other party, and shall not be affected in any manner by any indulgence, extension of time, renewal, waiver or modification granted or consented to by Payee. Maker and all endorsers, sureties, and guarantors consent to any and all extensions of time, renewals, waivers or modifications that may be granted by Payee with respect to the payment or other provisions of this Note, and to the release of the collateral or any part thereof, with or without substitution and agree that additional makers, endorsers, guarantors, or sureties may become parties hereto without notice to them or affecting their liability hereunder. Payee shall not be deemed, by any act of omission or commission, to have waived any of its rights or remedies hereunder unless such waiver is in writing and signed by Payee, and then only to the extent specifically set forth in the writing. A waiver on one event shall not be construed as continuing or as a bar to or waiver of any right or remedy to a subsequent event. If any term or provision of this Note or the application thereof to any person, property or circumstance shall to any extent be invalid or unenforceable as to the remainder of this Note, then the application of such term or provision to persons, properties and circumstances other than those as to which it is invalid or unenforceable, shall not be affected thereby, and each term and provision of this Note shall be valid and enforceable to the fullest extent permitted by law. Notwithstanding anything to the contrary contained in this Note or in the Security Documents, the effective rate of interest on the obligation evidenced by this Note shall not exceed the lawful maximum rate of interest permitted to be paid. Without limiting the generality of the foregoing, if the interest charged under this Note results in an effective rate of interest higher than that lawfully permitted to be paid, then such charges shall be reduced by the sum sufficient to result in an effective rate of interest no greater than the maximum effective rate of interest permitted by law and any amount that would exceed the highest lawful rate already received and held by the Payee shall be applied to a reduction of principal (without premium or penalty) and not to the payment of interest. Part of the consideration for the loan evidenced by this Note is that the loan (i) is and shall be deemed made under, governed by and construed and enforced in accordance with the internal law of the Commonwealth of Pennsylvania, except to the extent that the procedural laws of the State of Connecticut shall apply to any action commenced by Payee in pursuit of its remedies hereunder or otherwise, as applicable, and (ii) is and shall be enforceable only in the State Courts of said Commonwealth with an action commenced in the Court of Common Pleas of Allegheny County, and/or in the Federal Courts of said Commonwealth with an action commenced in the United States District Court for the Western District of Pennsylvania, except to the extent that any action commenced by Payee in pursuit of -9- its remedies hereunder or otherwise, shall be enforceable in the State Courts and/or Federal Courts of the State of Connecticut, at Payee’s sole discretion. Maker hereby waives any claim that Pittsburgh, Pennsylvania is an inconvenient forum and any claim that any action or proceeding arising out of or relating to this Note and commenced in the aforesaid Courts lacks proper venue. Whenever used, the singular number shall include the plural, the plural the singular, the use of any gender shall be applicable to all genders, the words “Payee” and “Maker” shall be deemed to include the respective successors and assigns of Payee and Maker. The captions preceding the text of the paragraphs or subparagraphs of this Note are inserted only for convenience of reference and shall not constitute a part of this Note, nor shall they in any way affect its meaning, construction or effect. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] [SIGNATURE ON FOLLOWING PAGE] -10- IN WITNESS WHEREOF, this Note has been duly signed and delivered by the undersigned at the place and as of the day and year first above written. DAYVILLE PROPERTY DEVELOPMENT LLC, a Connecticut limited liability company By: INLAND DIVERSIFIED DAYVILLE KILLINGLY MEMBER L.L.C., a Delaware limited liability company Its: Sole Member KILLINGLY MEMBER II, L.L.C., a Delaware limited liability company Its: Managing Member WITNESS: By: INLAND DIVERSIFIED REAL ESTATE TRUST, INC. a Maryland corporation Its: Sole Member _/s/ Kelly Janish_ By: /s/ Barry L. Lazarus Barry L. Lazarus, President -11- Exhibit 10.3 STATE OF ILLINOIS ) ) SS: COUNTY OF DUPAGE ) On this 3rd day of October, 2012, before me, a Notary Public, the undersigned officer, personally appeared BARRY A. LAZARUS, who acknowledged himself to be the President of INLAND DIVERSIFIED REAL ESTATE TRUST, INC. ,a Maryland corporation and the sole member of INLAND DIVERSIFIED DAYVILLE KILLINGLY MEMBER II, L.L.C., a Delaware limited liability company and the managing member of INLAND DIVERSIFIED DAYVILLE KILLINGLY MEMBER, L.L.C., a Delaware limited liability company and the sole member of DAYVILLE PROPERTY DEVELOPMENT LLC, a Connecticut limited liability company, and that he as such officer, being authorized to do so, executed the foregoing instrument for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. /s/ Eugene J. Filice Notary Public MY COMMISSION EXPIRES:
Exhibit 10.3 EXECUTION VERSION December 28, 2015 Advanced Drainage Systems, Inc. 4640 Trueman Blvd. Hilliard, OH 43026 Re: Amendment No. 9 and Consent to Amended and Restated Private Shelf Agreement Ladies and Gentlemen: Reference is made to that certain Amended and Restated Private Shelf Agreement, dated as of September 24, 2010, as amended by that certain Amendment No. 1 to Amended and Restated Private Shelf Agreement dated December 12, 2011, Limited Waiver and Amendment No. 2 to Amended and Restated Private Shelf Agreement dated March 9, 2012, Amendment No. 3 to Amended and Restated Private Shelf Agreement dated March 30, 2012, Amendment No. 4 to Amended and Restated Private Shelf Agreement dated April 26, 2013, Amendment No. 5 to Amended and Restated Private Shelf Agreement dated June 12, 2013, including the Supplement thereto dated June 24, 2013, Amendment No. 6 to Amended and Restated Private Shelf Agreement dated September 23, 2013, Amendment No. 7 to Amended and Restated Private Shelf Agreement dated December 31, 2013, and Amendment No. 8 and Limited Waiver to Amended and Restated Private Shelf Agreement dated August 21, 2015 (as so amended, the “Note Agreement”), between Advanced Drainage Systems, Inc., a Delaware corporation (the “Company”), on one hand, and Prudential Investment Management, Inc. (“Prudential”) and each other Prudential Affiliate as therein defined which becomes bound by certain provisions thereof as therein provided, on the other hand. Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Note Agreement. Pursuant to that certain Consent under Amended and Restated Private Shelf Agreement, dated as of October 26, 2015, Prudential and the holders of the Notes have extended (A) the time for the delivery of (i) the audited financial statements of the Company for the fiscal year ended on March 31, 2015, certified by independent certified public accountants in accordance with paragraph 5A(ii) of the Note Agreement (the “2015 Audited Financial Statements”) until November 30, 2015, (ii) the financial statements of the Company for the fiscal quarter ended on June 30, 2015, to be delivered in accordance with paragraph 5A(i) of the Note Agreement (the “Q1 Quarterly Financial Statements”) until November 30, 2015 and (iii) financial statements of the Company for the fiscal quarter ended September 30, 2015, to be delivered in accordance with paragraph 5A(i) of the Note Agreement (the “Q2 Quarterly Financial Statements”) until December 31, 2015, (B) (i) the time by which the Excess Leverage Fee, if any, shall be calculated and paid and (ii) the time for delivery of the Officer’s Certificate pursuant to the last sentence of the definition of “Leverage Ratio” in the Note Agreement, in each case, relating to the fiscal quarters ended on March 31, 2015 and June 30, 2015, in each case, until the earlier of (x) the date on which the Company delivers the financial statements required by paragraph 5A of the Note Agreement for each such fiscal year or fiscal quarter, as applicable, and (y) December 30, 2015 and (C) the time by which the Excess Leverage Fee, if any, shall be calculated and paid, relating to the fiscal quarter ended on September 30, 2015 until the earlier of (i) the date on which the Company delivers the financial statements required by paragraph 5A of the Note Agreement for such fiscal quarter, as applicable, and (ii) January 30, 2016. The Company has requested that Prudential and the holders of Notes (A) amend the Note Agreement as set forth herein, (B) further extend the time for the delivery of the 2015 Audited Financial Statements, the Q1 Quarterly Financial Statements and the Q2 Quarterly Financial Statements until January 31, 2016, (C) further extend (i) the time by which the Excess Leverage Fee, if any, shall be calculated and paid relating to the fiscal quarters ended on March 31, 2015, June 30, 2015 and September 30, 2015 and (ii) the time for delivery of the Officer’s Certificate pursuant to the last sentence of the definition of “Leverage Ratio” in the Note Agreement, in each case, relating to the fiscal quarters ended on March 31, 2015 and June 30, 2015, in each case, until the earlier of (a) the date on which the Company delivers the financial statements required by paragraph 5A of the Note Agreement for each such fiscal year or fiscal quarter, as applicable, and (b) March 2, 2016 (such earlier date, the “Extension Date”), (D) permit the Company to characterize the Fleet Leases and Aircraft Leases as operating leases for the fiscal quarter ended on September 30, 2015 solely for the purposes of paragraph 5M of the Note Agreement if the Company delivers an Officer’s Certificate pursuant to the last sentence of the definition of “Leverage Ratio” in the Note Agreement (as amended by this letter agreement) relating to such fiscal quarter by February 10, 2016 and (E) consent to the payment of the December Dividend (as defined below), and Prudential and the holders of the Notes executing this letter agreement are willing to agree to such requests on the terms and conditions set forth herein. Accordingly, and in accordance with the provisions of paragraph 11C of the Note Agreement, the parties hereto agree as follows: SECTION 1. Amendments. From and after the Effective Date (as defined in Section 4 hereof), the parties hereto agree that the Note Agreement is amended as follows: 1.1. Paragraph 10B of the Note Agreement is hereby amended by inserting or amending and restating, as the case may be, the following definitions: “2015 Audited Financial Statements” shall mean the audited financial statements of the Company for the fiscal year ended on March 31, 2015, certified by independent certified public accountants in accordance with paragraph 5A(ii). “Consolidated EBITDAE” for any period of determination shall mean, without duplication, (i) net income, plus, to the extent reducing net income, the sum, of amounts for (a) consolidated interest expense, (b) charges for federal, state, local and foreign income taxes, (c) total depreciation expense, (d) total amortization expense, (e) costs and expenses incurred in connection with the Amendment No. 5 Transactions in an aggregate amount not to exceed $2,100,000, (f) non-cash charges reducing net income for such period, (g) ESOP Compensation, (h) ESOP Dividends on Unallocated Shares, (i) non-cash compensation related to stock options and restricted stock and (j) one-time, nonrecurring expenses incurred during the fiscal quarters ending September 30, 2015, December 31, 2015 and March 31, 2016 related to the restatement of the Transaction - 2 - Parties’ financial statements, minus (ii) non-cash gains increasing net income, in each case of the Company and its Subsidiaries for such period determined and consolidated in accordance with GAAP. For purposes of calculating Consolidated EBITDAE (x) with respect to a business acquired by the Transaction Parties or Subsidiaries thereof pursuant to a Permitted Acquisition, Consolidated EBITDAE shall be calculated on a pro forma basis (determined on a basis consistent with Article 11 or Regulation S-X promulgated under the Securities Act and as interpreted by the staff of the Securities and Exchange Commission), using historical numbers of any business so acquired, in accordance with GAAP as if the Permitted Acquisition had been consummated at the beginning of such period, and (y) with respect to a business or assets liquidated, sold or disposed of by the Transaction Parties or Subsidiaries pursuant to paragraph 6H, Consolidated EBITDAE shall be calculated on a pro forma basis (determined on the basis stated above), using historical numbers of any business or assets so liquidated, sold or disposed of, in accordance with GAAP as if such liquidation, sale or disposition had been consummated at the beginning of such period. “Leverage Ratio” shall mean ratio of consolidated total Indebtedness of the Company and its Subsidiaries (excluding (i) any Indebtedness arising from reimbursement obligations (contingent or otherwise) under standby letters of credit in an aggregate amount not exceeding $10,000,000 and (ii) obligations with respect to interest rate swaps, fuel hedges and other commodity hedging arrangements and related marked-to-market liabilities, but including termination obligations arising by reason of the termination or close out of such interest rate swaps, fuel hedges and other commodity hedge arrangements the value of which being determined as of such time of such termination or close out in accordance with the terms of such agreements) to Consolidated EBITDAE, calculated as of the end of each fiscal quarter for the four fiscal quarters then ended. In connection with the Transaction Parties’ financial statements characterizing the Fleet Leases and Aircraft Leases as capital leases, for purposes of this Agreement the calculation of the Leverage Ratio resulting from such characterization shall only apply to the Leverage Ratio as calculated at the fiscal year ended on March 31, 2015 and at the end of each fiscal quarter thereafter. For the purposes of paragraph 5M of the Note Agreement only, the Leverage Ratio for the fiscal quarters ended on or before September 30, 2015 (but not any fiscal period ending thereafter) shall be calculated by characterizing the Fleet Leases and the Aircraft Leases as operating leases provided that such characterization shall only apply to the fiscal quarters ended on (a) March 31, 2015 and June 30, 2015 if the holders of the Notes receive an Officer’s Certificate no later than the earlier of (x) the date on which the Company delivers the financial statements required by paragraph 5A of the Note Agreement for each such fiscal year or fiscal quarter, as applicable, and (y) March 2, 2016 demonstrating (with computations in reasonable detail) that such Leverage Ratios did not exceed (I) 3.00 to 1.00 for the fiscal quarter ended on March 31, 2015 and (II) 3.15 to 1.00 for the fiscal quarter ended on June 30, 2015 and (b) September 30, 2015 if the holders of the Notes receive the 2015 Audited Financial Statements and an Officer’s Certificate no later than February 10, 2016 demonstrating (with computations in reasonable detail) that such Leverage Ratio did not exceed 3.00 to 1.00 for the fiscal quarter ended on September 30, 2015. - 3 - 1.2. Paragraph 5M of the Note Agreement is hereby amended and restated in its entirety to read as follows: “5M. Excess Leverage Fee. If the Leverage Ratio as of the end of any fiscal quarter is greater than 3.00 to 1.00, then, in addition to accruing interest on the Notes, the Company agrees to pay each holder of a Note a fee (the “Excess Leverage Fee”) on the daily average outstanding principal amount of such Note during such fiscal quarter at a rate per annum of 2.00%, provided that, with respect to the fiscal quarter ended on June 30, 2015, if the 2015 Audited Financial Statements are delivered to each Significant Holder on or prior to February 10, 2016, the Excess Leverage Fee shall not be payable for such fiscal quarter unless the Leverage Ratio as of June 30, 2015 was greater than 3.15 to 1.00. The Excess Leverage Fee with respect to each Note for any fiscal quarter shall be calculated on a rate per annum on the same basis as interest on such Note is calculated and shall be paid in arrears on the 45th day after the end of such fiscal quarter. The payment of any Excess Leverage Fee shall not constitute a waiver of any Default or Event of Default. If for any reason the Company fails to deliver the financial statements required by paragraph 5A hereof for a fiscal quarter by the date the Excess Leverage Fee, if any, would be payable for such fiscal quarter, the an Excess Leverage Fee shall be payable for such fiscal quarter.” SECTION 2. Consents. Effective upon the Effective Date: (a) Prudential and the holders of Notes party hereto consent to (i) an extension of the time period within which the Company is required to deliver the 2015 Audited Financial Statements, the Q1 Quarterly Financial Statements and the Q2 Quarterly Financial Statements, and, in each case, the compliance certificate related thereto pursuant to the penultimate sentence of paragraph 5A of the Note Agreement, until January 31, 2016, and hereby waive any Default or Event of Default resulting solely from the Company’s failure to comply with paragraphs 5A(i) and 5A(ii) of the Note Agreement within the time periods previously provided; provided, however, that, the failure of the Company to deliver the 2015 Audited Financial Statements, the Q1 Quarterly Financial Statements and the Q2 Quarterly Financial Statements and, in each case, the compliance certificate Agreement, to each Significant Holder on or before 11:59 P.M., New York City time, on January 31, 2016, shall constitute a Default under the Note Agreement and an Event of Default upon expiration of the grace period provided for in paragraph 7A(vi) of the Note Agreement. (b) Notwithstanding anything to the contrary contained in the Note Agreement or any prior consent under the Note Agreement, the Excess Leverage Fee, if any, for the fiscal quarters ended on March 31, 2015, June 30, 2015 and September 30, 2015 shall be calculated and paid for each such fiscal quarter on or prior to the Extension Date; provided that, notwithstanding the foregoing, solely for purposes of paragraph 5M of the Note Agreement, in the event the 2015 Audited Financial Statements are not delivered to each Significant Holder on or prior to February 10, 2016, the Excess Leverage Fee shall be conclusively deemed to be applicable for the fiscal quarters ended on June 30, 2015 and September 30, 2015 and such Excess Leverage Fees shall be due and payable on February 10, 2016 for such fiscal quarters. - 4 - (c) On December 15, 2015, the Company paid a quarterly cash dividend of $0.05 per share to its shareholders of record at the close of business on December 1, 2015 (the “December Dividend”). The payment of the December Dividend is not permitted by paragraph 6F of the Note Agreement, and the Company has requested the consent of Prudential and the holders of the Notes to the payment of such December Dividend. Prudential and the holders of the Notes party hereto hereby consent to the payment of the December Dividend. Prudential and the holders of the Notes party hereto hereby waive any Default or Event of Default resulting solely from the Transaction Parties’ non-compliance with paragraph 6F of the Note Agreement with respect to the payment of the December Dividend. (d) The foregoing consents are limited to the specific provisions referenced above and do not constitute a consent to the non-compliance with any other provision of the Note Agreement or any other Transaction Document, nor do such consents indicate any agreement on the part of Prudential or any holder of a Note to grant any such consent in the future, and the foregoing limited waiver shall be limited precisely as written and shall relate solely to the Note Agreement in the manner and to the extent described herein, and nothing in this letter agreement shall be deemed to (i) constitute a consent to or waiver of any Defaults or Events of Default existing under the Note Agreement or the other Transaction Documents (other than in the manner and to the extent described in the foregoing limited waiver), or (ii) prejudice any right or remedy that Prudential or any holder of any Note may now have (after giving effect to the foregoing limited waiver) or may have in the future under or in connection with the Note Agreement or any other Transaction Document. SECTION 3. Representations and Warranties. The Company represents and warrants to Prudential and each holder of a Note that (i) the execution and delivery of this letter agreement has been duly authorized by all necessary corporate action on behalf of the Company and each Guarantor, (ii) this letter agreement has been executed and delivered by a duly authorized officer of the Company and each Guarantor, (iii) the Company and each Guarantor has obtained all authorizations, consents, and approval necessary for the execution, delivery and performance of this letter agreement and such authorizations, consents and approval are in full force and effect, (iv) since March 31, 2015, no Material Adverse Effect shall have occurred with respect to the Company or any of the Guarantors and (v) after giving effect hereto (a) each representation and warranty set forth in paragraph 8 of the Note Agreement is true and correct as of the date of the execution and delivery of this letter agreement by the Company with the same effect as if made on such date (except to the extent that such representations and warranties expressly refer to an earlier date, in which case they were true and correct as of such earlier date and except that the representation and warranty set forth in: (1) paragraph 8D shall be interpreted to be addressing only the Company and its Material Subsidiaries, (2) paragraph 8F shall be interpreted to be addressing only the Company and its Material Subsidiaries and (3) paragraph 8Q shall be interpreted to be addressing only the Company and the Guarantors), (b) no Event of Default or Default exists and (c) neither the Company nor any Subsidiary has paid or agreed to pay, and the Company and its Subsidiaries will not pay or agree to pay, any fees or other - 5 - consideration to the Bank Agent, any Bank or any lender under the Mexicana Credit Agreement for or with respect to the amendments to the Credit Agreement or the Mexicana Credit Agreement referred to in Section 4.2 below other than the legal fees paid to counsel for the Banks, Bank Agent and such lenders and the amendment fee referred to in Section 5 of the amendment to the Credit Agreement referred to in Section 4.2(a) below. SECTION 4. Conditions Precedent. The amendments in Section 1 and consents in Section 2 of this letter agreement shall become effective on the date (the “Effective Date”) that each of the following conditions has been satisfied: 4.1. Documents. Prudential and each holder of a Note shall have received counterparts of this letter agreement executed by Prudential, the Required Holder(s), the Company and each Guarantor. 4.2. Credit Agreement and Mexicana Credit Agreement. Prudential and each holder of a Note shall have received an executed copy of an amendment to each of (a) the Credit Agreement and (b) the Mexicana Credit Agreement, each in form and substance consistent with the terms set forth herein and satisfactory to Prudential and the Required Holder(s). 4.3. Representations. All statements set forth in Section 3 shall be true and correct as of the Effective Date, except to the extent that any such statement expressly relates to an earlier date (in which case such statement was true and correct on and as of such earlier date). 4.4. Proceedings. All corporate and other proceedings taken or to be taken in connection with the transactions contemplated by this letter agreement shall be satisfactory to Prudential and each holder of a Note and its counsel, and Prudential and each holder of a Note shall have received all such counterpart originals or certified or other copies of such documents as they may reasonably request. SECTION 5. Reference to and Effect on Note Agreement; Ratification of Note Agreement. Upon the effectiveness of the amendments and consents to the Note Agreement made in this letter agreement, each reference to the Note Agreement in any other document, instrument or agreement shall mean and be a reference to the Note Agreement as modified by this letter agreement. Except as specifically set forth in Sections 1 and 2 hereof, the Note Agreement shall remain in full force and effect and is hereby ratified and confirmed in all respects. Except as specifically stated in this letter agreement, the execution, delivery and effectiveness of this letter agreement shall not (a) amend the Note Agreement or any Note, (b) operate as a waiver of any right, power or remedy of any holder of a Note, or (c) constitute a waiver of, or consent to any departure from, any provision of the Note Agreement or Note at any time. Nothing contained in this letter agreement shall be construed as a course of dealing or other implication that Prudential and any holder of a Note has agreed to or is prepared to grant any consents or agree to any amendments to the Note Agreement or any Note in the future, whether or not under similar circumstances. SECTION 6. Expenses. The Company hereby confirms its obligations under the Note Agreement, whether or not the transactions hereby contemplated are consummated, to pay, promptly after request by Prudential or any holder of a Note, all reasonable out-of-pocket costs - 6 - and expenses, including attorneys’ fees and expenses, incurred by Prudential or such holder of a Note in connection with this letter agreement or the transactions contemplated hereby, in enforcing any rights under this letter agreement, or in responding to any subpoena or other legal process or informal investigative demand issued in connection with this letter agreement or the transactions contemplated hereby. The obligations of Company under this Section 6 shall survive transfer by any holder of a Note of any Note and payment of any Note. SECTION 7. Governing Law. THIS LETTER AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW YORK (EXCLUDING ANY CONFLICTS OF LAW RULES WHICH WOULD OTHERWISE CAUSE THIS AGREEMENT TO BE CONSTRUED OR ENFORCED IN ACCORDANCE WITH, OR THE RIGHTS OF THE PARTIES TO BE GOVERNED BY, THE LAWS OF ANY OTHER JURISDICTION). SECTION 8. Reaffirmation. Each Guarantor hereby consents to the foregoing amendments and consents to the Note Agreement and hereby ratifies and reaffirms all of their payment and performance obligations, contingent or otherwise, under the Guaranty Agreement after giving effect to such amendments and consents. Each Guarantor hereby acknowledges that, notwithstanding the foregoing amendments and consents, that the Guaranty Agreement remains in full force and effect and is hereby ratified and confirmed. Without limiting the generality of the foregoing, each Guarantor agrees and confirms that the Guaranty Agreement continues to guaranty the Guarantied Obligations (as defined in the Guaranty Agreement) arising under or in connection with the Note Agreement or any of the Shelf Notes, as the same are amended by this letter agreement. SECTION 9. Counterparts; Section Titles. This letter agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which when taken together shall constitute but one and the same instrument. Delivery of an executed counterpart of a signature page to this letter agreement by facsimile shall be effective as delivery of a manually executed counterpart of this letter agreement. The section titles contained in this letter agreement are and shall be without substance, meaning or content of any kind whatsoever and are not a part of the agreement between the parties hereto. - 7 - Very Truly Yours, PRUDENTIAL INVESTMENT MANAGEMENT, INC. By: /s/ David Quackenbush Vice President THE PRUDENTIAL INSURANCE COMPANY OF AMERICA By: Vice President PRUDENTIAL RETIREMENT INSURANCE AND ANNUITY COMPANY By: Prudential Investment Management, Inc., as investment manager By: Vice President PRUCO LIFE INSURANCE COMPANY By: Vice President AMENDMENT NO. 9 AND CONSENT TO AMENDED AND RESTATED PRIVATE SHELF AGREEMENT Accepted and Agreed: COMPANY: ADVANCED DRAINAGE SYSTEMS, INC. By: /s/ Mark B. Sturgeon Name: Mark B. Sturgeon Title: Executive Vice President GUARANTORS: STORMTECH LLC HANCOR HOLDING CORPORATION By: Name: Mark B. Sturgeon Title: Secretary and Treasurer
Title: Intoxicated friend hit and run, left me in the car Question:This was a month ago, in Texas. I went out with friends, had way too much to drink and wanted to Uber home and leave my car. My friends acting in good faith didn’t want for me to leave my car so far from home, since I had to work the next day. I don’t even remember getting into my car, my friend says he had to help me. I was in the passenger seat, he was driving, he was intoxicated but not as bad as I was. I never said you could drive me, this was his decision. Two other cars with friends were following behind. At some point he veered into the next lane and struck a car. No one was injured in either car. He pulled over and spoke with the other driver. I was passed out in the passenger seat. The other friends stopped their cars, to check on us. He was afraid he would be arrested for DUI, so he got into another car and left. His girlfriend was not intoxicated, she was in the car he drove off in and she stayed with me and waited for the police to arrive, then told the police that she was driving my car. The driver of the other vehicle in the accident told the police that she was not the driver, that I was also not the driver, but that another guy was and he left in another car. The police officers questioned me, I was too drunk to give an answer the police determined. The girlfriend stuck to her story after being questioned. The police didn’t believe her. He drove us both to my house and didn’t arrest anyone and didn’t charge me or give me any citation. He gave her a case number and said there will be an investigation, he told her there are witnesses. The other driver gave a description The next day I woke up, didn’t have a good recollection of the previous night’s events. I remembered being way drunk, being put into my car, then nothing, then police questioning me, and not knowing what was going on. The girlfriend of the hit and run guy drove me to the impound lot and paid the fee to take my car out. She filled me in on some details but I’m sure she’s not telling me everything. I do not want to get into legal trouble. I was an idiot for drinking too much that night. I am responsible for my own actions, for drinking too much and putting myself in this situation. I wanted to Uber home, but was lead into their plans. Is it illegal to be a drunk passenger in my own car? Can I be sued by the other party? Now that I know a crime was committed, do I have an legal obligation to turn him into the police? If questioned I will not lie, I will tell the police what I know, rather what I’ve been told happened that night since I have no good recollection. Part of me wants to contact the police and tell them the whole story, part of me wonders if the investigation will never take off since I have not been questioned or contacted maybe I should leave it alone, let the chips fall where they may, as long as I am not in legal trouble or civil liability. What it comes down to for me is that I am not held responsible legally or financially for his hit and run or her false statement to the police. Answer #1: If your car was in an accident while you were a passenger your insurance is likely to pay that claim. There could conceivably be involvement if the driver’s liability insurance if he has it and that driver is identified. You are not legally obligated to identify the driver or report his crimes. You may have an obligation under your insurance policy to tell what you know of the event. And are a witness and likely a defendant in any civil litigation arising from these events. If the damages exceed your policy or if you’re accused of a crime you may need a lawyer.
Title: [IN] Daycare provider continually refuses to give my brother his child during his parenting time. Question:The DCP is an old family friend of my brothers ex (girlfriend, they never married), and has aided the ex in delaying, or occasionally outright refusing, his parental time. She also (occasionally) refuses to release the child to my brothers wife, stating she allegedly is following some kind of order. She has not and will not show him this order (because it doesn't exist). The daycare is on residential property and today she sent her SO outside to threaten and intimidate my brother out of picking up his child when they refused pickup to my brothers wife. This is after the court determined she had equal parenting rights to the child as my brother. He has had one shit lawyer after another, and has severely limited funds due to years of fighting for what little parenting time he currently had. This current issue is riding in on the coat tails of the ex being very recently dumped by her SO, so I imagine she is lashing out more so than usual. Over the years, she has lied, ignored the court-appointed parenting time, refused to give him the child over and over, physically assaulted my brother in front of the child then lied, had her parents lie and accuse him when police arrived, and has ,without a doubt as it was recorded, caused some degree of parental alienation. She has never gotten so much as a slap on the wrist. The daycare provider has been in on all of this since day 1. She has called up the ex's sister to come get the child and tide around town hiding before my brother could (her sister is not on the pickup list). She has denied his right of first refusal by calling the ex when my brother finds out the child is at daycare on his days off so he ex will pick up the child before he can get there. She calls the cops when he has shown up a few minutes early to avoid her doing all of that saying he cannot legally pick up the child until it is his time. He intends to sue the daycare provider, and I want to make sure he has as much helpful legal advice as he can get. My questions- can he legally sue the daycare provider? If so, what for? Could the ex be included? How can these actions and behaviors continue with zero legal ramifications on their behalf? Topic: Custody Divorce and Family Answer #1: Get an attorney. I see two paths: Have the custodial parent held in contempt of court. And/or have the parenting plan modified to exclude the daycare providers home as an exchange point. I would not sue the daycare provider. A line needs to be drawn. The parenting plan needs to be followed, as written, or modified. Failure to do so should result in an attorney filing contempt motions. Period. Stop the self help drama here and have an attorney enforce the parenting plan.Answer #2: He should carry the court order and call the police when they will not release the child to him. No, he can not sue anyone. He needs to document each of these instances and take her back to court to hold her accountable. Answer #3: My husband and I have this drama with his daughter’s mom as well. I carry a copy of the order with me at all times and can (and have) called the non emergency police number for them to see the order and prove my right to pick up. Here in Texas there is a designated number for parents or pick up ppl to call if the child is not being handed off. It works for us!
SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 6-K REPORT OF FOREIGN ISSUER PURSUANT TO RULE 13a-16 OR 15d-16 OF THE SECURITIES EXCHANGE ACT OF 1934 For the month of February, 2013 (Commission File No. 001-32221) , GOL LINHAS AÉREAS INTELIGENTES S.A. (Exact name of registrant as specified in its charter) GOL INTELLIGENT AIRLINES INC. (Translation of Registrant's name into English) Praça Comandante Linneu Gomes, Portaria 3, Prédio 24 Jd. Aeroporto 04630-000 São Paulo, São Paulo Federative Republic of Brazil (Address of Regristrant's 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 X Form 40-F Indicate by check mark whether the registrant by furnishing the information contained in this Form is also thereby furnishing the information to the Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of 1934. Yes No X If "Yes" is marked, indicated below the file number assigned to the registrant in connection with Rule 12g3-2(b): GOL LINHAS AÉREAS INTELIGENTES S.A. C.N.P.J. n.º 06.164.253/0001-87 N.I.R.E. 35.300.314.441 MINUTES OF THE BOARD OF DIRECTORS’ MEETING HELD ON FEBRUARY 04, 2013 Date, Time and Place : February 04, 2013, at 06:00 p.m., on Praça Comte. Linneu Gomes, S/N, Portaria 3 – Prédio 15 – Meeting Room of the Board of Directors, Jardim Aeroporto, São Paulo/SP (“Company”). Attendance : All the members of the Board of Directors of the Company. Chairmanship of the Meeting : Chairman: Mr. Constantino de Oliveira Júnior, Secretary: Claudia Karpat; Call Notice : Waived, due to the attendance of all the members of the Board of Directors. Agenda : To pass resolutions about the following items: (a) approval of an increase in the Company’s capital stock; (b) approval of the transfer of up to two hundred million Reais (R$200,000,000.00) from the Company to its controlled company, VRG Linhas Aéreas (“VRG”) by way of advance for future increase of capital of VRG; (c) granting of guarantee on behalf of the controlled company, in a capital market transaction; and (d) granting of guarantee from the Company to VRG, in the 5 th issue of debentures of VRG, dated June 03, 2011; and (e) granting of powers to the Board of the Officers. Resolutions made : After the necessary explanations were provided, and after a detailed review of the Financial Statements and other documents referring to the matters of the agenda, the following resolutions were approved by unanimous vote: (a) approval of an increase in the Company’s capital stock, within the limit of the authorized capital, in the amount of one million, eight hundred and eighty-four thousand, eight hundred and one reais and sixty cents (R$ 1,884,801.60), upon issue of one hundred and forty-four thousand, five hundred and forty (144,540) preferred shares, all of them registered and with no face value, arising out of the exercise of a stock purchase option granted under the Company´s Options Plan preceding the current. Accordingly, the Company’s capital stock was increased to two billion, five hundred and one million, five hundred and seventy-three thousand, six hundred and twenty-eight reais and twenty-one cents (R$2,501,573,628.21), represented by one hundred and forty-three million, eight hundred and fifty-eight thousand, two hundred and four (143,858,204) common shares and one hundred and thirty-five million, three thousand, one hundred and twenty-two (135,003,122) preferred shares, all of them registered and with no face value. The shares now issued are identical to the existing shares and, under the terms of the Options Plan, shall be entitled to the same rights attached to the other shares of the same kind, including receipt of dividends and interest on the own capital: (i) exclusion of the preemptive right of the current shareholders of the Company in the subscription of the new preferred shares was approved, in conformity with the provisions in Article 171, paragraph three, of the Corporations Act; and (ii) the total issue price was determined as R$1,884,801.60; (b) approval of the transfer of up to two hundred million Reais (R$200,000,000.00) from the Company to its controlled company, VRG Linhas Aéreas (“VRG”) by way of advance for future increase of capital of VRG – AFAC, which amount shall be capitalized by VRG at the earliest opportunity; (c) granting of guarantee on behalf of VRG, in financial transactions in the capital market; and (d) granting of guarantee from the Company to VRG, in the 5 th issue of simple, non-convertible, sole series, unsecured debentures, dated June 03, 2011, in which VRG is the issuer, and (e) by reason of the resolutions passed as per “b”, “c” and “d” above, the Board of Directors authorize the Board of the Officers of the Company to take the necessary actions and execute the necessary documents for the compliance with the foregoing, including to confirm documents that may have been already executed, in connection with the matters of the agenda approved hereby. Adjournment of the Meeting and Drawing-up of the Minutes : The floor was offered to whom might wish to use it, and as nobody voiced the intention to do so, the meeting was adjourned for the time necessary for the drawing-up of these minutes, which upon the reopening of the meeting were read, checked and signed by the attendees. I hereby certify that this is a faithful copy of the minutes, which were drawn-up in the proper book. 1 São Paulo, February 04, 2013. Constantino de Oliveira Junior Chairman Claudia Karpat Secretary 2 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. Date:February 4, 2012 GOL LINHAS AÉREAS INTELIGENTES S.A. By: /S/Edmar Prado Lopes Neto Name:Edmar Prado Lopes Neto Title:Investor Relations Officer FORWARD-LOOKING STATEMENTS This press release may contain forward-looking statements. These statements are statements that are not historical facts, and are based on management's current view and estimates offuture economic circumstances, industry conditions, company performance and financial results. The words "anticipates", "believes", "estimates", "expects", "plans" and similar expressions, as they relate to the company, are intended to identify forward-looking statements. Statements regarding the declaration or payment of dividends, the implementation of principal operating and financing strategies and capital expenditure plans, the direction of future operations and the factors or trends affecting financial condition, liquidity or results of operations are examples of forward-looking statements. Such statements reflect the current views of management and are subject to a number of risks and uncertainties. There is no guarantee that the expected events, trends or results will a ctually occur. The statements are based on many assumptions and factors, including general economic and market conditions, industry conditions, and operating factors. Any changes in such assumptions or factors could cause actual results to differ materially from current expectations.
Title: (TN, USA) My boss changed my time sheet from 49 hours down to 40 and did not pay me for the 9 hours. What should I do that I'm not doing already? Question:I have read up on the topic myself and I know that time clock fraud is illegal and since Tennessee has no overtime laws, they follow federal law which states time and a half for any amount of overtime, in my case 9 hours at $15 an hour. My general manager changed it to where I didn't even get paid my regular 9 hours at $10 an hour. I know that I need proof and I have a copy of the schedule that includes the day she erased, but not one for the rest of the days on the time sheet for that week and we have security cameras that record but how would I go about getting access to those for further proof that I was here on all of those days? Also who do I contact about this besides her? I have discussed with her and she seems to think that nothing is wrong. Answer #1: File a complaint with US Dept of Labor, wage and hour division. The agency can bring a world of hurt.Answer #2: And you don't need proof. The burden of proof is on the employer. There is an inherent imbalance of power in that relationship.
Title: [CA] I'm a manager at a restaurant. One of my employees has been getting sexually harassed at school. What can I do to protect her? Question:I'm a manager at a small mom-and-pop shop located in the Los Angeles/Orange County area. One of my employees currently attends a high school near the area, and after working together for nearly a year now, we've become pretty good friends. A few months ago, she was telling me about her day at school, and she mentioned that a freshman (she's a senior) had been sexually harassing her on a pretty frequent basis. List of things he's done includes: grabbing her hand and kissing it, whispering inappropriate things into her ear (including but not limited to: "I wanna fuck you so badly", "You're looking hella thick today", "You look so sexy, it's turning me on"), touching her feet when she wore open-toed shoes, grabbing her waist from behind, and touching the inside of her thigh near her crotch. When I heard of this, I told her to report what he's done to their instructor immediately, and she did. She then told me that he got off with nothing more than a slap on the wrist and a verbal warning. As outraged as I was, it seemed like whatever the instructor had said to him was quite effective, as she told me he had more or less left her alone for the past 2 months. Today, she was telling me that he had touched her inappropriately again, this time asking if she felt uncomfortable as he grabbed the inside of her thigh. After she told him off for touching her inappropriately, he responded with "Damn you have some fucking weird legs". After hearing this, I'm honestly considering taking legal action against him an/or his parents. What can I legally do to protect my employee? Answer #1: You have done what you can do which is to advise her to report every infraction to someone at her school.Answer #2: >After hearing this, I'm honestly considering taking legal action against him an/or his parents. What are you talking about? You have absolutely zero standard here. You are not involved in this. You cannot "take legal action" against anyone concerned here. You can encourage her to talk to her parents or the school authorities. Other than that, butt out. This is not your business. Stop playing white knight. It's completely inappropriate, as is being "friends" with an employee in high school.
Exhibit 31.2 CERTIFICATION I, Roger P. Deschenes, hereby certify that: 1.I have reviewed this Annual Report on Form 10-K of Implant Sciences Corporation (the “Company”); 2.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; 3.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 we as of, and for, the periods presented in this report; 4.Our other certifying officer and I are responsible for establishing and maintaining 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 15d-15(f)) for the registrant and have: a.Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including our consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; b.Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our 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; c.Evaluated the effectiveness of our disclosure controls and procedures and presented in this report our conclusions 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 d.Disclosed in this report any change in our internal control over financial reportingthat occurred during our most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting; and 5.Our other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to our auditors and the audit committee of our board of directors (or persons performing the equivalent functions): a.All significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting which are reasonably likely to adversely affect the small business issuer’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 small business issuer’s internal control over financial reporting. Date: February 14, 2011 /s/ Roger P. Deschenes Roger P. Deschenes Vice President, Finance and Chief Financial Officer (Principal Financial Officer and Principal AccountingOfficer)
JOHN HANCOCK FUNDS II 601 Congress Street Boston, Massachusetts 02210 July 25, 2016 VIA EDGAR TRANSMISSION Securities and Exchange Commission treet, N.E. Washington, DC 20549 RE: John Hancock Funds II (the “Trust”) on behalf of: John Hancock Retirement Living through 2055 Portfolio John Hancock Retirement Living through 2050 Portfolio John Hancock Retirement Living through 2045 Portfolio John Hancock Retirement Living through 2040 Portfolio John Hancock Retirement Living through 2035 Portfolio John Hancock Retirement Living through 2030 Portfolio John Hancock Retirement Living through 2025 Portfolio John Hancock Retirement Living through 2020 Portfolio John Hancock Retirement Living through 2015 Portfolio John Hancock Retirement Living through 2010 Portfolio (the “Funds”) File Nos. 333-126293; 811-21779 Ladies and Gentlemen: On behalf of the Trust, transmitted for filing pursuant to Rule 497 under the Securities Act of 1933, as amended, are exhibits containing interactive data format risk/return summary information for the Funds. The interactive data files included as exhibits to this filing relate to the prospectus supplement filed with the Securities and Exchange Commission on July 1, 2016 on behalf of the Funds pursuant to Rule 497(e) (Accession No. 0001133228-16-010653), each of which is incorporated by reference into this Rule 497 Document. If you have any questions or comments, please call me at (617) 663-4311. Sincerely, /s/ Thomas Dee Thomas Dee Assistant Secretary Exhibit Index EX-101.INS XBRL Instance Document EX-101.SCH XBRL Taxonomy Extension Schema Document EX-101.CAL XBRL Taxonomy Extension Calculation Linkbase Document EX-101.LAB XBRL Taxonomy Extension Labels Linkbase Document EX-101.PRE XBRL Taxonomy Extension Presentation Linkbase Document EX-101.DEF XBRL Taxonomy Extension Definition Linkbase Document
- Generated by Worth Higgins & Associates Exhibit 31.2 CERTIFICATION I, Bryan Peery, certify that: 1. I have reviewed this report on Form 10-Q of Apple REIT Six, Inc.; 2. 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; 3. 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; 4. The registrants other certifying officer and I are responsible for establishing and maintaining 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 15d-15(f)) for the registrant and have: a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding thereliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; c) Evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as ofthe end of the period covered by this report based on such evaluation; and d) Disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in thecase of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and 5. The registrants other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of the registrants 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 registrants 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 registrants internal control over financial reporting. Date: May 4, 2009 /s/ B RYAN P EERY Bryan Peery Chief Financial Officer Apple REIT Six, Inc.
EXHIBIT 10.2 NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS CONVERTIBLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY. THIS SECURITY AND THE SECURITIES ISSUABLE UPON CONVERSION OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES. Original Issue Date: April 8, 2015 Principal Amount: $26,250.00 Purchase Price: $25,000.00 5% ORIGINAL ISSUE DISCOUNT SENIOR SECURED CONVERTIBLE PROMISSORY NOTE DUE APRIL 8, 2016 THIS 5% ORIGINAL ISSUE DISCOUNT SENIOR SECURED CONVERTIBLE PROMISSORY NOTE is a duly authorized and validly issued 5% Original Issue Discount Senior Secured Convertible Promissory Note of DirectView Holdings, Inc., a Nevada corporation (the “Company” or the “Borrower”), having its principal place of business at 21218 Saint Andrews Blvd., Suite 323, Boca Raton, FL 33433, designated as its 5% Original Issue Discount Senior Secured Convertible Promissory Note due April 8, 2016 (the “Note”). FOR VALUE RECEIVED, the Company promises to pay to or its registered assigns (the “Holder”), or shall have paid pursuant to the terms hereunder, the principal sum of $26,250.00 on April 8, 2016 (the “Maturity Date”) or such earlier date as this Note is required or permitted to be repaid as provided hereunder, and to pay interest to the Holder on the aggregate unconverted and then outstanding principal amount of this Note in accordance with the provisions hereof. This Note is subject to the following additional provisions: 1 Section 1. Definitions. For the purposes hereof, in addition to the terms defined elsewhere in this Note, (a) capitalized terms not otherwise defined herein shall have the meanings set forth in the Purchase Agreement and (b) the following terms shall have the following meanings: “Alternate Consideration” shall have the meaning set forth in Section 5(e). “Alternate Conversion Price” means 55% of the lowest traded price during the 25 Trading Day-period immediately prior to the applicable Conversion Date. “Amortization Conversion Rate” means the lower of the Conversion Price or 75% of the lowest VWAP for the 10 consecutive Trading Days ending on the Trading Day that is immediately prior to the applicable Amortization Payment Date. “Amortization Payment” shall have the meaning set forth in Section 2(d). “Amortization Payment Date” shall have the meaning set forth in Section 2(d). “Bankruptcy Event” means any of the following events: (a) the Company or any Significant Subsidiary (as such term is defined in Rule 1-02(w) of Regulation S-X) thereof commences a case or other proceeding under any bankruptcy, reorganization, arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or liquidation or similar law of any jurisdiction relating to the Company or any Significant Subsidiary thereof, (b) there is commenced against the Company or any Significant Subsidiary thereof any such case or proceeding that is not dismissed within 60 days after commencement, (c) the Company or any Significant Subsidiary thereof is adjudicated insolvent or bankrupt or any order of relief or other order approving any such case or proceeding is entered, (d) the Company or any Significant Subsidiary thereof suffers any appointment of any custodian or the like for it or any substantial part of its property that is not discharged or stayed within 60 calendar days after such appointment, (e) the Company or any Significant Subsidiary thereof makes a general assignment for the benefit of creditors, (f) the Company or any Significant Subsidiary thereof calls a meeting of its creditors with a view to arranging a composition, adjustment or restructuring of its debts or (g) the Company or any Significant Subsidiary thereof, by any act or failure to act, expressly indicates its consent to, approval of or acquiescence in any of the foregoing or takes any corporate or other action for the purpose of effecting any of the foregoing. “Base Conversion Price” shall have the meaning set forth in Section 5(b). “Beneficial Ownership Limitation” shall have the meaning set forth in Section 4(d). “Business Day” means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or any day on which banking institutions in the State of New York are authorized or required by law or other governmental action to close. 2 “Buy-In” shall have the meaning set forth in Section 4(c)(v). “Change of Control Transaction” means the occurrence after the date hereof of any of (a) an acquisition after the date hereof by an individual or legal entity or “group” (as described in Rule 13d-5(b)(1) promulgated under the Exchange Act) of effective control (whether through legal or beneficial ownership of capital stock of the Company, by contract or otherwise) of in excess of 33% of the voting securities of the Company (other than by means of conversion or exercise of the Note and the Securities issued together with the Note), (b) the Company merges into or consolidates with any other Person, or any Person merges into or consolidates with the Company and, after giving effect to such transaction, the stockholders of the Company immediately prior to such transaction own less than 66% of the aggregate voting power of the Company or the successor entity of such transaction, (c) the Company sells or transfers all or substantially all of its assets to another Person and the stockholders of the Company immediately prior to such transaction own less than 66% of the aggregate voting power of the acquiring entity immediately after the transaction, (d) a replacement at one time or within a three year period of more than one-half of the members of the Board of Directors which is not approved by a majority of those individuals who are members of the Board of Directors on the Original Issue Date (or by those individuals who are serving as members of the Board of Directors on any date whose nomination to the Board of Directors was approved by a majority of the members of the Board of Directors who are members on the date hereof), or (e) the execution by the Company of an agreement to which the Company is a party or by which it is bound, providing for any of the events set forth in clauses (a) through (d) above. “Conversion” shall have the meaning ascribed to such term in Section 4. “Conversion Date” shall have the meaning set forth in Section 4(a). “Conversion Price” shall have the meaning set forth in Section 4(b). “Conversion Schedule” means the Conversion Schedule in the form of Schedule 1 attached hereto. “Conversion Shares” means, collectively, the shares of Common Stock issuable upon conversion of this Note in accordance with the terms hereof. “Dilutive Issuance” shall have the meaning set forth in Section 5(b). “Dilutive Issuance Notice” shall have the meaning set forth in Section 5(b). “DTC” means the Depository Trust Company. “DTC/FAST Program” means the DTC’s Fast Automated Securities Transfer Program. 3 “DWAC” means Deposit Withdrawal at Custodian as defined by the DTC. “DWAC Eligible” means that (a) the Common Stock is eligible at DTC for full services pursuant to DTC’s Operational Arrangements, including without limitation transfer through DTC’s DWAC system, (b) the Company has been approved (without revocation) by the DTC’s underwriting department, (c) the Transfer Agent is approved as an agent in the DTC/FAST Program, (d) the Conversion Shares are otherwise eligible for delivery via DWAC, and (e) the Transfer Agent does not have a policy prohibiting or limiting delivery of the Conversion Shares via DWAC. “Equity Conditions” means, during the period in question, (a) the Company shall have duly honored all conversions and redemptions scheduled to occur or occurring by virtue of one or more Notices of Conversion of the Holder, if any, (b) the Company shall have paid all liquidated damages and other amounts owing to the Holder in respect of this Note, (c) all of the Conversion Shares issuable pursuant to the Transaction Documents (and shares issuable in lieu of cash payments of interest) may be resold pursuant to Rule 144 without volume or manner-of-sale restrictions or current public information requirements as determined by the counsel to the Company as set forth in a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the Holder, (d) the Common Stock is trading on a Trading Market and all of the shares issuable pursuant to the Transaction Documents are listed or quoted for trading on such Trading Market (and the Company believes, in good faith, that trading of the Common Stock on a Trading Market will continue uninterrupted for the foreseeable future), (e) there is a sufficient number of authorized but unissued and otherwise unreserved shares of Common Stock for the issuance of all of the shares then issuable pursuant to the Transaction Documents, (f) there is no existing Event of Default and no existing event which, with the passage of time or the giving of notice, would constitute an Event of Default, (g) the issuance of the shares in question to the Holder would not violate the limitations set forth in Section 4(d) herein, (h) there has been no public announcement of a pending or proposed Fundamental Transaction or Change of Control Transaction that has not been consummated, (i) the applicable Holder is not in possession of any information provided by the Company that constitutes, or may constitute, material non-public information, (j) for each Trading Day in question, the daily dollar trading volume for the Common Stock on the principal Trading Market exceeds $70,000 per Trading Day and (i) the Company’s Common Stock must be DWAC Eligible. “Event of Default” shall have the meaning set forth in Section 6(a). “Fundamental Transaction” shall have the meaning set forth in Section 5(e). “Late Fees” shall have the meaning set forth in Section 2(d). “Make-Whole Amount” means, with respect to the applicable date of determination, an amount in cash equal to all of the interest that, but for the applicable conversion or default payment, would have accrued pursuant to Section 2 with respect to the applicable principal amount being so converted or redeemed for the period commencing on the applicable redemption date or Conversion Date or 4 “Mandatory Default Amount” means either, at the Holder’s discretion (i) the conversion of the outstanding principal amount of this Note, plus all accrued and unpaid interest hereon, converted at the Alternative Conversion Price or (ii) the payment 125% of the outstanding principal amount of this Note and accrued and unpaid interest hereon, in addition to, for both (i) and (ii) above, the payment of (a) all other amounts, costs, expenses and liquidated damages due in respect of this Note and (b) the Make-Whole Amount. “New York Courts” shall have the meaning set forth in Section 7(d). “Note Register” shall have the meaning set forth in Section 2(c). “Notice of Conversion” shall have the meaning set forth in Section 4(a). “Original Issue Date” means the date of the first issuance of the Note, regardless of any transfers of any Note and regardless of the number of instruments which may be issued to evidence such Note. “Permitted Indebtedness” means the indebtedness evidenced by the Note. “Permitted Lien” means the individual and collective reference to the following: (a) Liens for taxes, assessments and other governmental charges or levies not yet due or Liens for taxes, assessments and other governmental charges or levies being contested in good faith and by appropriate proceedings for which adequate reserves (in the good faith judgment of the management of the Company) have been established in accordance with GAAP, (b) Liens imposed by law which were incurred in the ordinary course of the Company’s business, such as carriers’, warehousemen’s and mechanics’ Liens, statutory landlords’ Liens, and other similar Liens arising in the ordinary course of the Company’s business, and which (x) do not individually or in the aggregate materially detract from the value of such property or assets or materially impair the use thereof in the operation of the business of the Company and its consolidated Subsidiaries or (y) are being contested in good faith by appropriate proceedings, which proceedings have the effect of preventing for the foreseeable future the forfeiture or sale of the property or asset subject to such Lien and (c) Liens incurred in connection with Permitted Indebtedness. “Purchase Agreement” means the Securities Purchase Agreement, dated as of April 8, 2015 among the Company and the original Holders, as amended, modified or supplemented from time to time in accordance with its terms. regulations promulgated thereunder. 5 “Share Delivery Date” shall have the meaning set forth in Section 4(c)(ii). “Successor Entity” shall have the meaning set forth in Section 5(e). “Trading Day” means a day on which the principal Trading Market is open for trading. “Trading Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the NYSE MKT, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock Exchange or the OTC Bulletin Board (or any successors to any of the foregoing). “VWAP” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if the OTC Bulletin Board is not a Trading Market, the volume weighted average price of the Common Stock for such date (or the nearest preceding date) on the OTC Bulletin Board, (c) if the Common Stock is not then listed or quoted for trading on the OTC Bulletin Board and if prices for the Common Stock are then reported in the “Pink Sheets” published by Pink OTC Markets, Inc. (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good faith by the Holders of a majority in interest of the Securities then outstanding and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company. Section 2. Amortization and Interest. a) Payment of Interest in Cash or Kind. The Company shall pay interest to the Holder on the aggregate unconverted and then outstanding principal amount of this Note at the rate of 10% per annum, which twelve (12) months’ interest amount shall be guaranteed, payable on each Conversion Date (as to that principal amount then being converted) and on the Maturity Date in cash or, at the Company’s option, in duly authorized, validly issued, fully paid and non-assessable shares of Common Stock or a combination thereof. b) Interest Calculations. Interest shall be calculated on the basis of a 360-day year, consisting of twelve 30 calendar day periods, and shall accrue daily commencing on the Original Issue Date until payment in full of the outstanding principal, together with all accrued and unpaid interest, liquidated damages and other amounts which may become due hereunder, has been made. Payment of interest in shares of Common Stock shall otherwise occur pursuant to Section 4(c)(ii) herein. Interest hereunder will be paid to the Person in whose name this Note is registered on the records of the Company regarding registration and transfers of this Note (the “Note Register”). Except as otherwise provided herein, if at any time the Company pays interest partially in cash and partially in shares of Common Stock to the holder of the Note, then such payment of cash shall be distributed ratably among the holders of the then-outstanding Note based on their (or their predecessor’s) initial purchases of Note pursuant to the Purchase Agreement. 6 c) Late Fee. All overdue accrued and unpaid interest to be paid hereunder shall entail a late fee at an interest rate equal to the lesser of 18% per annum or the maximum rate permitted by applicable law (the “Late Fees”) which shall accrue daily from the date such interest is due hereunder through and including the date of actual payment in full. d) Amortization Payments. Starting on the sixth (6th) month after the Original Issue Date and continuing on each of the following six (6) months thereafter (each an “Amortization Payment Date”), the Borrower shall redeem one-twelfth (1/12th) of the face amount of this Note and guaranteed interest (each, an “Amortization Payment”) in accordance with the attached Amortization Schedule (Appendix A). Each Amortization Payment shall, at the option of the Holder, be made in cash or, subject to the Borrower complying with the Equity Conditions be made in Common Stock pursuant to the Amortization Conversion Rate. e) Prepayment. Prior to the six (6) month anniversary of the Original Issue Date, upon ten (10) days written notice to the Holder, the Company may prepay any portion of the principal amount of this Note and any accrued and unpaid interest. If the Borrower exercises its right to prepay the Note, the Borrower shall make payment to the Holder of an amount in cash equal to the sum of the then outstanding principal amount of this Note and guaranteed interest. The Holder may continue to convert the Note from the date notice of the prepayment is given until the date of the prepayment. Section 3. Registration of Transfers and Exchanges. a) Different Denominations. This Note is exchangeable for an equal aggregate principal amount of Notes of different authorized denominations, as requested by the Holder surrendering the same. No service charge will be payable for such registration of transfer or exchange. b) Investment Representations. This Note has been issued subject to certain investment representations of the original Holder set forth in the Purchase Agreement and may be transferred or exchanged only in compliance with the Purchase Agreement and applicable federal and state securities laws and regulations. c) Reliance on Note Register. Prior to due presentment for transfer to the Company of this Note, the Company and any agent of the Company may treat the Person in whose name this Note is duly registered on the Note Register as the owner hereof for the purpose of receiving payment as herein provided and for all other purposes, whether or not this Note is overdue, and neither the Company nor any such agent shall be affected by notice to the contrary. 7 Section 4. Conversion. a) Voluntary Conversion. At any time after the Original Issue Date until this Note is no longer outstanding, this Note shall be convertible, in whole or in part, into shares of Common Stock at the option of the Holder, at any time and from time to time (subject to the conversion limitations set forth in Section 4(d) hereof). The Holder shall effect conversions by delivering to the Company a Notice of Conversion, the form of which is attached hereto as Annex A (each, a “Notice of Conversion”), specifying therein the principal amount of this Note to be converted and the date on which such conversion shall be effected (such date, the “Conversion Date”). If no Conversion Date is specified in a Notice of Conversion, the Conversion Date shall be the date that such Notice of Conversion is deemed delivered hereunder. No ink-original Notice of Conversion shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Conversion form be required. To effect conversions hereunder, the Holder shall not be required to physically surrender this Note to the Company unless the entire principal amount of this Note, plus all accrued and unpaid interest thereon, has been so converted. Conversions hereunder shall have the effect of lowering the outstanding conversion. The Holder and the Company shall maintain records showing the principal amount(s) converted and the date of such conversion(s). The Company may deliver an objection to any Notice of Conversion within one (1) Business Day of delivery of such Notice of Conversion. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error. The Holder, and any assignee by acceptance of this Note, acknowledge and agree that, by reason of the provisions of this paragraph, following conversion of a portion of this Note, the unpaid and unconverted principal amount of this Note may be less than the amount stated on the face hereof. b) Conversion Price. The conversion price in effect on any Conversion Date shall be equal to 55% of the lowest traded price during the 25 Trading Day-period immediately prior to the applicable Conversion Date, subject to adjustment herein (the “Conversion Price”). Notwithstanding anything herein to the contrary, at any time after the occurrence of any Event of Default the Holder may require the Company to, at such Holder’s option and otherwise in accordance with the provisions for conversion herein, convert all or any part of this Note into Common Stock at the Alternate Conversion Price. All such determinations to be appropriately adjusted for any stock dividend, stock split, stock combination, reclassification or similar transaction that proportionately decreases or increases the Common Stock during such measuring period. Nothing herein shall limit a Holder’s right to pursue actual damages or declare an Event of Default pursuant to Section 6 hereof and the Holder shall have the right to pursue all remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief. The exercise of any such rights shall not prohibit the Holder from seeking to enforce damages pursuant to any other Section hereof or under applicable law. 8 c) Mechanics of Conversion. i. Conversion Shares Issuable Upon Conversion of Principal Amount. The number of Conversion Shares issuable upon a conversion hereunder shall be determined by the quotient obtained by dividing (x) the outstanding principal amount of this Note to be converted by (y) the Conversion Price. i. ii. Delivery of Certificate Upon Conversion. Not later than three (3) Trading Days after each Conversion Date (the “Share Delivery Date”), the Company shall deliver, or cause to be delivered, to the Holder (A) a certificate or certificates representing the Conversion Shares which, on or after the earlier of (i) the six month anniversary of the Original Issue Date or (ii) the Effective Date, shall be free of restrictive legends and trading restrictions (other than those which may then be required by the Purchase Agreement) representing the number of Conversion Shares being acquired upon the conversion of this Note, (B) a bank check in the amount of accrued and unpaid interest (if the Company has elected or is required to pay accrued interest in cash) and (C) a bank check in the amount of the Make-Whole Amount. All certificate or certificates required to be delivered by the Company under this Section 4(c) shall be delivered electronically through the Depository Trust Company or another established clearing corporation performing similar functions. If the Conversion Date is prior to the earlier of (i) the six month anniversary of the Original Issue Date or (ii) the Effective Date, then the Conversion Shares shall bear a restrictive legend in the following form, as appropriate: “NEITHER THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE EXERCISABLE HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL (WHICH COUNSEL SHALL BE SELECTED BY THE HOLDER), IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.” 9 iii. Failure to Deliver Certificates. If, in the case of any Notice of Conversion, such certificate or certificates are not delivered to or as directed by the applicable Holder by the Share Delivery Date, the Holder shall be entitled to elect by written notice to the Company at any time on or before its receipt of such certificate or certificates, to rescind such Conversion, in which event the Company shall promptly return to the Holder any original Note delivered to the Company and the Holder shall promptly return to the Company the Common Stock certificates issued to such Holder pursuant to the rescinded Conversion Notice. iv. Obligation Absolute; Partial Liquidated Damages. The Company’s obligations to issue and deliver the Conversion Shares upon conversion of this Note in accordance with the terms hereof are absolute and unconditional, irrespective of any action or inaction by the Holder to enforce the same, any waiver or consent with respect to any provision hereof, the recovery of any judgment against any Person or any action to enforce the same, or any setoff, counterclaim, recoupment, limitation or termination, or any breach or alleged breach by the Holder or any other Person of any obligation to the Company or any violation or alleged violation of law by the Holder or any other Person, and irrespective of any other circumstance which might otherwise limit such obligation of the Company to the Holder in connection with the issuance of such Conversion Shares; provided, however, that such delivery shall not operate as a waiver by the Company of any such action the Company may have against the Holder. In the event the Holder of this Note shall elect to convert any or all of the outstanding principal amount hereof, the Company may not refuse conversion based on any claim that the Holder or anyone associated or affiliated with the Holder has been engaged in any violation of law, agreement or for any other reason, unless an injunction from a court, on notice to Holder, restraining and or enjoining conversion of all or part of this Note shall have been sought and obtained, and the Company posts a surety bond for the benefit of the Holder in the amount of 150% of the outstanding principal amount of this Note, which is subject to the injunction, which bond shall remain in effect until the completion of arbitration/litigation of the underlying dispute and the proceeds of which shall be payable to the Holder to the extent it obtains judgment. In the absence of such injunction, the Company shall issue Conversion Shares or, if applicable, cash, upon a properly noticed conversion. If the Company fails for any reason to deliver to the Holder such certificate or certificates pursuant to Section 4(c)(ii) by the Share Delivery Date, the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of principal amount being converted, $10 per Trading Day (increasing to $20 per Trading Day on the fifth (5th) Trading Day after such liquidated damages begin to accrue) for each Trading Day after such Share Delivery Date until such certificates are delivered or Holder rescinds such conversion. Nothing herein shall limit a Holder’s right to pursue actual damages or declare an Event of Default pursuant to Section 6 hereof for the Company’s failure to deliver Conversion Shares within the period specified herein and the Holder shall have the right to pursue all remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief. The exercise of any such rights shall not prohibit the Holder from seeking to enforce damages pursuant to any other Section hereof or under applicable law. 10 v. Compensation for Buy-In on Failure to Timely Deliver Certificates Upon Conversion. In addition to any other rights available to the Holder, if the Company fails for any reason to deliver to the Holder such certificate or certificates by the Share Delivery Date pursuant to Section 4(c)(ii), and if after such Share Delivery Date the Holder is required by its brokerage firm to purchase (in an open market transaction or otherwise), or the Holder’s brokerage firm otherwise purchases, shares of Common Stock to deliver in satisfaction of a sale by the Holder of the Conversion Shares which the Holder was entitled to receive upon the conversion relating to such Share Delivery Date (a “Buy-In”), then the Company shall (A) pay in cash to the Holder (in addition to any other remedies available to or elected by the Holder) the amount, if any, by which (x) the Holder’s total purchase price (including any brokerage commissions) for the Common Stock so purchased exceeds (y) the product of (1) the aggregate number of shares of Common Stock that the Holder was entitled to receive from the conversion at issue multiplied by (2) the actual sale price at which the sell order giving rise to such purchase obligation was executed (including any brokerage commissions) and (B) at the option of the Holder, either reissue (if surrendered) this Note in a principal amount equal to the principal amount of the attempted conversion (in which case such conversion shall be deemed rescinded) or deliver to the Holder the number of shares of Common Stock that would have been issued if the Company had timely complied with its delivery requirements under Section 4(c)(ii). For example, if the Holder purchases Common Stock having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted conversion of this Note with respect to which the actual sale price of the Conversion Shares (including any brokerage commissions) giving rise to such purchase obligation was a total of $10,000 under clause (A) of the immediately preceding sentence, the Company shall be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating the amounts payable to the Holder in respect of the Buy-In and, upon request of the Company, evidence of the amount of such loss. Nothing herein shall limit a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing shares of Common Stock upon conversion of this Note as required pursuant to the terms hereof. vi. Reservation of Shares Issuable Upon Conversion. The Company covenants that it will at all times reserve and keep available out of its authorized and unissued shares of Common Stock a number of shares of Common Stock at least equal to 300% of the Required Minimum (to be adjusted monthly) for the sole purpose of issuance upon conversion of this Note and payment of interest on this Note, each as herein provided, free from preemptive rights or any other actual contingent purchase rights of Persons other than the Holder (and the other holders of the Note), not less than such aggregate number of shares of the Common Stock as shall (subject to the terms and conditions set forth in the Purchase Agreement) be issuable (taking into account the adjustments and restrictions of Section 5) upon the conversion of the then outstanding principal amount of this Note and payment of interest hereunder. The Company covenants that all shares of Common Stock that shall be so issuable shall, upon issue, be duly authorized, validly issued, fully paid and nonassessable and, if the registration statement is then effective under the Securities Act, shall be registered for public resale in accordance with such registration statement (subject to such Holder’s compliance with its obligations under the Section 4.17 of the Purchase Agreement). 11 vii. Fractional Shares. No fractional shares or scrip representing fractional shares shall be issued upon the conversion of this Note. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such conversion, the Company shall at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the Conversion Price or round up to the next whole share. viii. Transfer Taxes and Expenses. The issuance of certificates for shares of the Common Stock on conversion of this Note shall be made without charge to the Holder hereof for any documentary stamp or similar taxes that may be payable in respect of the issue or delivery of such certificates, provided that, the Company shall not be required to pay any tax that may be payable in respect of any transfer involved in the issuance and delivery of any such certificate upon conversion in a name other than that of the Holder of this Note so converted and the Company shall not be required to issue or deliver such certificates unless or until the Person or Persons requesting the issuance thereof shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paid. The Company shall pay all Transfer Agent fees required for same-day processing of any Notice of Conversion. d) Holder’s Conversion Limitations. The Company shall not effect any conversion of this Note, and a Holder shall not have the right to convert any portion of this Note, to the extent that after giving effect to the conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any Persons acting as a group together with the Holder or any of the Holder’s Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable upon (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other Notes) beneficially owned by the Holder or any of its Affiliates. Except as set forth in the preceding sentence, for purposes of this Section 4(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section 4(d) applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any Affiliates) and of which principal amount of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Note may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which principal amount of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes of this Section 4(d), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within two Trading Days confirm orally and in writing to the Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Note, by the Holder or its Affiliates since the date as of which such number of outstanding shares of Common Stock was reported. The “Beneficial Ownership Limitation” shall be 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder, upon not less than 61 days’ prior notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 4(d), provided that the Beneficial Ownership Limitation in no event exceeds 9.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section 4(d) shall continue to apply. Any such increase or decrease will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 4(d) to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Note. 12 Section 5. Certain Adjustments. a) Stock Dividends and Stock Splits. If the Company, at any time while this Note is outstanding: (i) pays a stock dividend or otherwise makes a distribution or distributions payable in shares of Common Stock on shares of Common Stock or any Common Stock Equivalents (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company upon conversion of, or payment of interest on, the Note), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of a reverse stock split) outstanding shares of Common Stock into a smaller number of shares or (iv) issues, in the event of a reclassification of shares of the Common Stock, any shares of capital stock of the Company, then the Conversion Price shall be multiplied by a fraction of which the numerator shall be the number of shares of Common Stock (excluding any treasury shares of the Company) outstanding immediately before such event, and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event. Any adjustment made pursuant to this Section shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or re-classification. b) Subsequent Equity Sales. If, at any time while this Note is outstanding, the Company or any Subsidiary, as applicable, sells or grants any option to purchase or sells or grants any right to reprice, or otherwise disposes of or issues (or announces any sale, grant or any option to purchase or other disposition), any Common Stock or Common Stock Equivalents entitling any Person to acquire shares of Common Stock at an effective price per share that is lower than the then Conversion Price (such lower price, the “Base Conversion Price” and such issuances, collectively, a “Dilutive Issuance”) (if the holder of the Common Stock or Common Stock Equivalents so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share that is lower than the Conversion Price, such issuance shall be deemed to have occurred for less than the Conversion Price on such date of the Dilutive Issuance), then the Conversion Price shall be reduced to equal the Base Conversion Price. Such adjustment shall be made whenever such Common Stock or Common Stock Equivalents are issued. Notwithstanding the foregoing, no adjustment will be made under this Section 5(b) in respect of an Exempt Issuance. If the Company enters into a Variable Rate Transaction, despite the prohibition set forth in the Purchase Agreement, the Company shall be deemed to have issued Common Stock or Common Stock Equivalents at the lowest possible conversion price at which such securities may be converted or exercised. The Company shall notify the Holder in writing, no later than the Trading Day following the issuance of any Common Stock or Common Stock Equivalents subject to this Section 5(b), indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and other pricing terms (such notice, the “Dilutive Issuance Notice”). For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice pursuant to this Section 5(b), upon the occurrence of any Dilutive Issuance, the Holder is entitled to receive a number of Conversion Shares based upon the Base Conversion Price on or after the date of such Dilutive Issuance, regardless of whether the Holder accurately refers to the Base Conversion Price in the Notice of Conversion. 13 c) Subsequent Rights Offerings. In addition to any adjustments pursuant to Section 5(a) above, if at any time the Company grants, issues or sells any Common Stock Equivalents or rights to purchase stock, warrants, securities or other property pro rata to the record holders of any class of shares of Common Stock (the “Purchase Rights”), then the Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the number of shares of Common Stock acquirable upon complete conversion of this Note (without regard to any limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights (provided, however, to the extent that the Holder’s right to participate in any such Purchase Right would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Purchase Right to such extent (or beneficial ownership of such shares of Common Stock as a result of such Purchase Right to such extent) and such Purchase Right to such extent shall be held in abeyance for the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation). d) Pro Rata Distributions. During such time as this Note is outstanding, if the Company shall declare or make any dividend or other distribution of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities, property or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a "Distribution"), at any time after the issuance of this Note, then, in each such case, the Holder shall be entitled to participate in such Distribution to the same extent that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Note (without regard to any limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for the participation in such Distribution (provided, however, to the extent that the Holder's right to participate in any such Distribution would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Distribution to such extent (or in the beneficial ownership of any shares of Common Stock as a result of such Distribution to such extent) and the portion of such Distribution shall be held in abeyance for the benefit of the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation). 14 e) Fundamental Transaction. If, at any time while this Note is outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into another Person, (ii) the Company, directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Common Stock, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property, (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with another Person whereby such other Person acquires more than 50% of the outstanding shares of Common Stock (not including any shares of Common Stock held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination) (each a “Fundamental Transaction”), then, upon any subsequent conversion of this Note, the Holder shall have the right to receive, for each Conversion Share that would have been issuable upon such conversion immediately prior to the occurrence of such Fundamental Transaction (without regard to any limitation in Section 4(d) on the conversion of this Note), the number of shares of Common Stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of shares of Common Stock for which this Note is convertible immediately prior to such Fundamental Transaction (without regard to any limitation in Section 4(d) on the conversion of this Note). For purposes of any such conversion, the determination of the Conversion Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one (1) share of Common Stock in such Fundamental Transaction, and the Company shall apportion the Conversion Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any conversion of this Note following such Fundamental Transaction. The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Company under this Note and the other Transaction Documents (as defined in the Purchase Agreement) in accordance with the provisions of this Section 5(e) pursuant to written agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the holder of this Note, deliver to the Holder in exchange for this Note a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Note which is convertible for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the shares of Common Stock acquirable and receivable upon conversion of this Note (without regard to any limitations on the conversion of this Note) prior to such Fundamental Transaction, and with a conversion price which applies the conversion price hereunder to such shares of capital stock (but taking into account the relative value of the shares of Common Stock pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such conversion price being for the purpose of protecting the economic value of this Note immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Note and the other Transaction Documents referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Note and the other Transaction Documents with the same effect as if such Successor Entity had been named as the Company herein. 15 f) Calculations. All calculations under this Section 5 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. For purposes of this Section 5, the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall be the sum of the number of shares of Common Stock (excluding any treasury shares of the Company) issued and outstanding. g) Notice to the Holder. i. Adjustment to Conversion Price. Whenever the Conversion Price is adjusted pursuant to any provision of this Section 5, the Company shall promptly deliver to each Holder a notice setting forth the Conversion Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment. ii. Notice to Allow Conversion by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on the Common Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C) the Company shall authorize the granting to all holders of the Common Stock of rights or warrants to subscribe for or purchase any shares of capital stock of any class or of any rights, (D) the approval of any stockholders of the Company shall be required in connection with any reclassification of the Common Stock, any consolidation or merger to which the Company is a party, any sale or transfer of all or substantially all of the assets of the Company, or any compulsory share exchange whereby the Common Stock is converted into other securities, cash or property or (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Company, then, in each case, the Company shall cause to be filed at each office or agency maintained for the purpose of conversion of this Note, and shall cause to be delivered to the Holder at its last address as it shall appear upon the Note Register, at least twenty (20) calendar days prior to the applicable record or effective date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders of the Common Stock of record to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on which such reclassification, consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the date as of which it is expected that holders of the Common Stock of record shall be entitled to exchange their shares of the Common Stock for securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange, provided that the failure to deliver such notice or any defect therein or in the delivery thereof shall not affect the validity of the corporate action required to be specified in such notice. To the extent that any notice provided hereunder constitutes, or contains, material, non-public information regarding the Company or any of the Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K. The Holder shall remain entitled to convert this Note during the 20-day period commencing on the date of such notice through the effective date of the event triggering such notice except as may otherwise be expressly set forth herein. 16 Section 6. Events of Default. a) “Event of Default” means, wherever used herein, any of the following events (whatever the reason for such event and whether such event shall be voluntary or involuntary or effected by operation of law or pursuant to any judgment, decree or order of any court, or any order, rule or regulation of any administrative or governmental body): i. any default in the payment of (A) the principal amount of any Note or (B) interest, liquidated damages and other amounts owing to a Holder on any Note, as and when the same shall become due and payable (whether on a Conversion Date or the Maturity Date or by acceleration or otherwise) which default, solely in the case of an interest payment or other default under clause (B) above, is not cured within 3 Trading Days; ii. the Company shall fail to observe or perform any other covenant or agreement contained in the Note (other than a breach by the Company of its obligations to deliver shares of Common Stock to the Holder upon conversion, which breach is addressed in clause (xi) below) which failure is not cured, if possible to cure, within the earlier to occur of (A) 5 Trading Days after notice of such failure sent by the Holder or by any other Holder to the Company and (B) 10 Trading Days after the Company has become or should have become aware of such failure; iii. a default or event of default (subject to any grace or cure period provided in the applicable agreement, document or instrument) shall occur under (A) any of the Transaction Documents or (B) any other material agreement, lease, document or instrument to which the Company or any Subsidiary is obligated (and not covered by clause (vi) below); iv. any representation or warranty made in this Note, any other Transaction Documents, any written statement pursuant hereto or thereto or any other report, financial statement or certificate made or delivered to the Holder or any other Holder shall be untrue or incorrect in any material respect as of the date when made or deemed made; v. the Company or any Significant Subsidiary (as such term is defined in Rule 1-02(w) of Regulation S-X) shall be subject to a Bankruptcy Event; vi. the Company or any Subsidiary shall default on any of its obligations under any mortgage, credit agreement or other facility, indenture agreement, factoring agreement or other instrument under which there may be issued, or by which there may be secured or evidenced, any indebtedness for borrowed money or money due under any long term leasing or factoring arrangement that (a) involves an obligation greater than $50,000, whether such indebtedness now exists or shall hereafter be created, and (b) results in such indebtedness becoming or being declared due and payable prior to the date on which it would otherwise become due and payable; vii. the Common Stock shall not be eligible for listing or quotation for trading on a Trading Market and shall not be eligible to resume listing or quotation for trading thereon within five Trading Days or the transfer of shares of Common Stock through the Depository Trust Company System is no longer available or “chilled”; viii. the Company shall be a party to any Change of Control Transaction or Fundamental Transaction or shall agree to sell or dispose of all or in excess of 33% of its assets in one transaction or a series of related transactions (whether or not such sale would constitute a Change of Control Transaction); 17 ix. [intentionally omitted]; x. [intentionally omitted]; xi. the Company shall fail for any reason to deliver certificates via DWAC to a Holder prior to the fifth Trading Day after a Conversion Date pursuant to Section 4(c) or the Company shall provide at any time notice to the Holder, including by way of public announcement, of the Company’s intention to not honor requests for conversions of the Note in accordance with the terms hereof; xii. the Company fails to file with the Commission any required reports under Section 13 or 15(d) of the Exchange Act such that it is not in compliance with Rule 144(c)(1) (or Rule 144(i)(2), if applicable); xiii. if the Borrower or any Significant Subsidiary shall: (i) apply for or consent to the appointment of a receiver, trustee, custodian or liquidator of it or any of its properties, (ii) admit in writing its inability to pay its debts as they mature, (iii) make a general assignment for the benefit of creditors, (iv) be adjudicated a bankrupt or insolvent or be the subject of an order for relief under Title 11 of the United States Code or any bankruptcy, reorganization, insolvency, readjustment of debt, dissolution or liquidation law or statute of any other jurisdiction or foreign country, or (v) file a voluntary petition in bankruptcy, or a petition or an answer seeking reorganization or an arrangement with creditors or to take advantage or any bankruptcy, or statute, or an answer admitting the material allegations of a petition filed against it in any proceeding under any such law, or (vi) take or permit to be taken any action in furtherance of or for the purpose of effecting any of the foregoing; xiv. if any order, judgment or decree shall be entered, without the application, approval or consent of the Borrower or any Significant Subsidiary, by any court of competent jurisdiction, approving a petition seeking liquidation or reorganization of the Borrower or any Subsidiary, or appointing a receiver, trustee, custodian or liquidator of the Borrower or any Subsidiary, or of all or any substantial part of its assets, and such order, judgment or decree shall continue unstayed and in effect for any period of sixty (60) days; xv. the occurrence of any levy upon or seizure or attachment of, or any uninsured loss of or damage to, any property of the Borrower or any Subsidiary having an aggregate fair value or repair cost (as the case may be) in excess of $100,000 individually or in the aggregate, and any such levy, seizure or attachment shall not be set aside, bonded or discharged within thirty (30) days after the date thereof; xvi. the Company shall fail to maintain sufficient reserved shares pursuant to Section 4.11 of the Purchase Agreement; or 18 xvii. any monetary judgment, writ or similar final process shall be entered or filed against the Company, any subsidiary or any of their respective property or other assets for more than $50,000, and such judgment, writ or similar final process shall remain unvacated, unbonded or unstayed for a period of 45 calendar days. b) Remedies Upon Event of Default. If any Event of Default occurs, the Company shall have five (5) days to cure such Event of Default. If following the five day period the Event of Default remains, then the outstanding principal amount of this Note, plus accrued but unpaid interest, liquidated damages and other amounts owing in respect thereof through the date of acceleration, shall become, at the Holder’s election, immediately due and payable in cash at the Mandatory Default Amount. Commencing 5 days after the occurrence of any Event of Default that results in the eventual acceleration of this Note, the interest rate on this Note shall accrue at an additional interest rate equal to the lesser of 2% per month (24% per annum) or the maximum rate permitted under applicable law. Upon the payment in full of the Mandatory Default Amount, the Holder shall promptly surrender this Note to or as directed by the Company. In connection with such acceleration described herein, the Holder need not provide, and the Company hereby waives, any presentment, demand, protest or other notice of any kind, and the Holder may immediately and without expiration of any grace period enforce any and all of its rights and remedies hereunder and all other remedies available to it under applicable law. Such acceleration may be rescinded and annulled by Holder at any time prior to payment hereunder and the Holder shall have all rights as a holder of the Note until such time, if any, as the Holder receives full payment pursuant to this Section 6(b). No such rescission or annulment shall affect any subsequent Event of Default or impair any right consequent thereon. Section 7. Miscellaneous. a) Notices. Any and all notices or other communications or deliveries to be provided by the Holder hereunder, including, without limitation, any Notice of Conversion, shall be in writing and delivered personally, by facsimile, or sent by a nationally recognized overnight courier service, addressed to the Company, at the address set forth above, or such other facsimile number or address as the Company may specify for such purposes by notice to the Holder delivered in accordance with this Section 7(a). Any and all notices or other communications or deliveries to be provided by the Company hereunder shall be in writing and delivered personally, by facsimile, or sent by a nationally recognized overnight courier service addressed to each Holder at the facsimile number or address of the Holder appearing on the books of the Company, or if no such facsimile number or address appears on the books of the Company, at the principal place of business of such Holder, as set forth in the Purchase Agreement. Any notice or other communication or deliveries hereunder shall be deemed given and effective on the earliest of (i) the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number set forth on the signature pages attached hereto prior to 5:30 p.m. (New York City time) on any date, (ii) the next Trading Day after the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number set forth on the signature pages attached hereto on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (iii) the second Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service or (iv) upon actual receipt by the party to whom such notice is required to be given. 19 b) Absolute Obligation. Except as expressly provided herein, no provision of this Note shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of, liquidated damages and accrued interest, as applicable, on this Note at the time, place, and rate, and in the coin or currency, herein prescribed. This Note is a direct debt obligation of the Company. This Note ranks pari passu with all other Notes now or hereafter issued under the terms set forth herein. c) Lost or Mutilated Note. If this Note shall be mutilated, lost, stolen or destroyed, the Company shall execute and deliver, in exchange and substitution for and upon cancellation of a mutilated Note, or in lieu of or in substitution for a lost, stolen or destroyed Note, a new Note for the principal amount of this Note so mutilated, lost, stolen or destroyed, but only upon receipt of evidence of such loss, theft or destruction of such Note, and of the ownership hereof, reasonably satisfactory to the Company. d) Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Note shall be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflict of laws thereof. Each party agrees that all legal proceedings concerning the interpretation, enforcement and defense of the transactions contemplated by any of the Transaction Documents (whether brought against a party hereto or its respective Affiliates, directors, officers, shareholders, employees or agents) shall be commenced in the state and federal courts sitting in the City of New York, Borough of Manhattan (the “New York Courts”). Each party hereto hereby irrevocably submits to the exclusive jurisdiction of the New York Courts for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein (including with respect to the enforcement of any of the Transaction Documents), and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of such New York Courts, or such New York Courts are improper or inconvenient venue for such proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Note and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by applicable law. Each party hereto hereby irrevocably waives, to the fullest extent permitted by arising out of or relating to this Note or the transactions contemplated hereby. If any party shall commence an action or proceeding to enforce any provisions of this Note, then the prevailing party in such action or proceeding shall be reimbursed by the other party for its attorneys' fees and other costs and expenses incurred in the investigation, preparation and prosecution of such action or proceeding. 20 e) Waiver. Any waiver by the Company or the Holder of a breach of any provision of this Note shall not operate as or be construed to be a waiver of any other breach of such provision or of any breach of any other provision of this Note. The failure of the Company or the Holder to insist upon strict adherence to any term of this Note on one or more occasions shall not be considered a waiver or deprive that party of the right thereafter to insist upon strict adherence to that term or any other term of this Note on any other occasion. Any waiver by the Company or the Holder must be in writing. f) Severability. If any provision of this Note is invalid, illegal or unenforceable, the balance of this Note shall remain in effect, and if any provision is inapplicable to any Person or circumstance, it shall nevertheless remain applicable to all other Persons and circumstances. If it shall be found that any interest or other amount deemed interest due hereunder violates the applicable law governing usury, the applicable rate of interest due hereunder shall automatically be lowered to equal the maximum rate of interest permitted under applicable law. The Company covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law or other law which would prohibit or forgive the Company from paying all or any portion of the principal of or interest on this Note as contemplated herein, wherever enacted, now or at any time hereafter in force, or which may affect the covenants or the performance of this Note, and the Company (to the extent it may lawfully do so) hereby expressly waives all benefits or advantage of any such law, and covenants that it will not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Holder, but will suffer and permit the execution of every such as though no such law has been enacted. g) Remedies, Characterizations, Other Obligations, Breaches and Injunctive Relief. The remedies provided in this Note shall be cumulative and in addition to all other remedies available under this Note and any of the other Transaction Documents at law or in equity (including a decree of specific performance and/or other injunctive relief), and nothing herein shall limit the Holder’s right to pursue actual and consequential damages for any failure by the Company to comply with the terms of this Note. The Company covenants to the Holder that there shall be no characterization concerning this instrument other than as expressly provided herein. Amounts set forth or provided for herein with respect to payments, conversion and the like (and the computation thereof) shall be the amounts to be received by the Holder and shall not, except as expressly provided herein, be subject to any other obligation of the Company (or the performance thereof). The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Holder and that the remedy at law for any such breach may be inadequate. The Company therefore agrees that, in the event of any such breach or threatened breach, the Holder shall be entitled, in addition to all other available remedies, to an injunction restraining any such breach or any such threatened breach, without the necessity of showing economic loss and without any bond or other security being required. The Company shall provide all information and documentation to the Holder that is requested by the Holder to enable the Holder to confirm the Company’s compliance with the terms and conditions of this Note. 21 h) Next Business Day. Whenever any payment or other obligation hereunder shall be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day. i) Headings. The headings contained herein are for convenience only, do not constitute a part of this Note and shall not be deemed to limit or affect any of the provisions hereof. j) Secured Obligation. The obligations of the Company under this Note are secured by all assets of the Company and each Subsidiary pursuant to the Security Agreement, dated as of April 8, 2015 between the Company, the Subsidiaries of the Company and the Secured Parties (as defined therein). (Signature Pages Follow) 22 IN WITNESS WHEREOF, the Company has caused this Note to be duly executed by a duly authorized officer as of the date first above indicated. DIRECTVIEW HOLDINGS, INC. By:__________________________________________ Name: Title: Facsimile No. for delivery of Notices: _______________ 23 ANNEX A NOTICE OF CONVERSION The undersigned hereby elects to convert principal under the 5% Original Issue Discount Senior Secured Convertible Promissory Note due April 8, 2016 of DirectView, Inc., a Nevada corporation (the “Company”), into shares of common stock (the “Common Stock”), of the Company according to the conditions hereof, as of the date written below. If shares of Common Stock are to be issued in the name of a person other than the undersigned, the undersigned will pay all transfer taxes payable with respect thereto and is delivering herewith such certificates and opinions as reasonably requested by the Company in accordance therewith. No fee will be charged to the holder for any conversion, except for such transfer taxes, if any. By the delivery of this Notice of Conversion the undersigned represents and warrants to the Company that its ownership of the Common Stock does not exceed the amounts specified under Section 4 of this Note, as determined in accordance with Section 13(d) of the Exchange Act. The undersigned agrees to comply with the prospectus delivery requirements under the applicable securities laws in connection with any transfer of the aforesaid shares of Common Stock. Conversion calculations: Date to Effect Conversion: Principal Amount of Note to be Converted: Payment of Interest in Common Stock __ yes __ no If yes, $_____ of Interest Accrued on Account of Conversion at Issue. Number of shares of Common Stock to be issued: Signature: Name: DWAC Instructions: Broker No: Account No: 24 Appendix A Amortization Schedule Transaction Amount Timing Funding: $26,250.00 April 8, 2015 Amortization Payments First Payment $2,187.50 Second Payment $2,187.50 Third Payment $2,187.50 Fourth payment $2,187.50 Fifth Payment $2,187.50 Sixth Payment $2,187.50 Seventh Payment $2,187.50 Eighth Payment $2,187.50 Ninth Payment $2,187.50 Tenth payment $2,187.50 Eleventh Payment $2,187.50 Twelfth Payment $2,187.50 25 Schedule 1 CONVERSION SCHEDULE This 5% Original Issue Discount Senior Secured Convertible Promissory Note due on April 8, 2016 in the original principal amount of $26,250.00 is issued by DirectView Holdings, Inc., a Nevada corporation. This Conversion Schedule reflects conversions made under Section 4 of the above referenced Note. Dated: Date of Conversion (or for first entry, Original Issue Date) Amount of Conversion Aggregate Principal Amount Remaining Subsequent to Conversion (or original Principal Amount) Company Attest 26
EXHIBIT 10.02 TERRALENE FUELS CORPORATION (the “Company”) Consent to Act as Director I hereby consent to act as a director of the Company and acknowledge that I am not disqualified to become or to act as a director under Section 141 of the Delaware General Corporation Law. I hereby confirm that: 1 I am not under the age of 18 years; 2 I have not been found by a court, in the United States of America or elsewhere, to be incapable of managing my own affairs; 3 I am not an undischarged bankrupt; and 4 I have not been convicted in or out of Delaware of an offence in connection with the promotion, formation or management of a corporation or unincorporated business, or of an offence involving fraud. In addition, the undersigned hereby consents to the holding of any meeting of the directors or of a committee of the directors of the Company by means of such telephonic, electronic or other communication facility, as permit all persons participating in the subject meetings to communicate adequately with each other. This consent shall continue in effect from year to year so long as the undersigned is re-elected to the board of directors, provided that in the event that the undersigned revokes this consent or resigns from the board of directors, this consent shall cease to have effect from the date of receipt in writing by the Company of such revocation or resignation, as the case may be, or, if the latter, the effective date of such resignation. DIRECTORS HAVE SUBSTANTIAL DUTIES AND OBLIGATIONS AND MAY BE SUBJECT TO SIGNIFICANT LIABILITIES. THE PERSON SIGNING THIS CONSENT SHOULD OBTAIN INDEPENDENT LEGAL ADVICE. Dated: February 1, 2012 Print name: Matt Kelly Address: 123 Van Horn Avenue Holbrook, New York,11741 Signature /s/: Matt Kelly
Exhibit 10.01 Consulting Agreement This Consulting Agreement (this “Agreement”) is entered into as of September 18, 2006 (“Effective Date”) by and between Silicon Image, Inc., a Delaware corporation with its principal place of business at 1060 East Arques Avenue, Sunnyvale, CA 94085 (“Company”) and Patrick Reutens (“Consultant”). As used herein, “Party” or “Parties” will refer to Company, Consultant or both, as the case may be. “Consultant” includes the Consultant, and all employees and agents of the Consultant. RECITAL Consultant desires to perform, and Company desires to have Consultant perform, consulting services as an independent contractor to Company. NOW, THEREFORE, the Parties agree as follows: 1. Services 1.1. Performance. Consultant will provide legal consulting services to Company as directed by Company management (the “Services”). 1.2. Period of Consultancy. The “Period of Consultancy” will commence on the Effective Date and will terminate on November 30, 2006. 1.3. Payment. As sole compensation for the performance of the Services, during the Period of Consultancy, Company will (a) pay Consultant a consulting fee of $5,000, (b) pay Consultant performance-based compensation of up to $125,000 upon the timely and satisfactory completion of performance objectives to be determined by the Company’s Chief Executive Officer and (c) extend Consultant’s exercise period in which to exercise his Company stock options from December 5, 2006 until the close of trading on December 29, 2006. Consultant agrees that he shall not exercise his Company stock options or otherwise trade in Company stock during the Period of Consultancy while in possession of material nonpublic information. Consultant acknowledges that he may obtain access to material nonpublic information during the Period of Consultancy by virtue of his performance of the Services. Company will also reimburse Consultant for his reasonable out-of-pocket expenses incurred in performing the Services which are approved in advance by Company’s Chief Executive Officer. Consultant will invoice Company on a monthly basis for such out-of-pocket expenses and Company will pay each such invoice no later than thirty (30) days after its receipt. Consultant will receive no other compensation or remuneration in connection with or based upon the Services. Without limiting the foregoing, Consultant acknowledges and agrees that vesting under his Company stock options ceased effective September 5, 2006. 1 2. Relationship of the Parties. 2.1. Independent Contractor. Contractor is an independent contractor and is not an agent or employee of, and has no authority to bind, Company by contract or otherwise. Consultant will perform the Services under the general direction of Company, but Consultant will determine, in Consultant’s sole discretion, the manner and means by which the Services are accomplished, subject to the requirement that Consultant shall at all times comply with applicable law. 2.2. Employment Taxes and Benefits. Consultant will report as income all compensation received by Consultant pursuant to this Agreement. Consultant will indemnify, hold harmless, and, at Company’s request, defend Company and Company’s subsidiaries, affiliates, directors, officers, employees and agents and independent contractors from and against all claims, damages, losses and expenses, including reasonable fees and expenses of attorneys and other professionals, relating to any obligation imposed by law on Company to pay any withholding taxes, social security, unemployment or disability insurance or similar items, including interest and penalties thereon, in connection with 3. Confidential Information Consultant acknowledges that Consultant will acquire information and materials from Company and knowledge about the business, products, customers, clients and suppliers of Company and that all such knowledge, information and materials acquired, and the existence, terms and conditions of this Agreement, are and will be the trade secrets and confidential and proprietary information of Company (collectively “Confidential Information”). Confidential Information will not include, however, any information which is or becomes part of the public domain through no fault of Consultant. Consultant agrees to hold all such Confidential Information in strict confidence, not to disclose it to others or use it in any way, commercially or otherwise, except in performing the Services, and not to allow any unauthorized person access to it, either before or after expiration or termination of this Agreement. Consultant further agrees to take all action reasonably necessary and satisfactory to protect the confidentiality of the Confidential Information including, without limitation, implementing and enforcing operating procedures to minimize the possibility of unauthorized use or copying of the Confidential Information. 4. Termination and Expiration 4.1. Termination. Either party may terminate this Agreement in the event of a breach by the other party if such breach continues uncured for a period of ten (10) days after written notice. 2 4.2. Expiration. Unless terminated earlier, this Agreement will expire at the end of the Period of Consultancy. 4.3. No Election of Remedies. The election by Company to terminate this Agreement in accordance with its terms shall not be deemed an election of remedies, and all other remedies provided by this Agreement or available at law or in equity shall survive any termination. 5. Effect of Expiration or Termination. Upon the expiration or termination of this Agreement for any reason: a) Sections 2.2, 3, 5, 6, 8 and 9 of this Agreement shall survive and the obligations thereunder shall continue in full force and effect; and b) upon the Company’s reasonable request, Consultant will promptly notify Company of all Confidential Information in Consultant’s possession and, at the expense of Consultant and in accordance with Company’s instruction, will promptly deliver to Company all such Confidential Information. 6. Limitation of Liability IN NO EVENT SHALL COMPANY OR CONSULTANT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH THIS AGREEMENT, EVEN IF COMPANY OR CONSULTANT HAS BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. 7. Competitive Activities Consultant will not during the term of this Agreement, directly or indirectly, in any individual or representative capacity, engage or participate in or provide services to any business whose primary business is Consultant is an executive of Atmel Corporation and does not consider Consultant’s employment by such company to be competitive with Company. 8. Indemnification a) Consultant will defend, indemnify and hold harmless Company against all claims, liabilities, damages, losses and expenses, including but not limited to reasonable attorneys’ fees and costs of suit, that arise out of Consultant’s gross negligence or willful misconduct; provided however, that Consultant shall not be obligated to indemnify Company for: (i) settlements entered into without first obtaining 3 Consultant’s written consent; provided such consent shall not be unreasonably withheld; (ii) any action taken at the express direction of Company; or (iii) to the extent such indemnification is adjudicated to be unlawful. b) Company will defend, indemnify and hold harmless Consultant against all claims, liabilities, damages, losses and expenses (collectively, “Claim Against Consultant”), including but not limited to reasonable attorneys’ fees and costs of suit, arising out of Consultant’s lawful actions under this Agreement that are taken at the direction of the Company; provided, however that the Company shall not be obligated to defend, indemnify or hold harmless Consultant for (i) any matter for which Consultant is obligated to indemnify the Company pursuant to Section 8(a); (ii) proceedings and claims initiated or brought voluntarily by Consultant and not by way of defense, except with respect to proceedings specifically authorized by the Board of Directors of the Company or brought to establish or enforce a right to indemnification arising under this Agreement or any statute or law or otherwise, (iii) settlements entered into without the Company’s authorization and prior written consent; (iv) an action against Consultant for violation of Section 16 of the Securities Exchange Act of 1934 or other similar law; or (v) to the extent such indemnification is adjudicated to be unlawful. As a condition of Company’s obligations under this Section 8(b) (collectively, “Company Indemnification Obligations”), Consultant will (1) provide Company with prompt written notice of any Claim Against Consultant, (2) permit Company to have sole control of the defense, settlement, adjustment or compromise of any such Claim Against Consultant; provided, that (a) Company will not make any acknowledgment of culpability on Consultant’s behalf without Consultant’s consent, and (b) Consultant may secure his own legal representation at his sole expense, who shall not control or participate in the defense, provided further that if the Company and Consultant are named as co-defendants in an action and there is a conflict of interest that prevents the Company from representing Consultant in such action then, solely with respect to the issues where such conflict of interest exists, Company will no longer control Consultant defense in such action and will pay, to the extent of any Company Indemnification Obligations, for the reasonable fees and expenses of Consultant’s counsel in such action, and (3) provide Company with all reasonable assistance (which shall not be construed to include the payment of funds by Consultant) in the defense, settlement, adjustment or compromise of any Claim Against Consultant. 9. General a) Assignment. Consultant may not assign Consultant’s rights or delegate Consultant’s duties under this Agreement either in whole or in part without the prior written consent of Company. Any attempted assignment or delegation without such consent will be void. b) Attorneys’ Fees. If any action is necessary to enforce the terms of this Agreement, the substantially prevailing party will be entitled to reasonable attorney’s fees, costs and expenses in addition to any other relief to which such prevailing party may be entitled. 4 c) Governing Law Severability. This Agreement will be governed by and construed in accordance with the laws of the State of California excluding that body of law pertaining to conflict of laws. If any provision of this Agreement is for any reason found to be unenforceable, the remainder of this Agreement will continue in full force and effect. d) Notices. Any notices under this Agreement will be sent by certified or registered mail, return receipt requested, to the address specified below or such other address as the party specifies in writing. Such notice will be effective upon its mailing as specified. e) Complete Understanding; Modifications. This Agreement constitutes the complete and exclusive understanding and agreement of the parties and supersedes all prior understandings and agreements, whether written or oral, with respect to the subject matter hereof and thereof. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by the parties hereto. This Agreement may be executed in one or more counterparts, each of which shall for all purposes be deemed to be an original and all of which shall constitute the same instrument. IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date. COMPANY: CONSULTANT: SILICON IMAGE, INC. PATRICK REUTENS By: /s/ Steve Tirado By: Patrick Reutens Name: Steve Tirado Address: [Address] Title: Chief Executive Officer 5
SCHEDULE 14C INFORMATION Information Statement Pursuant to Section 14(c) of the Securities Exchange Act of 1934 Check the appropriate box: [X] Preliminary Information Statement [_] Confidential, For Use of the Commission only (as permitted by Rule 14c-5(d)(2)) [X Definitive Information Statement WESTMOUNTAIN ASSET MANAGEMENT, INC. (Name of Registrant as Specified in Its Charter) Payment of Filing Fee (Check the appropriate box): [X] No Fee Required [_] Fee computed on table below per Exchange Act Rules 14c-5(g) and 0-11. (1) Title of each class of securities to which transaction applies: (2) Aggregate number of securities to which transaction applies: (3) Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing fee is calculated and state how it was determined): (4) Proposed maximum aggregate value of transaction: (5) Total fee paid: [_] Fee paid previously with preliminary materials: [_] Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the form or schedule and the date of its filing. (1) Amount previously paid: (2) Form, Schedule or Registration Statement No.: (3) Filing party: (4) Date filed: SCHEDULE 14C INFORMATION STATEMENT (Pursuant to Regulation 14C of the Securities Exchange Act of 1934 as amended) WESTMOUNTAIN ASSET MANAGEMENT, INC. 123 North College Ave, Suite 200 Fort Collins, CO 80524 WE ARE NOT ASKING YOU FOR A PROXY AND YOU ARE REQUESTED NOT TO SEND US A PROXY. This Information Statement is furnished by the Board of Directors of WestMountain Asset Management, Inc., a Colorado corporation, to the holders of record of our outstanding common stock, $0.001par value per share at the close of business on the record date January 8, 2014 (the “Common Stock”), pursuant to Rule 14c-2 promulgated under the Securities Exchange Act of 1934, as amended. This Information Statement is being furnished to such stockholders for the purpose of informing the stockholders of 1.The reelection of the sole member to our Board of Directors, to hold office until the next Annual Meeting and until his successor is elected and qualified; 2.The amendment of the Articles of Incorporation to change our name to “WestMountain Company,” or a derivation thereof; and 3.The approval and ratification ofMaloneBailey, LLP as our independent auditors for the fiscal year ending December 31, 2013; Except as otherwise indicated by the context, references in this information statement to “Company,” “we,” “us,” or “our” are references to WestMountain Asset Management, Inc. and our subsidiaries. The Company has received the consent of a majority of the outstanding shares of the Common Stock approving the reelection of our sole member to our Board of Directors, approving the amendment of the Articles of Incorporation to change our name to “WestMountain Company,” or a derivation thereof; and approving and ratifying MaloneBailey, LLP as our independent auditors for the fiscal year endingDecember 31, 2013. The entire cost of furnishing this Information Statement will be borne by the Company. We will request brokerage houses, nominees, custodians, fiduciaries and other like parties to forward this Information Statement to the beneficial owners of the Common Stock held of record by them. The Board of Directors has fixed the close of business on January 8, 2014 as the record date for the determination of shareholders who are entitled to receive this Information Statement (the “Record Date”). There were 9,517,402 shares of common stock issued and outstanding on January 8, 2014. We anticipate that this Information Statement will be mailed on or about XXX, 2014 to all shareholders of record as of the Record Date. - 2 - Only one Information Statement is being delivered to two or more security holders who share an address unless we have received contrary instruction from one or more of the security holders. We will promptly deliver upon written or oral request a separate copy of the Information Statement to a security holder at a shared address to which a single copy of the document was delivered. If you would like to request additional copies of the Information Statement, or if in the future you would like to receive multiple copies of information or proxy statements, or annual reports, or, if you are currently receiving multiple copies of these documents and would, in the future, like to receive only a single copy, please so instruct us by writing to the corporate secretary at the Company’s executive offices at the address specified above. PLEASE NOTE THAT THIS IS NOT A REQUEST FOR YOUR VOTE OR A PROXY STATEMENT, BUT RATHER AN INFORMATION STATEMENT DESIGNED TO INFORM YOU OF PRIOR ACTIONS TO BE TAKEN BY A MAJORITY OF OUR SHAREHOLDERS. WE ARE NOT ASKING YOU FOR A PROXY AND YOU ARE REQUESTED NOT TO SEND US A PROXY. Interests of Certain Persons in Opposition to Matters to be Acted Upon The shareholdings of our directors and officers are listed below in the section entitled “Principal Shareholders and Security Ownership of Management”. To our knowledge, our sole director has not advised that he intends to oppose any action described herein. Principal Shareholders And Security Ownership Of Management The following table sets forth information regarding beneficial ownership of the Common Stock as of the Record Date, (i) by each person who is known by us to beneficially own more than 5% of the Common Stock; (ii) by each of our officers and directors; and (iii) by all of our officers and directors as a group. BOCO Investments, LLC (3) 89.37% 123 North College Avenue, Suite 200 Fort Collins, Colorado 80254 Brian L. Klemsz (3) 123 North College Avenue, Suite 200 Fort Collins, Colorado 80254 Steve Anderson (4) 123 North College Avenue, Suite 200 Fort Collins, Colorado 80254 Joni K. Troska (5) 1.05% 123 North College Avenue, Suite 200 Fort Collins, Colorado 80254 All Officers and Directors as a Group (three persons) 16% (1) All ownership is beneficial and of record, unless indicated otherwise. (2) The Beneficial owner has sole voting and investment power with respect to the shares shown. (3) Mr. Klemsz owns 16.8% of WestMountain Blue, LLC, which is the record owner of the 8,505,652 shares. (4)Mr.Anderson has an option to acquire a total of 160,000 common shares of the Company, all at a price of $ 0.27 per share. (5) Ms. Troska has a stock option to acquire a total of 40,000 common shares of the Company, all at a price of $ 0.27 per share. - 3 - ITEM 1:ELECTION OF DIRECTORS Pursuant to our Articles of Incorporation, the holders of our common stock may elect directors. The Company has received the consent of a majority of the outstanding shares of the Common Stock approving the reelection of our sole member to our Board of Directors.The nominee has advised us that he is able and willing to serve as a director. The following table sets forth the name and age of the nominee of our Board of Directors. NAME AGE Brian L. Klemsz 55 His principal occupations for the past five years (and, in some instances, for prior years) is as follows: Mr. Klemsz has been the Company’s Treasurer, and sole Director since our inception. He was our President until 2011. Since March, 2007, he has been the Chief Investment Officer of BOCO Investments, LLC.He was President and Chief Investment Officer for GDBA Investments, LLLP, a private investment partnership from May 2000 until February 2007. He is currently also the President and sole Director of WestMountain Distressed Debt, Inc. and WestMountain Alternative Energy, Inc., and sole Director of WestMountain Asset Management, Inc., which are public companies. He is also a member of the Board of Directors of NexCore Healthcare Capital Corp. formerly know as CapTerra Financial Group, Inc., a public company and is Chairman of their Board’s audit committee. Mr. Klemsz received a Masters of Science in Accounting and Taxation in 1993 and a Masters of Science in Finance in 1990 from Colorado State University. He received his Bachelor of Science degree from the University of Colorado in 1981. ITEM 2: CHANGE OF NAME The Company has received the consent of a majority of the outstanding shares of the Common Stock approving the amendment of the Articles of Incorporation to change our name to “WestMountain Company,” or a derivation thereof. We believe that the proposed name more accurately reflects our business operations going forward. Accordingly, our Board of Directors believes it is appropriate and in the best interests of our Company and stockholders to change our corporate name to "WestMountain Company." When the name change is effective, we plan to apply to the appropriate regulatory authorities to keep the current trading symbol for our common stock on the OTC Bulletin Board. However, we cannot guarantee that we will not be required to change to another symbol. The currently outstanding stock certificates evidencing shares of our common stock bearing the name "WestMountain Asset Management, Inc."will continue to be valid and represent our shares following the name change. Following completion of the name change, you will be contacted on how to exchange your existing stock certificates for new stock certificates bearing the new name, if you wish. Your current stock certificates will continue to represent shares of our common stock and will not be affected by the name change. - 4 - ITEM 3: RATIFICATION OF THE APPOINTMENT OF INDEPENDENT AUDITORS The board of directors has appointed MaloneBailey, LLP (“MaloneBailey”) to serve as independent auditors for the fiscal year ending December 31, 2013. The Company has received the consent of a majority of the outstanding shares of the Common Stock approving and ratifying MaloneBailey as our independent auditors for the fiscal year endingDecember 31, 2013.MaloneBailey has served as our independent auditors since 2011, and is considered by our management to be well qualified.MaloneBailey billed an aggregate of $49,500 for the year ended December 31, 2012 and for professional services rendered for the audit of our annual financial statements and review of the financial statements included in our quarterly reports. MaloneBailey billed an aggregate of $4,000 for the year ended December 31, 2011 and for professional services rendered for the audit of our annual financial statements and review of the financial statements included in our quarterly reports. All services performed by MaloneBailey were pre-approved by the Board of Directors. On an annual basis, the Board of Directors will review and provide approval for services that may be provided by the independent auditors. INDEBTEDNESS OF EXECUTIVE OFFICERS AND DIRECTORS No executive officer, director or any member of these individuals' immediate families or any corporation or organization with whom any of these individuals is an affiliate is or has been indebted to us since the beginning of our last fiscal year. FAMILY RELATIONSHIPS There are no family relationships among our executive officers and directors. LEGAL PROCEEDINGS As of the date of this Information Statement, there are no material proceedings to which any of our directors, executive officers, affiliates or stockholders is a party adverse to us. EXECUTIVE COMPENSATION AND RELATED MATTERS Beginning in May, 2011, our President, Mr. Andersonreceives a salary of $120,000 per annum, plus a stock optionto acquire a total of 160,000 common shares of the Company, all at a price of $ 0.27 per share . We reimburse Mr. Anderson for all necessary and customary business related expenses. We have no plans or agreements which provide health care, insurance or compensation on the event of termination of employment or change in our control. Ms. Joni Troska, was appointed our corporate Secretary on March 19, 2009. In May 2011, she was hired as a part-time accountant and receives a salary of $48,000. Ms Troska also received an option to acquire a total of 40,000 common shares of the Company, all at a price of $ 0.27 per share. Otherwise, our officers and director are not accruing any compensation pursuant to any agreement with us. We did not compensate our sole director during 2013. Finally, no retirement, pension, profit sharing, or insurance programs or other similar programs have been adopted by us for the benefit of our employees. - 5 - CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS Bohemian Companies, LLC and BOCO Investments, LLC are two companies under common control.Mr. Klemsz, our President, has been the Chief Investment Officer of BOCO Investments, LLC since March 2007.Since there is common control between the two companies and a relationship with our Company President, we are considering all transactions with Bohemian Companies, LLC and BOCO Investments, LLC, related party transactions. On January 1, 2008, we entered into a Service Agreement with Bohemian Companies, LLC to provide us with certain defined services. These services include financial, bookkeeping, accounting, legal and tax matters, as well as cash management, custody of assets, preparation of financial documents, including tax returns and checks, and coordination of professional service providers as may be necessary to carry out the matters covered by the Service Agreement. Wecompensate Bohemian Companies, LLCby reimbursing this entity for the allocable portion of the direct and indirect costs of each employee of Bohemian Companies, LLCthat performs services on our behalf. We receive invoices monthly from Bohemian Companies, LLC. This Service Agreement matured on December 31, 2013 buthas been extended to December 31, 2014.Total expenses incurred with Bohemian Companies were $12,000 for the years ending December 31, 2012 and 2011.As of December 31, 2012 and 2011, the Company had a balance due to Bohemian Companies, LLC of $1,000 and $3,300, respectively. For the year ended December 31, 2012 and 2011 the Company recorded management fee revenues of $76,754 and $74,607, respectively, for asset management services performed on behalf of WestMountain Prime, LLC, a related party. The Company and WestMountain Prime, LLC are under common principal ownership. The Company earns management fees based on the size of the fundsmanaged, and incentive income based on the performance of the funds. For the year ended December 31, 2012 and 2011, the Company recorded aggregate advisory/consulting revenue of $114,500 and $23,000 respectively. Of the $114,500 and $23,000 recorded advisory/consulting revenue in 2012 and 2011, $97,500 and $18,000 is related party revenue. This advisory/consulting fee revenue relates to services performed on behalf of Nexcore Group LP and WestMountain Gold, Inc. The related parties and the Company are under common principal ownership. As of December 31, 2012 and 2011, the Company recorded $37,050 and $34,673, respectively, as accounts receivable related party on the balance sheet. The 2012 amount represents third and fourth quarter management fees that were due from WestMountain Prime, LLC. The total amount due was paid off in the following respective quarter. Additionally in 2011, $16,673 represented fourth quarter management fees due from WestMountain Prime, LLC and the remaining $18,000 was due the Company for consulting services provided to Nexcore for marketing and social media. Both amounts were paid off in the following respective quarter. On September 15, 2009 the Company signed a promissory note with BOCO Investments, Inc. (BOCO), a related party, in the amount of $150,000. The note matured in March 2010 and was extended to March 2011. On June 30, 2010 the Company entered into a new note for $500,000 with an interest rate of 10% and a maturity date of June 30, 2011. The September 15, 2009 note for $150,000 was canceled and the principal and interest was rolled into the new note. On June 29, 2011 the full amount of the note and related accrued interest, in the amount of $524,520, was converted to 455,652 of common shares at a price of $1.15. The closing stock price of the Company’s common stock on the date of conversion was $0.27 resulting in a gain on the conversion of $401,495. The gain was accounted for as a capital transaction due to BOCO being a related party. - 6 - As of December 31, 2012 and 2011, the following investments in marketable and nonmarketable securities were held in related parties due to common principal ownership: December 31, 2012 December 31, 2011 Market/Cost Market/Cost Company Name Shares Value Shares Value Marketable Securities Hangover Joes Holding Corp. Non-Marketable Securities Nexcore Healthcare Capital Corp. $1,645 $1,645 Totals SECTION 16(A) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE Section16(a) of the Securities Exchange Act of 1934 (the “34 Act”) requires our officers and directors and persons owning more than ten percent of the Common Stock, to file initial reports of ownership and changes in ownership with the Securities and Exchange Commission (“SEC”). Additionally, Item405 of RegulationS-K under the 34 Act requires us to identify in its Form 10-K and proxy statement those individuals for whom one of the above referenced reports was not filed on a timely basis during the most recent year or prior years. We have nothing to report in this regard. FORM 10-K UPON WRITTEN REQUEST OF ANY PERSON ENTITLED TO VOTE AT THE MEETING, ADDRESSED TO US, ATTENTION: SECRETARY, WESTMOUNTAIN ASSET MANAGEMENT, INC., , SUITE 200, FORT COLLINS, COLORADO 80524, WE WILL PROVIDE WITHOUT CHARGE, A COPY OF OUR ANNUAL REPORT ON FORM 10-K FOR THE FISCAL YEAR ENDED DECEMBER 31, 2012, AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. COMMUNICATIONS WITH STOCKHOLDERS Anyone who has a concern about our conduct, including accounting, internal accounting controls or audit matters, may communicate directly with our President. Such communications may be confidential or anonymous, and may be submitted in writing addressed care of Steve Anderson, President, WestMountain Asset Management, Inc., 123 North College Avenue, Suite 200, Fort Collins, Colorado 80524. All such concerns will be forwarded to the appropriate directors for their review, and will be simultaneously reviewed and addressed by the proper executive officers in the same way that other concerns are addressed by us. - 7 - SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, WestMountain Asset Management, Inc. has duly caused this report to be signed by the undersigned hereunto authorized. January XXX, 2014 WESTMOUNTAIN ASSET MANAGEMENT, INC. By: /s/ Steve Anderson Steve Anderson President -8 -
Exhibit 10.4 REGIONAL MANAGEMENT CORP. 2011 STOCK INCENTIVE PLAN RESTRICTED STOCK AWARD AGREEMENT (Executive Form) THIS OTHER STOCK-BASED AWARD AGREEMENT FOR RESTRICTED SHARES, or RESTRICTED STOCK AWARD AGREEMENT (the “Agreement”), is made effective as of the date set forth on the signature page hereto (hereinafter called the “Date of Grant”), between Regional Management Corp., a Delaware corporation (hereinafter called the “Company”), and the individual set forth on the signature page hereto (hereinafter called the “Participant”), pursuant to the Regional Management Corp. 2011 Stock Incentive Plan, as it may be amended and/or restated (the “Plan”), which Plan is incorporated herein by reference and made a part of this Agreement. 1. Grant of Award. The Company hereby grants to the Participant an Other Stock-Based Award in the form of an Award of restricted Shares (the “Award”), subject to the terms and conditions of the Plan and this Agreement, for the number of Shares (the “Shares”) set forth on the signature page hereto, subject to adjustment as set forth in the Plan. 2. Definitions. Whenever the following terms are used in this Agreement, they shall have the meanings set forth below. (a) Cause. “Cause” shall mean “Cause” as defined in any employment, severance, or similar agreement then in effect between the Participant and any of the Company or its Affiliates, or, if no such agreement containing a definition of “Cause” is then in effect or if such term is not defined therein, “Cause” shall mean (i) Participant’s engagement in misconduct which is materially injurious to the Company or its Affiliates, (ii) Participant’s continued failure to substantially perform his duties to the Company, (iii) Participant’s repeated dishonesty in the performance of his duties to the Company, (iv) Participant’s commission of an act or acts constituting any (x) fraud against, or misappropriation or embezzlement from, the Company or any of its Affiliates, (y) crime involving moral turpitude, or (z) offense that could result in a jail sentence of at least one year or (v) Participant’s material breach of any between the Participant and the Company. The determination of the existence of Cause shall be made by the Committee in good faith, which determination shall be conclusive for purposes of this Agreement. (b) Good Reason. “Good Reason” shall mean “Good Reason” or such similar concept as defined in any employment, severance, or similar agreement then in effect between the Participant and any of the Company or its Affiliates, or, if no such agreement containing a definition of “Good Reason” is then in effect or if such term is not defined therein, “Good Reason” shall mean without the Participant’s consent, a change caused by the Company in the Participant’s duties and responsibilities which is materially inconsistent with the Participant’s position at the applicable entity that is a member of the Company Group, or a material reduction in the Participant’s annual base salary (excluding any reduction in the Participant’s salary that is part of a plan to reduce salaries of comparably situated employees of any entity that is a member of the Company Group generally). Notwithstanding anything to the contrary, the Participant shall only have “Good Reason” to terminate Employment following the applicable entity’s failure to remedy the act which is alleged to constitute “Good Reason” within thirty (30) days following such entity’s receipt of written notice from the Participant specifying such act, so long as such notice is provided within sixty (60) days after such event has first occurred. The determination of the existence of Good Reason shall be made by the Committee in good faith, which determination shall be conclusive for purposes of this Agreement. (c) Qualifying Termination. “Qualifying Termination” shall mean the termination of Employment (i) as a result of the Participant’s death or Disability, (ii) by the Company and its Affiliates without Cause, or (iii) by the Participant with Good Reason. 3. Vesting; Forfeiture. (a) Subject to the Participant’s continued Employment through the applicable vesting date, the Award shall vest at the time(s) set forth on the signature page hereto. The Committee has authority to determine whether and to what degree the Award shall be deemed vested. (b) Notwithstanding Section 3(a) herein, (i) in the event of a termination of the Participant’s Employment by the Company and its Affiliates without Cause or by the Participant with Good Reason, during the six month period following a Change in Control, the Award shall, to the extent not then vested or previously forfeited or cancelled, become fully vested effective as of such termination date; and (ii) in the event that the Participant’s Employment with the Company is terminated due to a Qualifying Termination, then a pro-rata portion of the Award, determined as of the date of the Qualifying Termination in accordance with the provisions of this Section 3(b), shall be deemed vested. The pro-rata portion of the Award that shall be deemed vested shall be determined by multiplying the total number of the unvested Shares subject to vesting on the applicable vesting date, by a fraction, the numerator of which is the number of calendar days from the Date of Grant through the date of the Qualifying Termination, and the denominator of which is the total number of calendar days in the period commencing on the Date of Grant and ending on the applicable vesting date. The remaining unvested Shares subject to the Award shall be forfeited as of the date of the Qualifying Termination. 4. Rights as a Stockholder; Settlement of Award. (a) The Participant shall not have any rights to dividends, voting rights or other rights of a stockholder with respect to Shares subject to an Award unless and until certificates for such shares have been issued to him (or other written evidence of ownership in accordance with applicable laws, rules and regulations has been provided). A certificate or certificates for Shares subject to the Award (or other written evidence of ownership) shall be issued in the name of the Participant as soon as practicable after the Award has been granted. Notwithstanding the foregoing, the Committee may (i) require that the Participant deliver certificates (or other written evidence of ownership) for the Shares to the Committee or its designee to be held in escrow until the Award vests (in which case the Shares will be released to the Participant) or is forfeited (in 2 which case the Shares will be returned to the Company without the payment of consideration therefor); and/or (ii) require that the Participant deliver to the Company a stock power or similar instrument, endorsed in blank, related to the Shares subject to the Award which are subject to forfeiture. Except as otherwise provided in the Plan or this Agreement, the Participant shall have all voting, dividend and other rights of a stockholder with respect to the Shares following issuance of the certificate or certificates (or other written evidence of ownership) for the Shares; provided, however, that if any dividends are declared and paid by the Company with respect to such Shares, such dividends shall be subject to the same vesting schedule, forfeiture terms and other restrictions as are applicable to the Shares upon which such dividends are paid. (b) Notwithstanding any other provision of the Plan or this Agreement to the contrary, no Shares shall be distributable upon vesting of the Award prior to the completion of any registration or qualification of the Award or the Shares under applicable federal, state or foreign securities or other laws, or under any ruling or regulation of any governmental body or national securities exchange that the Committee shall in its sole discretion determine to be necessary or advisable. (c) The Company shall not be liable to the Participant for damages relating to any delays in issuing the certificates to him (subject to any Code Section 409A requirements), any loss of the certificates, or any mistakes or errors in the issuance of the certificates or in the certificates themselves. The Company may elect to recognize the Participant’s ownership through uncertificated book entry. (d) The Award, if vested in accordance with the terms of this Agreement, shall be payable in whole Shares. The total number of Shares that may be acquired upon vesting of the Award (or portion thereof) shall be rounded down to the nearest whole share. 5. No Right to Continued Employment; No Right to Further Awards. The granting of the Award evidenced hereby and this Agreement shall impose no obligation on the Company or any Affiliate to continue the Employment of the Participant and shall not lessen or affect the Company’s or its Affiliate’s right to terminate the Employment of such Participant. Except as otherwise provided in the Plan or this Agreement, all rights of the Participant with respect to the unvested portion of the Award shall terminate upon the Participant’s termination of Employment. The grant of the Award does not create any obligation to grant further awards. 6. Legend on Certificates. Unless the Company issues the Shares in uncertificated form, the certificates representing the Shares acquired upon vesting of the Award shall be subject to the rules, regulations and other requirements of the Securities and Exchange Commission, any stock exchange upon which such Shares are listed, and any applicable federal, state or foreign laws, and the Committee may cause a legend or legends to be put on any such certificates to make appropriate reference to such restrictions. 3 7. Transferability. The Award may not be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by the Participant otherwise than by will or by the laws of descent and distribution, and any such purported assignment, alienation, pledge, attachment, sale, transfer or encumbrance shall be void and unenforceable against the Company or any Affiliate; provided that the designation of a beneficiary shall not constitute an assignment, alienation, pledge, attachment, sale, transfer or encumbrance. No such permitted transfer of the Award to heirs or legatees of the Participant shall be effective to bind the Company unless the Committee shall have been furnished with written notice thereof and a copy of such evidence as the Committee may deem necessary to establish the validity of the transfer and the acceptance by the transferee or transferees of the terms and conditions hereof. 8. Withholding; Tax Consequences. (a) The Participant may be required to pay to the Company or any Affiliate and the Company shall have the right and is hereby authorized to withhold (including from payroll or any other amounts payable to the Participant), any applicable withholding taxes in respect of the Award, its vesting or any payment or transfer under or with respect to the Award and to take such other action as may be necessary in the opinion of the Committee to satisfy all obligations for the payment of such withholding taxes; provided, however, that no amounts shall be withheld in excess of the Company’s statutory minimum withholding liability. Without limiting the generality of the foregoing, to the extent permitted by the Committee, the Participant may satisfy, in whole or in part, the foregoing withholding liability by delivery of Shares held by the Participant (which are fully vested and not subject to any pledge or other security interest) or by having the Company withhold from the number of Shares otherwise deliverable to the Participant hereunder Shares with a Fair Market Value not in excess of the statutory minimum withholding liability. The Participant further agrees to make adequate provision for any sums required to satisfy all applicable federal, state, local and foreign tax withholding obligations of the Company which may arise in connection with the Award. (b) The Participant acknowledges that the Company has made no warranties or representations to the Participant with respect to the tax consequences (including but not limited to income tax consequences) with respect to the transactions contemplated by this Agreement, and the Participant is in no manner relying on the Company or its representatives for an assessment of such tax consequences. The Participant acknowledges that there may be adverse tax consequences upon the grant or vesting of the Award and/or the acquisition or disposition of the Shares subject to the Award and that he or she has been advised that he or she should consult with his or her own attorney, accountant and/or tax advisor regarding the decision to enter into this Agreement and the consequences thereof. The Participant also acknowledges that the Company has no responsibility to take or refrain from taking any actions in order to achieve a certain tax result for the Participant. 9. Compliance with Applicable Laws. Upon the acquisition of any Shares pursuant to the vesting of the Award, the Participant will make or enter into such written representations, warranties and agreements as the Committee 4 may reasonably request in order to comply with applicable securities or other laws or with the Plan or this Agreement. Notwithstanding any other provision in the Plan or this Agreement to the contrary, the Company shall not be obligated to issue, deliver or transfer Shares, to make any other distribution of benefits, or to take any other action, unless such delivery, distribution or action is in compliance with all applicable laws, rules and regulations (including but not limited to the requirements of the Securities Act of 1933, as amended). 10. Notices. Any notice necessary under this Agreement shall be addressed to the Company in care of its Secretary at the principal executive office of the Company and to the Participant at the address appearing in the personnel records of the Company for the Participant or to either party at such other address as either party hereto may hereafter designate in writing to the other. Any such notice shall be deemed effective upon receipt thereof by the addressee. 11. Choice of Law. the state of Delaware without regard to conflicts of laws, and in accordance with applicable federal laws of the United States. 12. Award Subject to Plan. By entering into this Agreement, the Participant agrees and acknowledges that the Participant has received and read a copy of the Plan and Plan prospectus. The Participant acknowledges and agrees that the Award is subject to the Plan. The terms and provisions of the Plan, as they may be amended from time to time, are hereby incorporated herein by reference. In the event of a conflict between any express term or provision contained herein and a term or provision of the Plan, the applicable terms and provisions of the Agreement will govern and prevail, unless the Committee determines otherwise. Unless otherwise defined herein, capitalized terms in this Agreement shall have the same definitions as set forth in the Plan. 13. Signature in Counterparts. This Agreement may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. 14. Amendment; Waiver; Superseding Effect. This Agreement may be modified or amended as provided in the Plan. The waiver by the Company of a breach of any provision of this Agreement by the Participant shall not operate or be construed as a waiver of any subsequent breach by the Participant. The Agreement supersedes any statements, representations or agreements of the Company with respect to the grant of the Award or any related rights, and the Participant hereby waives any rights or claims related to any such statements, representations or agreements. 5 15. Recoupment and Forfeiture. As a condition to receiving this Award, the Participant agrees that he shall abide by all provisions of any equity retention policy, compensation recovery policy, stock ownership guidelines and/or other similar policies maintained by the Company, each as in effect from time to time and to the extent applicable to Participant from time to time. In addition, the Participant shall be subject to such compensation recovery, recoupment, forfeiture or other similar provisions as may apply at any time to the Participant under applicable laws, rules or regulations. [Signature Page to Follow] 6 SIGNATURE PAGE TO RESTRICTED STOCK AWARD AGREEMENT IN WITNESS WHEREOF, the parties have caused this Agreement to be effective as of the Date of Grant specified below. Date of Grant: Shares Subject to Award: Vesting Date: Participant: Printed Name: Regional Management Corp. By: Its: Printed Name: 7
Name: 2005/112/EC: Council Decision of 31 January 2005 appointing a Spanish alternate member of the Committee of the Regions Type: Decision Subject Matter: Europe; EU institutions and European civil service; personnel management and staff remuneration Date Published: 2006-06-13; 2005-02-09 9.2.2005 EN Official Journal of the European Union L 36/6 COUNCIL DECISION of 31 January 2005 appointing a Spanish alternate member of the Committee of the Regions (2005/112/EC) THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular Article 263 thereof, Having regard to the proposal from the Spanish Government, Whereas: (1) On 22 January 2002 the Council adopted Decision 2002/60/EC appointing the members and alternate members of the Committee of the Regions (1). (2) A seat as an alternate member of the Committee of the Regions has become vacant following the resignation of Mr Carlos Javier FERNÃ NDEZ CARRIEDO, notified to the Council on 29 November 2004, HAS DECIDED AS FOLLOWS: Sole Article Mr TomÃ ¡s VILLANUEVA RODRÃ GUEZ, Consejero de EconomÃ a y Empleo, Comunidad AutÃ ³noma de Castilla y LÃ ©on, is hereby appointed alternate member of the Committee of the Regions in place of Mr Carlos Javier FERNÃ NDEZ CARRIEDO for the remainder of his term of office, which runs until 25 January 2006. Done at Brussels, 31 January 2005. For the Council The President J. ASSELBORN (1) OJ L 24, 26.1.2002, p. 38.
Exhibit 10.1 AGREEMENT This Agreement dated as of June 24, 2013, by and between PACKAGING CORPORATION OF AMERICA, having its principal place of business at 1955 West Field Court, Lake Forest, Illinois 60045 (together with its consolidated subsidiaries, “PCA”), and Paul T. Stecko (“Mr. Stecko”). WHEREAS, Mr. Stecko will retire from his position as Executive Chairman of PCA and become the non-executive Chairman of the board of directors of PCA effective December 30, 2013 (the “Retirement Date”). WHEREAS, PCA desires that Mr. Stecko provide services to PCA upon his retirement; NOW, THEREFORE, in consideration of the mutual promises herein contained, the parties do hereby agree: 1. Effective Date of this Agreement. Mr. Stecko is currently party to an Employment Agreement, dated June 28, 2010 (the “Employment Agreement”), with PCA. The Employment Agreement is hereby extended through the Retirement Date, on which date the Employment Agreement shall terminate. To the extent not inconsistent herewith, those provisions that are intended to survive the termination of the Employment Agreement shall remain in force and effect after such termination. Except for Section 4 and Sections 9 through 16 (which are intended to take effect on the date hereof), this Agreement shall take effect on the Retirement Date. 2. Duties. (a) Upon the Retirement Date, Mr. Stecko will serve as non-executive chairman of the board of directors of PCA (the “Board”) and shall perform such responsibilities as are customarily associated with such position, including regularly attending and presiding over meetings of the Board, setting Board meeting schedules and agendas and actively participating in all appropriate Board functions. Mr. Stecko further agrees to be considered for nomination as a director of PCA for any term that commences prior to the expiration of the Agreement, should PCA’s board of directors determine to nominate him to serve for such term. It is hereby understood that this Agreement does not set forth any terms or conditions of service on PCA’s board of directors, which are otherwise determined by PCA’s board of directors and/or set forth in other governing instruments of PCA. (b) From and after the Retirement Date, Mr. Stecko will handle specific projects and assignments in an advisory capacity, primarily relating to strategic matters, investor and shareholder relations and management succession planning, in each case as determined in consultation with the CEO and the Board of PCA. Mr. Stecko will devote best efforts in the performance of duties assigned and will act in the best interest of PCA in carrying out those responsibilities. Mr. Stecko shall participate as requested by PCA as to ongoing litigation or other matters involving PCA arising out of Mr. Stecko’s employment with PCA. The parties acknowledge and agree that Mr. Stecko shall perform services under this Agreement only as an independent contractor and not as an employee or agent of PCA. 3. Fees and Retention Incentive. (a) Fees. From and after the Retirement Date, Mr. Stecko shall be paid fees of $978,516 per annum, payable in semimonthly installments consistent with PCA’s normal payment practices (prorated for any partial month of service). Such fees are intended to 2 compensate Mr. Stecko for service on the Board as well as for the services described in Section 2(b) hereof, and Mr. Stecko will not receive separate compensation for Board service. Mr. Stecko shall be entitled to reimbursement for reasonable expenses incurred in connection with his performance of this Agreement. (b) Retention Incentive. The following incentive will apply if Mr. Stecko completes two years of service as non-executive chairman of the Board and as otherwise provided under this Agreement. On June 24, 2013, Mr. Stecko shall be granted by the PCA a restricted stock award under the Company’s Amended and Restated 1999 Long-term Equity Incentive Plan (i) for 12,000 shares of the Company’s common stock, (ii) to become vested on a cliff basis as provided in the Company’s restricted stock Agreement, subject to Mr. Stecko’s continued service to PCA under, and in compliance with, this Agreement (with service on the board after the Expiration Data qualifying as services for purposes of the Restricted Stock), (iii) to be subject to full accelerated vesting upon the occurrence of a “Change in Control” of PCA prior to the Expiration Date or upon the death or “Disability” (each, as defined in the Company’s Amended and Restated 1999 Long-Term Equity Incentive Plan) of Mr. Stecko prior to the Expiration Date, and (iv) with such other terms and conditions as are set forth in a restricted stock award agreement consistent with the Company’s standard form of restricted stock award agreement used for other senior executives of the Company under the Company’s Amended and Restated 1999 Long-Term Equity Incentive Plan. 4. Restricted Stock and Stock Options. It is hereby understood that entry into, and performance of, this Agreement will not result in the forfeiture of any restricted stock or stock options held by Mr. Stecko. 3 5. No Benefits; Board Service. (a) Except as set forth in this Section 5, PCA and Mr. Stecko agree that the remuneration provided for in Section 3 shall constitute the total compensation due for services hereunder and that no employee benefits of any kind will be provided except as due Mr. Stecko as a result of service as a PCA employee under PCA’s plans in which Mr. Stecko participated. Mr. Stecko will not accrue additional benefits or service time as a result of the performance of this Agreement. (b) Until the Retirement Date, Mr. Stecko shall receive the compensation and benefits payable under the Employment Agreement. It is hereby understood that Mr. Stecko shall be considered for a 2013 Performance Incentive Plan award on a similar basis as similarly participating executive officers of PCA at the time awarded by the compensation committee of PCA’s board of directors, consistent with the performance criteria established for such award by the compensation committee. Mr. Stecko will not be entitled to receive annual cash incentive awards for periods after 2013. (c) Mr. Stecko shall be provided with office space and administrative support as is reasonably necessary to the performance of his duties hereunder. 6. Term. Unless earlier terminated by the mutual agreement of the parties, this Agreement shall continue in full force and effect until December 31, 2015 (the “Expiration Date”). Either party may terminate this Agreement for convenience at any time prior to the Expiration Date by delivering at least 90 days’ prior written notice to the other party. In the event this Agreement is terminated by PCA pursuant to the previous sentence with effect prior to the Expiration Date, Mr. Stecko shall receive the fees pursuant to Section 3(a) through the Expiration Date. Unless terminated pursuant to this Section 6, this Agreement will continue month-to-month after the Expiration Date. 4 7. Confidential Information. Mr. Stecko acknowledges that the information, observations and data (including without limitation trade secrets, know-how, research plans, business, accounting, distribution and sales methods and systems, manufacturing methods and systems, sales and profit figures and margins and other technical or business information, business, marketing and sales plans and strategies, cost and pricing structures, and manufacturing techniques of PCA disclosed or otherwise revealed to him, or discovered or otherwise obtained by him or of which he has become or becomes aware, directly or indirectly, while employed or otherwise acting for PCA, whether prior to the date of this Agreement as an employee, pursuant to this Agreement or otherwise) (all of the foregoing being collectively, “Confidential Information”) are the property of PCA, and Mr. Stecko agrees that PCA has a protectable interest in such Confidential Information. Therefore, Mr. Stecko agrees that he shall not disclose to any person or use for his own purposes any Confidential Information without the prior written consent of PCA, unless and only to the extent that the aforementioned matters: (a) become or are generally known to and available for use by the public other than as a result of Mr. Stecko’s acts or omissions or (b) are required to be disclosed by judicial process or law (provided that Mr. Stecko shall give advance written notice of such requirement to PCA as soon as practicable under the circumstances to enable PCA to seek an appropriate protective order or confidential treatment). PCA shall deliver to Mr. Stecko at any time that PCA may reasonably request all memoranda, notes, plans, records, reports, computer tapes, printouts and software and 5 other documents and data (and copies thereof) which constitute Confidential Information or Work Product (as defined below) which he may then possess or have under his control. This Section 7 shall survive the termination of this Agreement. 8. Work Product. (a) Mr. Stecko hereby assigns to PCA all right, title and interest in and to all inventions, developments, methods, process, designs, analyses, reports and all similar or related information (in each case whether or not patentable), all copyrightable works, all trade secrets, confidential information and know-how, and all other intellectual property rights that both (a) were conceived, reduced to practice, developed or made by Mr. Stecko in the course of providing, the services provided hereunder and (b) either (i) relate to PCA’s business or (ii) are conceived, reduced to practice, developed or made using any of the equipment, supplies, facilities, assets or resources of PCA (including but not limited to, any intellectual property rights) (“Work Product”). All Work Product prepared by Mr. Stecko shall be deemed to have been prepared for PCA and shall be considered as works for hire and all rights and the copyrights therefor shall be owned by PCA. Mr. Stecko hereby assigns to PCA all rights, titles and interests in and to said copyrights in the United States of America and elsewhere, including registration and publication rights, rights to create derivative works and all other rights which are incident to copyright ownership. (b) In the event any court holds such Work Product not to be works for hire, Mr. Stecko shall assign such creative works to PCA, at its request, in consideration of the fees paid to Mr. Stecko hereunder. Mr. Stecko shall promptly at PCA’s sole cost and expense perform all actions reasonably requested by PCA to establish and confirm PCA’s 6 ownership of the Work Product (including, without limitation, executing and delivering assignments, consents, powers of attorney, applications and other instruments). This Section 8(b) shall survive the termination of this Agreement. 9. Noncompetition. Mr. Stecko agrees that, for the period commencing on the date hereof and ending on the later of (a) December 31, 2015; and (b) the date of termination of this Agreement (the “Noncompete Period”), he shall not, directly or indirectly (whether for compensation or otherwise) own or hold any interest in, manage, operate, control, consult with, render services for, or in any manner participate in the business of manufacturing, marketing, designing, distributing or selling containerboard (including, without limitation, linerboard and corrugating medium) or corrugated containers, displays or products (collectively, and each individually, being the “Business”) or any business competitive with the Business in the United States or in any locale of any other country in which PCA conducts the Business, whether as a general or limited partner, proprietor, common or preferred equityholder, officer, director, agent, employee, consultant, trustee, affiliate or otherwise. Nothing in this Section 9 shall prohibit Mr. Stecko from (i) being a passive owner of not more than 2% of the outstanding securities of any publicly traded company engaged in the Business, so long as Mr. Stecko has no active participation in the business of such company or (ii) serving on any boards of directors of companies on which he currently serves, consistent with the requirements of law and PCA’s polices applicable to PCA directors. 10. Non-Solicitation. During the Noncompete Period, Mr. Stecko shall not directly or indirectly through another entity (i) induce or attempt to induce any employee 7 of PCA, or any of their respective affiliates to leave the employ of PCA or any of its affiliates, or in any way interfere with the relationship between PCA or any of its affiliates and any employee thereof, (ii) solicit to hire any person who, at anytime during the Noncompete Period, was an employee of PCA or any of its affiliates or (iii) induce or attempt to induce any customer, developer, client, member, supplier, licensee, licensor, broker, sales agent, franchisee or other business relation of PCA or any of its affiliates to cease doing business with PCA or any of its affiliates, or in any way interfere with the relationship between any such customer, developer, client, member, supplier, licensee, licensor, broker, sales agent, franchisee or business relation and PCA or any of its affiliates (including, without limitation, making any negative statements or communications about PCA or its affiliates). 11. Enforcement. If, at the time of enforcement of any of Sections 7 through 10, a court of competent jurisdiction shall hold that the period, scope or area restrictions stated herein are unreasonable under circumstances then existing, the parties hereto agree that the maximum period, scope or area reasonable under such circumstances shall be substituted for the stated period, scope or area and that the court shall be allowed and directed to revise the restrictions contained herein to cover the maximum period, scope and area permitted by applicable law. The parties hereto acknowledge and agree that Mr. Stecko has had access to Confidential Information and Work Product, that the provisions of Sections 7 through 10 are necessary, reasonable and appropriate for the business interests of the PCA, that irreparable injury will result to PCA if Mr. Stecko breaches any of the provisions of Sections 7 through 10 and that money damages would not be an adequate remedy therefor and that PCA will not have 8 any adequate remedy at law for any such breach. Therefore, in the event of a breach or threatened breach of this Agreement, in addition to other rights and remedies existing in its favor, PCA shall be entitled to specific performance and/or immediate injunctive or other equitable relief from any court of competent jurisdiction in order to enforce or prevent any violations of the provisions hereof (without the necessity of showing actual money damages, or posting a bond or other security). Nothing contained herein shall be construed as prohibiting PCA or any of its successors or assigns from pursuing any other remedies available to it for such breach or threatened breach, including the recovery of damages. 12. Mr. Stecko’s Representations and Acknowledgements. Mr. Stecko hereby represents and warrants to PCA that (i) Mr. Stecko is not a party to or bound by any employment agreement, noncompete agreement, nonsolicitation agreement or confidentiality agreement with any other person that, in each case would conflict with, or otherwise adversely affect Mr. Stecko’s ability to perform, this Agreement, and (ii) this Agreement constitutes the valid and binding obligation of Mr. Stecko, enforceable against Mr. Stecko in accordance with its terms. Mr. Stecko hereby acknowledges and represents that he fully understands the terms and conditions contained herein and intends for such terms and conditions to be binding on and enforceable against him. Mr. Stecko expressly agrees and acknowledges that the restrictions contained in Sections 7 through 10 do not preclude Mr. Stecko from earning a livelihood, nor do they unreasonably impose limitations on Mr. Stecko’s ability to earn a living. Mr. Stecko acknowledges that he has carefully read this Agreement and has given careful consideration to the restraints imposed upon Mr. Stecko by this Agreement, and is in full accord as to the 9 necessity of such restraints. Mr. Stecko expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. 13. Notices. All notices and other communications hereunder shall be in writing and shall be deemed if delivered personally or by facsimile transmission, or mailed by registered or certified mail (return receipt requested), postage prepaid, to the parties at the following addresses (or at such other address for a party as shall be specified by like notice; provided that notices of a change of address shall be effective only upon receipt thereof): (i) To PCA: Packaging Corporation of America 1955 West Field Court Lake Forest, IL 60045 Attention: CEO with a copy to: SVP-Legal Facsimile No: 847-482-2194 (ii) To Mr. Stecko: At the address and facsimile set forth in the records of PCA 14. Assignment. This Agreement and the rights and responsibilities hereunder shall not be assigned or delegated by either party without the prior written consent of the other party; provided, however, that PCA shall have the right, without the prior written consent of Mr. Stecko, to assign and transfer its rights under that Agreement to any of its affiliates or any purchaser who acquires all or a substantial part of the assets of its business or capital stock. 10 15. Entire Agreement. This Agreement constitutes the complete and only Agreement between the parties and all prior agreements are merged into this Agreement. No amendment or modification of the Agreement between the parties hereto shall be of effect or enforceable unless stated in writing and signed by Mr. Stecko and an officer of PCA. 16. Governing Law; Venue. This Agreement shall be governed by, and construed in accordance with, the substantive laws of Illinois without regard to conflict of laws. Jurisdiction and venue with regard to any suit in connection with this Agreement shall reside solely in the courts of Lake County, Illinois or in the United States District Court for the Northern District of Illinois. In that context, and without limiting the generality of the foregoing, each of the parties hereto irrevocably and unconditionally (a) submits in any proceeding relating to this Agreement or for the recognition and enforcement of any judgment in respect thereof (a “Proceeding”), to the exclusive jurisdiction of the courts of Lake County, Illinois, the United States District Court for the Northern District of Illinois, and appellate courts having jurisdiction of appeals from any of the foregoing and agrees that all claims in respect of any such Proceeding shall be heard and determined in such Illinois state court or, to the extent permitted by law, in such federal court, (b) consents that any such Proceeding may and shall be brought in such courts and waives any objection that Mr. Stecko or PCA may now or thereafter have to the venue or jurisdiction of any such Proceeding in any such court or that such Proceeding was brought in an inconvenient court and agrees not to plead or claim the same, (c) WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF 11 THIS AGREEMENT, OR MR. STECKO’S OR PCA’S PERFORMANCE UNDER, OR THE ENFORCEMENT OF, THIS AGREEMENT, (d) agrees that service of process in any such Proceeding may be effected by mailing a copy of such process by registered or certified mail (or any substantially similar form of mail), postage prepaid, to such party at Mr. Stecko’s or PCA’s address as provided in Section 13 hereof, and (e) agrees that nothing in this Agreement shall affect the right to effect service of process in any other manner permitted by the laws of the State of Illinois. Each party shall be responsible for its own legal fees incurred in connection with any dispute hereunder. 12 IN WITNESS HEREOF, the parties have signed and delivered this Agreement on the date first above written. Packaging Corporation of America Paul T. Stecko By: /s/ Mark W. Kowlzan /s/ Paul T. Stecko Title: CEO 13
Exhibit 12.1 COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES Six Months Ended Year Ended December 31 (in millions) June30, 2009 Loss from continuing operations before provision for income taxes $ ) $ ) $ ) $ ) $ ) $ ) Adjustments: Minority interest in income of subsidiaries with fixed charges - - (1
Name: Commission Regulation (EEC) No 1476/87 of 27 May 1987 fixing the corrective amount applicable to the refund on malt Type: Regulation Date Published: nan 28 . 5. 87 Official Journal of the European Communities No L 138/71 COMMISSION REGULATION (EEC) No 1476/87 of 27 May 1987 fixing the corrective amount applicable to the refund on malt whereas the same Regulation also provides that account must be taken of the quantity of cereals needed for making malt, the economic aspect of exports and the need to avoid disturbances on the Community market ; Whereas the world market situation or the specific requi rements of certain markets may make it necessary to vary the corrective amount according to destination ; Whereas the corrective amount must be fixed at the same time as the refund and according to the same procedure ; whereas it may be altered in the period between fixings ; Whereas, if the system of corrective amounts is to operate normally, corrective amounts should be calculated on the following basis : in the case of currencies which are maintained in rela tion to each other at any given moment within a band of 2,25 %, a rate of exchange based on their central rate, multiplied by the corrective factor provided for in the last paragraph of Article 3 ( 1 ) of Council Regula tion (EEC) No 1676/85Q, for other currencies, an exchange rate based on the arithmetic mean of the spot market rates of each of these currencies recorded over a given period in rela tion to the Community currencies referred to in the preceding indent, and the aforesaid coefficient ; THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Economic Community, Having regard to the Act of Accession of Spain and Portugal, Having regard to Council Regulation (EEC) No 2727/75 of 29 October 1975 on the common organization of the market in cereals ('), as last amended by Council Regula tion (EEC) No 1579/86 (2), Having regard to Council Regulation (EEC) No 2746/75 of 29 October 1975 laying down general rules for granting export refunds on cereals and criteria for fixing the amount of such refunds (3), Having regard to the opinion of the Monetary Committee, Whereas Article 16 (4) of Regulation (EEC) No 2727/75 provides that the export refund applicable to cereals on the day on which application for an export licence is made, adjusted for the threshold price in force during the month of exportation, must be applied on request to exports to be effected during the period of validity of the export licence ; whereas, in this case, a corrective amount must be applied to the refund ; Whereas Council Regulation (EEC) No 2744/75 of 29 October 1975 on the import and export system for products processed from cereals and from rice (4), as last amended by Regulation (EEC) No 1588/86 0, made possible the fixing of a corrective amount for certain products listed in Article 1 (d) of Regulation (EEC) No 2727/75 ; Whereas Regulation Commission (EEC) No 1281 /75 () laid down detailed rules for the advance fixing of export refunds for cereals and certain products processed from cereals ; Whereas, pursuant to that Regulation, when the corrective amount is being fixed in respect of malt, account must be taken of the existing situation and the future trend with regard to the possibilities and conditions for the sale of the cereals concerned and of malt on the world market ; Whereas it follows from applying the provisions set out above that the corrective amount must be as set out in the Annex hereto ; Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Cereals, HAS ADOPTED THIS REGULATION : Article 1 The corrective amount referred to in Article 16 (4) of Regulation (EEC) No 2727/75 which is applicable to export refunds fixed in advance in respect of malt shall be as set out in the Annex hereto . Article 2 This Regulation shall enter into force on 1 June 1987. (') OJ No L 281 , 1 . 11 . 1975, p. 1 . (2) OJ No L 139, 24. 5 . 1986, p. 29 . (3) OJ No L 281 , 1 . 11 . 1975, p. 78 . (<) OJ No L 281 , 1 . 11 . 1975, p. 65 . () OJ No L 139 , 24 . 5 . 1986, p. 47. ( «) OJ No L 131 , 22. 5 . 1975, p. 15 . 0 OJ No L 164, 24. 6 . 1985, p. 1 . No L 138/72 Official Journal of the European Communities 28 . 5 . 87 This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Brussels, 27 May 1987. For the Commission Frans ANDRIESSEN Vice-President ANNEX to the Commission Regulation of 27 May 1987 fixing the corrective amount applicable to the refund on malt (ECU/tonne) CCT heading No Current 6 1st period 7 2nd period 8 3rd period 9 4th period 10 5th period 11 11.07 A I a) 0 50,00 50,00 50,00 50,00 50,00 11.07 A I b) 0 50,00 50,00 50,00 50,00 50,00 11.07 A II a) 0 50,00 50,00 50,00 50,00 50,00 11.07 A II b) 0 50,00 50,00 50,00 50,00 50,00 11.07 B 0 50,00 50,00 50,00 50,00 50,00 (ECU/tonne) CCT heading No 6th period 12 7th period 1 8th period 2 9th period 3 10th period 4 11th period 5 11.07 A I a) 50,00 50,00 50,00 50,00 50,00 50,00 11.07 A I b) 50,00 50,00 50,00 50,00 50,00 50,00 11.07 A II a) 50,00 50,00 50,00 50,00 50,00 50,00 11.07 A II b) 50,00 50,00 50,00 50,00 50,00 50,00 11.07 B 50,00 50,00 50,00 50,00 50,00 50,00
Exhibit 10.11 Schedule of Indemnification Agreements 1. Indemnification Agreement dated as of November 19, 2002 entered into between Pillowtex Corporation and David A. Perdue. 2. Indemnification Agreement dated as of November 19, 2002 entered into between Pillowtex Corporation and Bradley I. Dietz. 3. Indemnification Agreement dated as of November 19, 2002 entered into between Pillowtex Corporation and Jeffrey J. Keenan. 4. Indemnification Agreement dated as of November 19, 2002 entered into between Pillowtex Corporation and Scott L. Graves. 5. Indemnification Agreement dated as of November 19, 2002 entered into between Pillowtex Corporation and Kenneth Liang. 6. Indemnification Agreement dated as of November 19, 2002 entered into between Pillowtex Corporation and Michael T. Gannaway. 7. Indemnification Agreement dated as of November 19, 2002 entered into between Pillowtex Corporation and Michael R. Harmon. 8. Indemnification Agreement dated as of November 19, 2002 entered into between Pillowtex Corporation and A. Allen Oakley. 9. Indemnification Agreement dated as of November 19, 2002 entered into between Pillowtex Corporation and Scott E. Shimizu. 10. Indemnification Agreement dated as of November 19, 2002 entered into between Pillowtex Corporation and Richard A. Grissinger. 11. Indemnification Agreement dated as of November 19, 2002 entered into between Pillowtex Corporation and John F. Sterling. 12. Indemnification Agreement dated as of November 19, 2002 entered into between Pillowtex Corporation and Thomas D. D’Orazio.
EXHIBIT 10.2 FORM OF AWARD AGREEMENT FOR AMERICAN STATES WATER COMPANY 2018 SHORT-TERM INCENTIVE PROGRAM March 22, 2018 To: 2018 Short-Term Incentive Program Participants American States Water Company (the “Company”) is pleased to inform you that you have been selected as a participant in the Company’s 2018 Short-Term Incentive Program (the “Bonus Program”). Unless otherwise defined in this award agreement, capitalized terms used in this award agreement have the same meanings as in the Bonus Program. As a participant in the Bonus Program, you are eligible to earn two separate cash bonuses for the 2018 calendar year—an Objective Bonus and a Discretionary Bonus. Your total Target Aggregate Bonus is set forth opposite your name in the Bonus Program and is equal to the sum of the target amount of your Objective Bonus plus the target amount of your Discretionary Bonus. Your Objective Bonus is subject to the terms of the Bonus Program and the Company’s Performance Incentive Plan (the “Plan”), and will only become payable if all of the applicable terms and conditions of both the Bonus Program and the Plan are satisfied. The portion of your Target Aggregate Bonus attributable to your Objective Bonus will become payable based on the Company’s attainment of the specific Performance Targets established for the Business Criteria and the Additional Objective Criteria that have been established for you. Your applicable Business Criteria, Additional Objective Criteria, Performance Targets (including the threshold, target and maximum Performance Targets) and Payout Percentages are set forth in Exhibit A to the Bonus Program. Please note, however, that payment of your Objective Bonus remains subject to the Compensation Committee’s discretion to reduce Objective Bonuses pursuant to Section 4 of the Plan. Your Discretionary Bonus is subject to the terms of the Bonus Program (but not the Plan), and will only become payable if all of the applicable terms and conditions of the Bonus Program are satisfied. The portion of your Target Aggregate Bonus attributable to your Discretionary Bonus will become payable based on the Company’s assessment of your attainment of the core performance objectives for your position, and you will only be entitled to receive a Discretionary Bonus if you are determined to meet the standards established for your position. These individual performance requirements applicable to your Discretionary Bonus are referred to as your Individual Performance Measures. The Payout Percentage for your Discretionary Bonus is set forth in Exhibit A to the Bonus Program. Any Objective Bonus or Discretionary Bonus that becomes payable to you will be paid as soon as practicable following the Compensation Committee’s determination and certification pursuant to Section 8 of the Bonus Program, but in no event later than December 31, 2019. However, any Objective Bonus or Discretionary Bonus that becomes payable to you is subject to recoupment pursuant to the Company’s Policy Regarding the Recoupment of Certain Performance-Based Compensation Payments as in effect from time to time or as otherwise may be required by law, and you agree to promptly make any reimbursement requested by the Board of Directors or the Compensation Committee pursuant to such policy with respect to any such bonuses. In addition, you agree that the Company and/or any of its affiliates may deduct from any amounts it may owe you from time to time (such as wages or other compensation) any and all amounts that you are required to reimburse the Company pursuant to such policy. Copies of the Bonus Program and the Plan are being provided to you with this award agreement. The Company advises you to read these documents carefully because they are legal documents that establish the terms and conditions of your Objective Bonus and your Discretionary Bonus. The Bonus Program and the Plan are each incorporated into this award agreement by reference and will control in the event there is any conflict between the terms of this award agreement and the Bonus Program or Plan, as applicable. Sincerely, Robert J. Sprowls Accepted and Agreed: [Executive]

Name: Commission Regulation (EC) No 648/94 of 23 March 1994 amending Regulation (EEC) No 2169/93 on the application of a minimum price for certain soft fruits originating in Poland Type: Regulation Date Published: nan No L 80/18 Official Journal of the European Communities 24. 3 . 94 COMMISSION REGULATION (EC) No 648/94 of 23 March 1994 amending Regulation (EEC) No 2169/93 on the application of a minimum price for certain soft fruits originating in Poland Poland complied with the minimum price by levying countervailing charges ; whereas, on the basis of recent information received by the Commission relating to the third three months of the marketing year, it is clear that, bearing in mind the import price, one of the criteria is not being complied with in respect of certain soft fruit originating in Poland ; whereas, countervailing charges should therefore be reintroduced for these products, THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Community, Having regard to Council Regulation (EEC) No 1988/93 of 19 July 1993 on the system of minimum import prices for certain soft fruits originating in Hungary, Poland, the Czech Republic, Slovakia, Romania and Bulgaria ('), and in particular Article 2 thereof, Whereas Article 4 of Commission Regulation (EEC) No 2140/93 of 28 July 1993 laying down detailed rules for the application of the minimum import price system for certain soft fruits originating in Hungary, Poland, the Czech Republic, Slovakia, Romania and Bulgaria and the minimum prices applicable until 30 April 1994 (2) provides that the Commission is to adopt any necessary measures if certain criteria are not complied with ; Whereas, by Commission Regulation (EEC) No 2169/93 (3), as last amended by Regulation (EEC) No 2731 /93 (4), the Commission decided to ensure that each consignment of certain soft fruits originating in HAS ADOPTED THIS REGULATION : Article 1 The Annex of Regulation (EEC) No 2169/93 is replaced by the Annex hereto. Article 2 This Regulation shall enter into force on the day of 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, 23 March 1994. For the Commission Rene STEICHEN Member of the Commission (') OJ No L 182, 24. 7. 1993, p. 4. (2) OJ No L 191 , 31 . 7. 1993, p. 98 . 0 OJ No L 194, 3 . 8 . 1993, p. 24. 0 OJ No L 247, 5. 10 . 1993, p. 6. 24. 3 . 94 Official Journal of the European Communities No L 80/19 ANNEX CN code Description Taric code Period of application ex 0811 20 39 Frozen blackcurrants not containing added sugar or other sweet- 0811 20 3910 From 24 March to 30 April ening matter, without stalks 1994 ex 0811 20 39 Frozen blackcurrants not containing added sugar or other sweet- 0811 20 3990 From 24 March to 30 April ening matter, other 1994
Exhibit 32 Certification pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 Edsel R. BurnsChief Executive Officer and Larry A. Blount, Chief Financial Officer of Energy Services of America Corporation (the “Company”) each certify in their capacity as officers of the Company that they have reviewed the Quarterly report of the Company on Form 10-Q for the quarter ended June 30, 2010 and that to the best of their knowledge: 1. the report fully complies with the requirements of Sections 13(a) 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 results of operations of the Company. Date: August 9, 2010 /s/ Edsel R. Burns Edsel R. Burns Chief Executive Officer Date: August 9, 2010 /s/ Larry A. Blount Larry A. Blount Chief Financial Officer
EATON VANCE TAX-MANAGED EMERGING MARKETS FUND Supplement to Prospectus dated November 1, 2008 1. Effective April 27, 2009, the Morgan Stanley Capital International Emerging Markets Index is the Funds primary benchmark index. 2. Effective July 8, 2009, please note the following change to the definition of emerging market countries. The following will replace the first paragraph in "Investment Objective & Principal Policies and Risks": The Funds investment objective is to seek long-term, after-tax returns. Under normal market conditions, the Fund will invest at least 80% of its net assets in equity securities of companies located in emerging market countries. This policy will not be changed unless Fund shareholders are given 60 days advance notice of the change. For purposes of the 80% policy, net assets include any assets purchased with borrowings for investment purposes. A company will be considered to be located in an emerging market country if it is domiciled in or derives more than 50% of its revenues or profits from emerging market countries. Emerging market countries are generally countries not considered to be developed market countries, and therefore not included in the Morgan Stanley Capital International (MSCI) World Index. The Fund ordinarily is exposed to over thirty emerging market countries at all times and invests in more than 500 stocks. The Funds investment objective and most of the Funds policies may be changed without shareholder approval. There is no present intention to make any such change and shareholders will receive 60 days notice of any material change in the investment objective. May 6, 2009 TMEMPS
Exhibit 10.8 (i) EMPLOYMENT AGREEMENT THIS AGREEMENT, made as of June 13, 2005, between Mr. Kent Guichard, (the “Employee”) and American Woodmark Corporation, a Virginia corporation (the “Company”). WHEREAS, the Company desires to assure that it will have the benefit of the continued service and experience of the Employee, who is an integral part of the Company’s senior management, and the Employee is willing to enter into an agreement to such end upon the terms and conditions set forth in this Agreement. NOW, THEREFORE, in consideration of the foregoing and the mutual agreements herein contained, the parties agree as follows: 1. Employment. The Company hereby employs the Employee and the Employee hereby accepts employment upon and agrees to the terms and conditions set forth herein. 2. Term. The term of employment under this Agreement (the “Term”) shall commence upon execution of this Agreement by both parties and end on December 31, 2006; provided, however, that beginning on January 1, 2006, and each January 1 thereafter, the Term of this Agreement shall automatically be extended for one additional calendar year unless, on or before November 1 of the preceding year, either party gives notice that employment under this Agreement will not be so extended; and further provided that if a Change of Control (as defined below) occurs during the original or extended term of this Agreement, this Agreement shall continue in effect for a period of 24 months beyond the month in which the Change of Control occurred. Notwithstanding the foregoing, as provided in Section 7(c), this Agreement shall terminate immediately upon the Employee’s death, disability or retirement, or if the Employee voluntarily terminates his employment under circumstances to which Section 7(d) does not apply. 3. Compensation. a. Salary. During the Employee’s employment hereunder, the Company shall pay the Employee for all services rendered by the Employee a base salary at an annual rate of at least $359,000, with upward annual adjustments as the Company shall deem appropriate from time to time and as approved according to the general practices of and under the authority levels required by the Company. Such salary shall be payable to the Employee in accordance with the Company’s usual payroll practices for salaried employees. b. Annual Cash Bonus. In addition to base salary, the Employee shall be eligible to participate in the Company’s annual incentive program with a bonus opportunity of between 0% and 120% of the Employee’s base salary. The actual amount of such bonus for any 1 fiscal year shall be related to the achievement of certain performance objectives to be set at the beginning of each fiscal year by the Board of Directors of the Company (the “Board”). Nothing in this Agreement, however, shall be construed as a guarantee of an annual payment of the annual cash bonus. c. Other Executive Compensation Benefits. The Employee shall also be covered by any other executive compensation policies, benefits, plans, or programs as are afforded generally by the Company from time to time to its senior personnel, including but not limited to grants of stock options and shareholder value units and participation in the American Woodmark Corporation Pension Restoration Plan. Nothing in this Agreement, however, shall be construed as a guarantee that the Board or the Compensation Committee of the Board (the “Committee”) will approve any level of such benefits that are at the sole discretion of the Board or the Committee. d. Other Salaried Benefits. The Employee shall also be covered by any employee benefit plans, policies, or programs as are generally available from time to time to other salaried employees of the Company. 4. Duties. The Employee shall continue to perform his duties as Executive Vice President of the Company and shall faithfully and to the best of his ability perform such duties and responsibilities as may be reasonably assigned by the Board. 5. Extent of Services. During the Employee’s employment hereunder, the Company expects and the Employee agrees that the Employee shall devote sufficient time, attention and energy to the business of the Company so as to adequately fulfill his assigned duties and responsibilities. Furthermore, the Company and the Employee agree that the business of the Company shall take reasonable priority over any other active business engaged in by the Employee. 6. Restrictive Covenants. a. Non-competition Restriction. Except with the prior written consent of the Company, the Employee shall not, either during his employment hereunder or for the period of time after termination of his employment hereunder during which the Employee accepts severance payments pursuant to Section 7(b) (if applicable), directly or indirectly manage, operate, control, be employed by, participate in, consult with, render services to, or be connected in any manner with the management, operation, ownership or control of any business or venture in competition in the United States with the business of the Company. For purposes of this Section 6(a), a business or venture shall be deemed to be in competition with the business of the Company if that business or venture or any of its affiliates manufactures, distributes, or otherwise engages in the design, sale, or transportation of cabinets for residential use, including but not limited to, such cabinet products intended for primary use in the kitchen or bathroom. Nothing in this Section 6(a), however, shall prohibit the Employee from owning securities of the Company or from owning as an inactive investor up to 5% of the outstanding voting securities of any issuer which is listed on the New York or American Stock Exchange or as to which trading is reported or quoted on the NASDAQ system. If the Employee elects to directly or indirectly 2 manage, operate, control, be employed by, participate in, consult with, render services to, or be connected in any manner with the management, operation, ownership or control of any business or venture which is in competition in the United States with the business of the Company, the Employee acknowledges that the Company is entitled to immediately terminate any and all severance payments being made pursuant to Section 7(b), if any, and other benefits payable under this Agreement as a result of the Employee’s termination of employment under the conditions set forth in Section 7(b). b. Non-solicitation Agreement. Except with the prior written consent of the Company, the Employee shall not directly or indirectly hire or employ in any capacity or solicit the employment of or offer employment to or entice away or in any other manner persuade or attempt to persuade any person employed by the Company or any of its subsidiaries to leave the employ of any of them. This Agreement shall remain in full force and effect for a period of 18 months after the end of the Term. c. Confidential Information. The Employee further agrees to keep confidential, and not to use for his personal benefit or for any other person’s benefit, any and all proprietary information received by the Employee relating to inventions, products, production methods, financial matters, sources of supply, markets, marketing methods and customers of the Company in existence on the date hereof or developed by or for the Company during the Term. This Section 6(c) shall remain in full force and effect after the Term without limit in point of time, but shall cease to apply to information that legitimately comes into the public domain. d. Specific Enforcement. It is agreed and understood by the parties hereto that, in view of the nature of the business of the Company, the restrictions in Sections 6(a), (b) and (c) above are reasonable and necessary to protect the legitimate interests of the Company, monetary damages alone are not an adequate remedy for any breach of such provisions, and any violation thereof would result in irreparable injuries to the Company. The Employee therefore acknowledges that, in the event of his violation of any of such restrictions, the Company shall be entitled to obtain from any court of competent jurisdiction preliminary and permanent injunctive relief as well as damages and an equitable accounting of all earnings, profits and other benefits arising from such violation, which rights shall be cumulative and in addition to any other rights or remedies to which the Company may be entitled. e. Severability and Extension. If the period of time or the area specified in Section 7(a) above is determined to be unreasonable in any proceeding, such period shall be reduced by such number of months or the area shall be reduced by the elimination of such portion thereof, or both, so that such restrictions may be enforced for such time and in such area as is determined to be reasonable. If the Employee violates any of the restrictions contained in Section 7(a) above, the restrictive period shall not run in favor of the Employee from the time of the commencement of any such violation until such time as such violation shall cease. 7. Termination of Employment and Severance Payments. a. Termination for Cause. During the Term, the Company may terminate the Employee’s employment under this Agreement at any time for Cause (as hereinafter defined) 3 upon written notice specifying the Cause and the date of termination. Payments under this Agreement shall cease as of the date of termination for Cause. For purposes of this Agreement, “Cause” means neglect of duty which is not corrected after 90 days’ written notice thereof; misconduct, malfeasance, fraud, or dishonesty which materially and adversely affects the Company or its reputation in the industry; or the conviction for, or the entering of a plea of Nolo Contendere to, a felony or a crime involving moral turpitude. b. Termination without Cause. During the Term, the Company may terminate the Employee’s employment under this Agreement at any time for any reason other than Cause upon written notice specifying the date of termination. If on an effective date that is during the Term, the Company terminates the Employee’s employment for reasons other than Cause (which includes but is not limited to termination by the Company for what the Company believes to be Cause when it is ultimately determined that the Employee was terminated without Cause), then the Company shall pay the Employee severance payments equal to his base salary for a period of 18 months. For purposes of the preceding sentence, the Employee’s base salary shall be equal to the greater of (i) the base salary in effect on the date of termination or (ii) the Employee’s highest base salary rate in effect during the Term of this Agreement. Severance payments shall be made in accordance with the Company’s usual payroll practices for salaried employees over a period consistent with the period of severance as defined above. c. Termination in Event of Death, Disability, Retirement or Voluntary Quit. If the Employee dies, becomes disabled, or retires during the Term, or if the Employee voluntarily terminates his employment during the Term under circumstances to which Section 7(d) does not apply, his employment under this Agreement shall terminate immediately and payment of his base salary hereunder shall cease as of the date of termination; provided, however, that the Company shall remain liable for payment of any compensation owing but not paid as of the date of termination for services rendered before termination of employment. For purposes of this Agreement, the Employee shall be deemed to be disabled if the Company determines, with the assistance of independent experts selected by the Company, that the Employee is unable to perform his duties hereunder for any period of three consecutive months or for six months in any twelve-month period. d. Termination on Change of Control. By delivering 15 days’ written notice to the Company, the Employee may terminate his employment under this Agreement for any reason at any time within two years after a Change of Control. For purposes of this Agreement, “Change of Control” means an event described in (i), (ii), (iii), or (iv): (i) The acquisition by a Group of Beneficial Ownership of 20% or more of the Stock or the Voting Power of the Company, but excluding for this purpose: (A) any acquisition of Stock by the Company (or a subsidiary), or an employee benefit plan of the Company; (B) any acquisition of Stock by management employees of the Company; or (C) the ownership of Stock by a Group that owns 10% or more of the Stock or Voting Power of the Company on the date of this Agreement; provided, however, that the acquisition of additional Stock by any such Group other than management 4 employees in an amount greater than 5% of the then outstanding Stock shall not be excluded and shall constitute a Change of Control. (ii) Individuals who constitute the Board of Directors of the Company on the date of this Agreement (the “Incumbent Board”) cease to constitute at least a majority of the Board of Directors of the Company, provided that any director whose nomination was approved by a majority of the Incumbent Board shall be considered a member of the Incumbent Board unless such individual’s initial assumption of office is in connection with an actual or threatened election contest. (iii) Approval by the shareholders of the Company of a reorganization, merger or consolidation, in each case, in which the owners of 100% of the Stock or Voting Power of the Company do not, following such reorganization, merger or consolidation, beneficially own, directly or indirectly, more than 50% of the Stock or Voting Power of the corporation resulting from such reorganization, merger or consolidation. (iv) A complete liquidation or dissolution of the Company or the sale or other disposition of all or substantially all of the assets of the Company. (v) For purposes of this Agreement, “Group” means any individual, entity or group within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Act”); “Beneficial Ownership” has the meaning in Rule 13d-3 promulgated under the Act; “Stock” means the then outstanding shares of common stock of the Company; and “Voting Power” means the combined voting power of the outstanding voting securities entitled to vote generally in the election of directors. e. Severance Payments. If the Employee terminates his employment within two years after a Change of Control pursuant to Section 7(d), or if the Company terminates the Employee’s employment for any reason other than Cause (as defined in Section 7(a)) either within three months before or within two years after a Change of Control, the Employee shall be entitled to a severance payment under this Section 7(e) equal to 2.99 times the sum of (i) the Employee’s annual base salary in effect at the termination of employment or, if greater, the Employee’s largest annual base salary rate in effect during the term of this Agreement, plus (ii) an amount equal to the greater of the average of the bonuses paid to the Employee for the three fiscal years preceding the year in which employment is terminated or 60% of the maximum eligible annual cash bonus for the year of termination. This severance payment shall be made to the Employee in a single lump sum within 10 business days of the date of the Employee’s termination of employment. Notwithstanding the preceding sentence, if the independent accountants acting as auditors for the Company on the date of the Change of Control determine that such single payment, together with other compensation received by the Employee that is contingent on a Change of Control, would constitute “excess parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended, and regulations 5 thereunder, the single payment to the Employee shall be reduced to the maximum amount which may be paid without such payments in the aggregate constituting “excess parachute payments.” 8. Vacation. During the Term, the Employee shall be entitled to a vacation in each calendar year in accordance with the Company’s policy; during this vacation, his compensation shall be paid in full. 9. Insurance. In accordance with Section 3(d), while he is employed by the Company, the Employee and his eligible dependents as insureds shall be covered under existing insurance policies on the same terms and conditions as offered to all full-time salaried employees. In accordance with Company policy, coverage under the Company’s insurance policies terminates on the date that employment terminates. If the Company terminates the Employee’s employment during the Term of this Agreement for any reason except Cause, or if the Employee terminates his employment within two years following a Change of Control as contemplated by Section 7(d), the Company shall reimburse the Employee for the required COBRA premiums to the extent the Company subsidizes the premium for active salaried employees for a period not to exceed 18 months so long as the Employee is not eligible for coverage under any other group medical plan. If the Employee becomes eligible for coverage under another group medical plan, the Company shall cease reimbursement for COBRA premiums on the date the Employee first becomes eligible for coverage under the other plan. The Company’s reimbursement for COBRA premiums shall include a gross-up amount for tax liability at the Employee’s incremental tax rate. Nothing in this Section 9 shall be interpreted to prohibit the Company from changing or terminating any benefit package or program at any time and from time to time so long as the benefits hereunder, considered in the aggregate, are comparable at any given time to the benefits provided to similarly situated employees of the Company at that time. 10. Notice. All notices, requests, demands and other communications hereunder shall be in writing and shall be effective upon the mailing thereof by registered or certified mail, postage prepaid, and addressed as set forth below: a. If to the Company: Mr. Jake Gosa President & CEO American Woodmark Corporation 3102 Shawnee Drive Winchester, VA 22601 b. If to the Employee: Mr. Kent Guichard 104 Katie Lane Winchester, VA 22602 Any party may change the address to which notices are to be sent by giving the other party written notice in the manner herein set forth. 6 11. Waiver of Breach. Waiver by either party of a breach of any provision of this Agreement by the other shall not operate as a waiver of any subsequent breach by such other party. 12. Entire Agreement. This Agreement contains the entire agreement of the parties in this matter and supersedes any other agreement, oral or written, concerning the employment or compensation of the Employee by the Company. It may be changed only by an agreement in writing signed by both parties hereto. 13. Governing Law. This Agreement shall be governed by the laws of the Commonwealth of Virginia, without regard to its choice of law provisions. 14. Benefit. This Agreement shall inure to the benefit of, and shall be binding upon, and shall be enforceable by and against the Company, its successors and assigns, and the Employee, his heirs, beneficiaries and legal representatives. IN WITNESS WHEREOF, the Employee and the Company have executed this Agreement as of the day and year above written. AMERICAN WOODMARK CORPORATION By: /s/ James Gosa Mr. James Gosa EMPLOYEE /s/ Kent Guichard Mr. Kent Guichard Executive Vice President 7
Title: (NY) Fraud in Bank Account Question:My friend submitted a fraud check back in October of this year and was wondering how can he get out of this situation from the bank. The bank overdrew his account and froze it. The money from the check was taken out a day later after it was deposited and it went somewhere without his knowledge. He had some money in his account before the check, and he wants to know how to recover that money back without getting into any trouble. Answer #1: Tell your buddy, "Welcome to ChexSystems and not having a bank account for the next 7 years."
Name: Commission Regulation (EC) No 2059/96 of 28 October 1996 postponing the application of Council Regulation (EEC) No 1907/90 on certain marketing standards for eggs in Sweden Type: Regulation Subject Matter: marketing; Europe; animal product Date Published: nan Avis juridique important\|31996R2059Commission Regulation (EC) No 2059/96 of 28 October 1996 postponing the application of Council Regulation (EEC) No 1907/90 on certain marketing standards for eggs in Sweden Official Journal L 276 , 29/10/1996 P. 0011 - 0011COMMISSION REGULATION (EC) No 2059/96 of 28 October 1996 postponing the application of Council Regulation (EEC) No 1907/90 on certain marketing standards for eggs in Sweden THE COMMISSION OF THE EUROPEAN COMMUNITIES,Having regard to the Treaty establishing the European Community,Having regard to the Act of Accession of Austria, Finland and Sweden, and in particular Article 149 thereof,Whereas Sweden took measures, in accordance with Article 167 of the Act of Accession to postpone until 1 January 1997 the application of Council Regulation (EEC) No 1907/90 (1), as last amended by Regulation (EC) No 818/96 (2),Whereas the economic situation of the Swedish egg industry after accession as well as other factors like the envisaged reorganization of the Swedish food control system, the uncertainty about future welfare and hygiene rules have delayed the transition from the existing Swedish regime to the common marketing standards for eggs; whereas Sweden should be authorized to postpone application of Council Regulation (EEC) No 1907/90 until 1 January 1998 in accordance with Article 149 (1) of the Act of Accession;Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Poultrymeat and Eggs,HAS ADOPTED THIS REGULATION:Article 1 Application of Council Regulation (EEC) No 1907/90 for eggs produced and marketed in Sweden shall be postponed until 1 January 1998.Article 2 This Regulation shall enter into force on the 1 January 1997.This Regulation shall be binding in its entirety and directly applicable in all Member States.Done at Brussels, 28 October 1996.For the CommissionFranz FISCHLERMember of the Commission(1) OJ No L 173, 6. 7. 1990, p. 5.(2) OJ No L 111, 4. 5. 1996, p. 1.
Exhibit 99.1 Contact: Jerald L. Shaw, President and Chief Executive Officer Terri L. Degner, EVP and Chief Financial Officer Anchor Bancorp (360) 491-2250 Anchor Bancorp Announces Annual Meeting Results and Agreement with Joel S. Lawson IV Lacey, WA (October 22, 2015) - Anchor Bancorp (NASDAQ - ANCB) (“Company”), the parent company for Anchor Bank (“Bank”), today announced that shareholders approved all proposals presented at the 2015 Annual Meeting of Shareholders (“Annual Meeting”) held on October 21, 2015 in Lacey, Washington and that all three management nominees for director were re-elected and that its other proposals were approved.The Company also announced that in connection with the Annual Meeting it had entered into an agreement (“Agreement”) with Joel S. Lawson IV (“Mr. Lawson”) for the appointment of an additional director to the Boards of Directors of the Company and the Bank.Mr. Lawson was not eligible to serve as a director pursuant to the Washington residency requirement contained in the Company’s bylaws; however, Mr. Lawson received approximately 67% of the outstanding shares of the Company, in favor of his election to the Board of Directors.Consequently, the Board of Directors entered into an Agreement to appoint one of two candidates, who are Washington residents, selected by Mr. Lawson to the Company’s and the Bank’s Boards of Directors.Mr. Lawson’s designee to the Board of Directors will chair a newly formedcommittee authorized to explore strategic alternatives and retain an investment banker.A copy of the Agreement with Mr. Lawson and a record of the votes cast at the Annual Meeting will be contained on a Form 8-K filed by the Company with the Securities and Exchange Commission. Commenting on the annual meeting, Jerald L. Shaw, the Company’s President and Chief Executive Officer said, “We are not only grateful for the shareholder support we received, but just as importantly, appreciate the valuable input from all of our shareholders.We fully understand and agree with the message that the shareholder vote provided of the shareholders’ desire that the Company carefully review its strategic options to maximize shareholder value.In this regard, we look forward to working with the new director and our Board of Directors in management’s continuing efforts to enhance our shareholder value.” Mr. Lawson commented, “I am deeply appreciative of the overwhelming support of my fellow shareholders.It is my strong conviction that the mutually-beneficial arrangement we reached with Anchor for the addition of an independent new director on the Boardand the formation of a strategy committee this director will chair will serve as catalysts for meaningful value-enhancement at the Company and will further the best interests of all Anchor shareholders.” About the Company Anchor Bancorp is headquartered in Lacey, Washington and is the parent company of Anchor Bank, a community-based savings bank primarily serving Western Washington through its 11 full-service banking offices (including one Wal-Mart in-store location) within Grays Harbor, Thurston, Lewis, Pierce and Mason counties, Washington. The Company's common stock is traded on the NASDAQ Global Market under the symbol "ANCB" and is included in the Russell 2000 Index. For more information, visit the Company's web site www.anchornetbank.com. Forward-Looking Statements: Certain matters discussed in this press release may contain forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. These forward-looking statements relate to, among other things, expectations of the business environment in which we operate, projections of future performance, perceived opportunities in the market, potential future credit experience, and statements regarding our mission and vision. These forward-looking statements are based upon current management expectations and may, therefore, involve risks and uncertainties. Our actual results, performance, or achievements may differ materially from those suggested, expressed, or implied by forward-looking statements as a result of a wide variety or range of factors including, but not limited to: increased competitive pressures; changes in the interest rate environment; the credit risks of lending activities, including changes in the level and trend of loan delinquencies and write-offs that may be impacted by deterioration in the housing and commercial real estate markets and may lead to increased losses and nonperforming assets in our loan portfolio, and may result in our allowance for loan losses not being adequate to cover actual losses, and require us to materially increase our reserves; changes in general economic conditions and conditions within the securities markets; legislative and regulatory changes; results of examinations of us by the Federal Reserve Bank of San Francisco and our bank subsidiary by the Federal Deposit Insurance Corporation (“FDIC”), the Washington State Department of Financial Institutions, 3443399-2 Division of Banks (“Washington DFI”) or other regulatory authorities, including the possibility that any such regulatory authority may, among other things, take actions or require us to increase our reserve for loan losses, write-down the value of assets, change our regulatory capital position or restrict our ability to borrow funds or maintain or increase deposits, which could adversely affect our liquidity and earnings and other factors described in the Company’s latest Annual Report on Form 10-K and Quarterly Reports on Form 10-Q and other filings with the Securities and Exchange Commission-which are available on our website at www.anchornetbank.com and on the SEC’s website at www.sec.gov. Any of the forward-looking statements that we make in this Press Release and in the other public statements we make may turn out to be wrong because of the inaccurate assumptions we might make, because of the factors illustrated above or because of other factors that we cannot foresee. Because of these and other uncertainties, our actual future results may be materially different from those expressed or implied in any forward-looking statements made by or on our behalf and the Company's operating and stock price performance may be negatively affected. Therefore, these factors should be considered in evaluating the forward-looking statements, and undue reliance should not be placed on such statements. We do not undertake and specifically disclaim any obligation to revise any forward-looking statements to reflect the occurrence of anticipated or unanticipated events or circumstances after the date of such statements.These risks could cause our actual results for fiscal 2016 and beyond to differ materially from those expressed in any forward-looking statements by, or on behalf of us, and could negatively affect the Company’s operations and stock price performance. 3443399-2
Exhibit 10.02 LOGO [g31974image001.jpg] REVOLVING NOTE September 29, 2006 $25,000,000.00 For value received, the undersigned Rackable Systems, Inc., a Delaware corporation, with an address of 1933 Milmont Drive, Milpitas, California 95035 (the “Borrower”), promises to pay to the order of HSBC Bank USA, National Association, a bank organized under the laws of the United States of America with an address of 601 Montgomery Street, San Francisco, California 94111 (together with its successors and assigns, the “Bank”), the principal amount of Twenty-Five Million Dollars and Zero Cents ($25,000,000.00) or, if less, such amount as may be the aggregate unpaid principal amount of all loans or advances made by the Bank to the Borrower pursuant hereto on or before the Expiration Date of this Note, together with interest from the date hereof on the unpaid principal balance from time to time outstanding until paid in full. The aggregate principal balance outstanding shall bear interest, and interest shall be payable, in accordance with that certain Interest Rate Election Rider, attached hereto and made a part hereof (the “Interest Election Rider”). Principal and interest shall be payable at the Bank’s main office or at such other place as the Bank may designate in writing in immediately available funds in lawful money of the United States of America without set-off, deduction or counterclaim. Interest shall be calculated on the basis of actual number of days elapsed in a 360-day year. This Note is a revolving note and, subject to the foregoing and in accordance with the provisions hereof and of any and all other agreements between the Borrower and the Bank related hereto, the Borrower may, at its option, borrow, pay, prepay and reborrow hereunder at any time prior to the expiration date of this note or such earlier date as the obligations of the Borrower to the Bank under this Note, and any other agreements between the Bank and the Borrower related hereto, shall become due and payable; provided, however, that in any event the principal balance outstanding hereunder shall at no time exceed the face amount of this Note. This Note shall continue in full force and effect until all obligations and liabilities evidenced by this Note are paid in full, even if, from time to time, there are no amounts outstanding respecting this Note. Notwithstanding that this Note shall be due and payable on the expiration date of this Note, the Bank’s agreement to advance funds respecting this Note shall expire on 364 days from the date of this Note (“Expiration Date”) and there shall be no further advances respecting this Note unless the Bank agrees in writing in the sole discretion of the Bank to extend such expiration date. Nothing contained in this Note or otherwise is intended, nor shall constitute, an obligation of the Bank to make any loan or advance. At the option of the Bank (but automatically in the case of an Insolvency Default (as hereinafter defined)), this Note shall become immediately due and payable without notice or demand upon the occurrence at any time of any of the following events of default (each, an “Event of Default”): (1) default of any liability, obligation, covenant or undertaking of the Borrower, hereof to the Bank, hereunder or otherwise, including, without limitation, failure to pay in full and when due any installment of principal or interest or default of the Borrower, hereof under any other loan document delivered by the Borrower, or in connection with the loan evidenced by this Note or any other agreement by the Borrower, with the Bank; (2) default of any liability, obligation or undertaking of the Borrower, hereof to any other party; (3) if any statement, representation or warranty heretofore, now or hereafter made by the Borrower, hereof in connection with the loan evidenced by this Note or in any supporting financial statement of the Borrower, hereof shall be determined by the Bank to have been false or misleading in any material respect when made; (4) if the Borrower, hereof is a corporation, trust, partnership or limited liability company, the liquidation, termination or dissolution of any such organization, or the merger or consolidation of such organization into another entity, or its ceasing to carry on actively its present business or the appointment of a receiver for its property; (5) the death or judicial declaration of incompetence of the Borrower, hereof and, if the Borrower, hereof is a partnership or limited liability company, the death or judicial declaration of incompetence of any partner or member; (6) the institution by or against the Borrower, hereof of any proceedings under the Bankruptcy Code 11 USC §101 et seq. or any other law in which the Borrower, hereof is alleged to be insolvent or unable to pay its debts as they mature, or the making by the Borrower, hereof of an assignment for the benefit of creditors or the granting by the Borrower, hereof of a trust mortgage for the benefit of creditors (each of the foregoing in this subclause, an “Insolvency Default”); (7) the service upon the Bank of a writ in which the Bank is named as trustee of the Borrower; (8) a judgment or judgments for the payment of money shall be rendered against the Borrower, hereof, and any such judgment shall remain unsatisfied and in effect for any period of thirty (30) consecutive days without a stay of execution; (9) any levy, lien (including mechanics lien), seizure, attachment, execution or similar process shall be issued or levied on any of the property of the Borrower; (10) the occurrence of such a change in the condition or affairs (financial or otherwise) of the Borrower, or the occurrence of any other event or circumstance, such that the Bank, reasonably deemed that the prospects for timely or full payment or performance of any obligation of the Borrower, hereof to the Bank has been or may be impaired. Any payments received by the Bank on account of this Note shall, at the Bank’s option, be applied first, to accrued and unpaid interest; second, to the unpaid principal balance hereof; third to any reasonable costs, expenses or charges then owed to the Bank by the Borrower; and the balance to escrows, if any. Notwithstanding the foregoing, any payments received after demand for payment shall be applied in such manner as the Bank may determine. The Borrower hereby authorizes the Bank to charge any deposit account which the Borrower may maintain with the Bank for any payment required hereunder without prior notice to the Borrower. If pursuant to the terms of this Note, the Borrower is at any time obligated to pay interest on the principal balance at a rate in excess of the maximum interest rate permitted by applicable law for the loan evidenced by this Note, the applicable interest rate shall be immediately reduced to such maximum rate and all previous payments in excess of the maximum rate shall be deemed to have been payments in reduction of principal and not on account of the interest due hereunder. More specifically, if from any circumstances whatsoever, fulfillment of any provision of this Note or any other loan document excuted and delivered in connection with this Note, at the time performance of such provision becomes due, would exceed the limit on interest then permitted by any applicable usury statute or any other applicable law, the Bank may, at its option (a) reduce the obligations to be fulfilled to such limit on interest, or (b) apply the amount in excess of such limit on interest to the reduction of the outstanding principal balance of the obligations, and not to the payment of interest, with the same force and effect as though Borrower had specifically designated such sums to be so applied to principal and Bank had agreed to accept such extra payments(s) as a premium-free prepayment, so that in no event shall any exaction be possible under this Note or any other loan document that is in excess of the applicable limit on interest. It is the intention of Borrower and Bank that the total liability for payments in the nature of interest shall not exceed the limits imposed by any applicable state or federal interest rate laws. The provisions of this paragraph shall control every other provision of this Note, and any provision of any other loan document in conflict with this paragraph. The Borrower represents to the Bank that the proceeds of this Note will not be used for personal, family or household purposes or for the purpose of purchasing or carrying margin stock or margin securities within the meaning of Regulations U and X of the Board of Governors of the Federal Reserve System, 12 C.F.R. Parts 221 and 224. No delay or omission on the part of the Bank in exercising any right hereunder shall operate as a waiver of such right or of any other right of the Bank, nor shall any delay, omission or waiver on any one occasion be deemed a bar to or waiver of the same or any other right on any future occasion. The Borrower and of this Note, regardless of the time, order or place of signing, waives presentment, demand, protest, notice of intent to accelerate, notice of acceleration and all other notices of every kind in 2 connection with the delivery, acceptance, performance or enforcement of this Note and assents to any extension or postponement of the time of payment or any other indulgence, to any substitution, exchange or release of collateral, and to the addition or release of any other party or person primarily or secondarily liable and waives all recourse to suretyship and guarantor defenses generally, including any defense based on impairment of collateral. To the maximum extent permitted by law, the Borrower of this Note waive and terminate any homestead rights and/or exemptions respecting any premises under the provisions of any applicable homestead laws, including without limitation, California Code of Civil Procedure Sections 704-710 et seq. The Borrower of this Note shall indemnify, defend and hold the Bank and the Bank Affiliates and their directors, officers, employees, agents and attorneys harmless against any claim brought or threatened against the Bank by the Borrower, or by any other person (as well as from attorneys’ reasonable fees and expenses in connection therewith) on account of the Bank’s relationship with the Borrower (which may be defended, compromised, settled or pursued by the Bank with counsel of the Bank’s selection, but at the expense of the Borrower), except for any claim arising out of the gross negligence or willful misconduct of the Bank. The Borrower of this Note agrees to pay, upon demand, costs of collection of all amounts under this Note including, without limitation, principal and interest, or in connection with the enforcement of, or realization on, any security for this Note, including, without limitation, to the extent permitted by applicable law, reasonable attorneys’ fees and expenses. Upon demand for payment of any amounts hereunder, interest shall accrue at a rate per annum equal to the aggregate of 3.0% plus the rate provided for herein. If any payment due under this Note is unpaid for 10 days or more, the Borrower shall pay, in addition to any other sums due under this Note (and without limiting the Bank’s other remedies on account thereof), a late charge equal to 5.0% of such unpaid amount. This Note shall be binding upon the Borrower hereof and upon their respective heirs, successors, assigns and legal representatives, and shall inure to the benefit of the Bank and its successors, endorsees and assigns. The Borrower hereby waives presentment, demand, protest, notice of dishonor, notice of protest and all other notices and demands of every kind, and all suretyship defenses of any kind, in each case that would otherwise be available in connection with this Note including, without limitation, any right (whether now or hereafter existing) to require the holder hereof to first proceed against the Borrower, for any security. In the event that at any time, a surety is liable upon only a portion of the Borrower’s obligations under this Note and the Borrower provides partial satisfaction of any such obligation(s), each of the Borrower hereof, if any, hereby waives any right it would otherwise have, under Section 2822 of the California Civil Code, to designate the portion of the obligations to be satisfied. The designation of the portion of the obligation to be satisfied shall, to the extent not expressly made by the terms of this Note, be made by the Bank rather than Borrower. The liabilities of the Borrower of this Note are joint and several; provided, however, the release by the Bank of the Borrower, shall not release any other person obligated on account of this Note. Any and all present and future debts of the Borrower of this Note are subordinated to the full payment and performance of all present and future debts and obligations of the Borrower to the Bank. Each reference in this Note to the Borrower, is to such person individually and also to all such persons jointly. No person obligated on account of this Note may seek contribution from any other person also obligated, unless and until all liabilities, obligations and indebtedness to the Bank of the person from whom contribution is sought have been irrevocably satisfied in full. The release or compromise by the Bank of any collateral shall not release any person obligated on account of this Note. The Borrower hereof authorizes the Bank to complete this Note if delivered incomplete in any respect. A photographic or other reproduction of this Note may be made by the Bank, and any such reproduction shall be admissible in evidence with the same effect as the original itself in any judicial or administrative proceeding, whether or not the original is in existence. 3 The Borrower will from time to time execute and deliver to the Bank such documents, and take or cause to be taken, all such other further action, as the Bank may request in order to effect and confirm or vest more securely in the Bank all rights contemplated by this Note or any other loan documents related thereto (including, without limitation, to correct clerical errors) or to vest more fully in or assure to the Bank the security interest in any collateral securing this Note or to comply with applicable statute or law. This Note is delivered to the Bank at one of its offices and shall be governed by the laws of the State of California without giving effect to the conflicts of laws principles thereof. Any notices under or pursuant to this Note shall be deemed duly received and effective if delivered in hand to any officer of agent of the Borrower or Bank, or if mailed by registered or certified mail, return receipt requested, addressed to the Borrower or Bank at the address set forth in this Note or as any party may from time to time designate by written notice to the other party. No change in any provision of this Note may be made except by a writing signed by authorized signers of both parties to this Note, except that the Bank is authorized to fill in any blank spaces and to otherwise complete this Note and correct any patent errors herein. All of the Bank’s rights and remedies not only under the provisions of this Note but also under any other agreement or transaction shall be cumulative and not alternative or exclusive, and may be exercised by the Bank at such time or times and in such order of preference as the Bank in its sole discretion may determine. IN ANY ACTION, SUIT OR PROCEEDING IN RESPECT OF OR ARISING OUT OF THIS NOTE, BORROWER AND EACH INDORSER WAIVE (i) THE RIGHT TO INTERPOSE ANY SET-OFF OR COUNTERCLAIM OF ANY NATURE OR DESCRIPTION, (ii) ANY OBJECTION BASED ON FORUM NON CONVENIENS OR VENUE AND (iii) ANY CLAIM FOR CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES. The Borrower of this Note irrevocably submits to the nonexclusive jurisdiction of any Federal or state court sitting in California, over any suit, action or proceeding arising out of or relating to this Note. The Borrower irrevocably waives, to the fullest extent it may effectively do so under applicable law, any objection it may now or hereafter have to the laying of the venue of any such suit, action or proceeding brought in any such court and any claim that the same has been brought in an inconvenient forum. The Borrower hereby consents to any and all process which may be served in any such suit, action or proceeding, (i) by mailing a copy thereof by registered and certified mail, postage prepaid, return receipt requested, to the Borrower’s, address shown below or as notified to the Bank and (ii) by serving the same upon the Borrower(s), in any other manner otherwise permitted by law, and agrees that such service shall in every respect be deemed effective service upon the Borrower. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE BORROWER, AND THE BANK EACH HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY, AND AFTER AN OPPORTUNITY TO CONSULT WITH LEGAL COUNSEL, (A) WAIVES ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING IN CONNECTION WITH THIS NOTE, ANY OF THE OBLIGATIONS OF THE BORROWER TO THE BANK, AND ALL MATTERS CONTEMPLATED HEREBY AND DOCUMENTS EXECUTED IN CONNECTION HEREWITH AND (B) AGREES NOT TO SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CAN NOT BE, OR HAS NOT BEEN, WAIVED. THE BORROWER AND THE BANK EACH CERTIFIES THAT NEITHER THE BANK NOR ANY OF ITS REPRESENTATIVES, AGENTS OR COUNSEL HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE BANK WOULD NOT IN THE EVENT OF ANY SUCH PROCEEDING SEEK TO ENFORCE THIS WAIVER OF RIGHT TO TRIAL BY JURY. 4 Executed as of September 29, 2006. Borrower: Rackable Systems, Inc. By: /s/ Madhu Ranganathan Title: CFO 1933 Milmont Drive Milipitas, California 95035 5 INTEREST RATE ELECTION RIDER 1. INTEREST RATE(S); PAYMENTS AND PREPAYMENTS. 1.1 Interest Rates. So long as the Bank has not demanded payment of any amounts hereunder, and subject to the other terms of this Note, the outstanding principal balance shall bear interest at a rate per annum for the Interest Periods (as hereinafter defined) which the Borrower selects in accordance with this paragraph and the other provisions of this Note equal to: (a) a variable rate (the “Variable Rate”) equal to the Prime Rate (as hereinafter defined) (a “Variable Rate Advance”); or (b) One and Eighty-Five Hundredths Percent (1.85%) above the LIBOR Rate (as hereinafter defined) for Interest Periods of 30, 60, 90 or 180 days, but no such period should be beyond the Expiration Date (a “LIBOR Advance”). 1.2 Rate Selection. When the Borrower desires to select an interest rate, the Borrower shall give the Bank prior notice in a form satisfactory to the Bank specifying the effective date thereof (which shall be a Banking Day (as hereinafter defined)), the type of interest rate, the amount to which the interest rate shall apply and the duration of the first Interest Period therefor. Any such notice shall be irrevocable and shall be subject to other terms and conditions set forth in this Note. If the Bank does not receive timely notice of a requested LIBOR Advance, the Borrower shall be deemed to have selected a Variable Rate Advance. Each LIBOR Advance may only be requested in increments greater than One Million Dollars and Zero Cents ($1,000,000.00). If any interest rate is selected, the Bank shall record on the books and records of the Bank an appropriate notation evidencing such selection, each repayment on account of the principal thereof and the amount of interest paid, and the Borrower authorizes the Bank to maintain such records and make such notations and agrees that the amount shown on the books and records as outstanding from time to time shall constitute the amount owing to the Bank pursuant to this Note, absent manifest error. 1.3 Payment of Interest. Interest on all amounts outstanding (except for LIBOR Advances) shall be payable monthly in arrears on the 1st day of each month commencing the month following the date of this Note, and continuing thereafter on the same day of each succeeding month until the principal balance shall be paid in full. Interest on all LIBOR Advances shall be payable, in arrears, on the first Banking Day following the expiration of the applicable Interest Period or, at the Bank’s option, on the 1st day of each month commencing the month following the date of this Note and on the day LIBOR advances are paid in full and, in respect of any LIBOR Advance of more than 90 days’ duration, interest shall also be payable, in arrears, on each earlier Banking Day which is 90 days after the first day of the applicable Interest Period. 1.4 Interest Periods. Each Interest Period shall commence on the date selected and shall end on the date the Borrower shall elect, in each case as set forth in Paragraph 1.1 hereof; provided, however, that (a) any Interest Period that would otherwise end on a day which is not a Banking Day shall be extended to the next Banking Day and (b) any Interest Period that would otherwise extend beyond demand for payment of any amount shall end on the date of such demand. 1.5 Conversion of Outstanding Amounts. So long as the Bank has not demanded payment of any amounts hereunder, the Borrower may (a) on any Banking Day, convert any outstanding Variable Rate Advance to a LIBOR Advance in the same aggregate principal amount and (b) on the last Banking Day of the then current Interest Period applicable to a LIBOR Advance, convert such LIBOR Advance to a Variable Rate Advance. If the Borrower desires to convert an advance as set forth in the prior sentence, it shall give the Bank prior notice in a form satisfactory to the Bank, specifying the date of such conversion, the amount to be converted and if the conversion is from a Variable Rate Advance to a LIBOR Advance, the duration of the Interest Period therefor. 1.6 End of Interest Period. Subject to all of the terms and conditions applicable to a request that a new interest rate selected be a LIBOR Advance, the Borrower may elect to continue a LIBOR Advance as of the last day of the applicable Interest Period to a new LIBOR Advance. If the Borrower fails to notify the Bank of the Interest Period for a subsequent LIBOR Advance prior to the last day of the then current 6 Interest Period, then, at the Bank’s discretion, such outstanding LIBOR Advance shall become a Variable Rate Advance at the end of the current Interest Period for such outstanding LIBOR Advance and shall accrue interest in accordance with the provisions regarding Variable Rate Advances described herein. 1.7 Basis for Determining LIBOR Inadequate or Unfair. In the event that the Bank shall determine that by reason of circumstances affecting the interbank Eurodollar market, adequate and reasonable means do not exist for determining the LIBOR Rate, or Eurodollar deposits in the relevant amount and for the relevant maturity are not available to the Bank in the interbank Eurodollar market, with respect to a proposed LIBOR Advance or a proposed conversion of any Variable Rate Advance to a LIBOR Advance, the Bank shall give the Borrower prompt notice of such determination. If such notice is given, then: (a) any requested LIBOR Advance shall be made as a Variable Rate Advance, unless the Borrower gives the Bank one Banking Day’s prior written notice that its request for such borrowing is canceled; (b) any advance which was to have been converted to a LIBOR Advance shall be continued as a Variable Rate Advance; and (c) any outstanding LIBOR Advance shall be converted to a Variable Rate Advance on the last Banking Day of the then current Interest Period for such LIBOR Advance. Until such notice has been withdrawn, the Bank shall have no obligation to make LIBOR Advances or maintain outstanding LIBOR Advances and the Borrower shall not have the right to request LIBOR Advances or convert advances to LIBOR Advances. 1.8 Illegality of LIBOR Rate. Notwithstanding any other provision of this Note, if, after the date of this Note, any applicable law, treaty, regulation or directive, or any change therein or in the interpretation or application thereof, shall make it unlawful for the Bank to make or maintain any LIBOR Advance, the obligation of the Bank hereunder to make or maintain such LIBOR Advance shall forthwith be suspended for the duration of such illegality and the Borrower shall, if any such LIBOR Advance is outstanding, promptly upon request from the Bank, prepay such LIBOR Advance or convert such LIBOR Advance to another type of advance. If any such payment is made on a day that is not the last Banking Day of the then current Interest Period applicable to such advance, the Borrower shall pay the Bank, upon the Bank’s request, any amount required under Paragraph 1.10 of this Note. 1.9 Termination of Pricing Option. After the earlier of the Expiration Date or the Bank has demanded payment of any amounts hereunder, the Borrower’s right to select pricing options, if applicable, shall cease, and, if the Borrower would, but for the application of the preceding clause, have had the right to elect among interest rate options, notwithstanding anything to the contrary in this Note, interest shall accrue at a rate per annum equal to 3.0% plus the Variable Rate. 1.10 Optional Prepayment. (a) The Borrower has the right to pay before due the unpaid balance of any Variable Rate Advance or any part thereof without penalty or premium, but with accrued interest on the principal being prepaid to the date of such repayment. (b) At its option and upon prior written notice to the Bank, the Borrower may prepay any LIBOR Advance in whole or in part from time to time without premium or penalty but with accrued interest on the principal being prepaid to the date of such repayment; provided, however, that such LIBOR Advance may only be prepaid on the last Banking Day of the then current Interest Period applicable thereto. (c) In the event that any prepayment of a LIBOR Advance is required or permitted on a date other than the last Banking Day of the then current Interest Period applicable thereto, then so long as this Note has not become due and payable in accordance with its terms, the Borrower shall have the right to prepay such LIBOR Advance in whole (but not in part), provided that the Borrower shall pay to the Bank concurrently with such prepayment a Yield Maintenance Fee in an amount computed as follows: The current rate for United States Treasury securities (bills on a discounted basis shall be converted to a bond equivalent) with a maturity date closest to the maturity date of the term chosen pursuant to the Interest Period as to which the prepayment is made, shall be subtracted from the “cost of funds” component of the LIBOR 7 Advance in effect at the time of prepayment. If the result is zero or a negative number, there shall be no Yield Maintenance Fee payable. If the result is a positive number, then the resulting percentage shall be multiplied by the amount of the principal balance being prepaid. The resulting amount shall be divided by 360 and multiplied by the number of days remaining in the term chosen pursuant to the Interest Period as to which the prepayment is made. Said amount shall be reduced to present value calculated by using the number of days remaining in the designated term and using the above-referenced United States Treasury security rate and the number of days remaining in the designated term chosen pursuant to the Interest Period as to which the prepayment is made. The resulting amount shall be the Yield Maintenance Fee due to the Bank upon prepayment of the LIBOR Advance. If this Note shall become due and payable for any reason, then any Yield Maintenance Fee with respect to the Note shall become due and payable in the same manner as though the Borrower had exercised its right of prepayment. The Borrower recognizes that the Bank will incur substantial additional costs and expenses including loss of yield and anticipated profitability in the event of prepayment of all or part of this Note and that the Yield Maintenance Fee compensates the Bank for such costs and expenses. The Borrower acknowledges that the Yield Maintenance Fee is bargained-for consideration and not a penalty. (d) All prepayments of any LIBOR Advance shall be applied first to fees and expenses then due hereunder, then to interest on the unpaid principal balance accrued to the date of prepayment and last to the principal balance then due hereunder. 2. DEFINITIONS. 2.1 Definitions. The following definitions are applicable to this Interest Rate Election Rider: (a) “Banking Day” shall mean with respect to LIBOR Advances, a London Banking Day and with respect to all other advances, any day other than a day on which commercial banks in California are required or permitted by law to close. (b) “Interest Period” shall mean with respect to any LIBOR Advance, the 30, 60, 90 or 180 day period selected by the Borrower pursuant to Paragraph 1.1 and with respect to any other advance the period of duration, if any, selected by the Borrower pursuant to Paragraph 1.1 respecting such advance. (c) “LIBOR Advance” shall have the meaning set forth in Paragraph 1.1 above. (d) “LIBOR Rate” shall mean the rate of interest (rounded upwards if necessary to the next 100th of one percent) determined by the Bank to be the prevailing rate per annum at which deposits in United States dollars for an applicable period, determined by the Bank in its sole discretion, are offered to the Bank by first class banks in the London Interbank Market in which the Bank regularly participates at any such time, or, in the discretion of the Bank, the base, reference or other rate then designated by the Bank for general commercial loan reference purposes, it being understood that such rate is a reference rate, not necessarily the lowest, established from time to time, which serves as the basis upon which effective interest rates are calculated for loans making reference thereto. (e) “London Banking Day” shall mean with respect to LIBOR Advances, any day on which commercial banks are open for international business (including dealings in U.S. Dollar ($) deposits) in London, England and California. (f) “Prime Rate” shall mean the rate per annum from time to time established by the Bank as the Prime Rate and made available by the Bank at its main office or, in the discretion of the Bank, the base, reference or other rate then designated by the Bank for general commercial loan reference purposes, it being understood that such rate is a reference rate, not necessarily the 8 lowest, established from time to time, which serves as the basis upon which effective interest rates are calculated for loans making reference thereto. (g) “Variable Rate Advance” shall have the meaning set forth in Paragraph 1.1 above. 2.2 Other Terms. Terms set forth in this Note which are defined in the Note shall have the meanings set forth in the Note. 9
Exhibit 10-H DONALDSON COMPANY, INC. SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN (2008 Restatement) As Amended and Restated Effective January 1, 2008 SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN (2008 Restatement) TABLE OF CONTENTS Page SECTION 1. HISTORY AND PURPOSE 1 1.1. History 1.2. Purpose SECTION 2. DEFINITIONS 1 2.1. Account 2.2. Actuarial Equivalent 2.3. Affiliate 2.4. Basic Retirement Plan Benefits 2.5. Beneficiary 2.6. Board 2.7. Change of Control 2.8. Code 2.9. Committee 2.10. Company 2.11. Compensation 2.12. Deferral Credit 2.13. Deferred Compensation Plan 2.14. Disability, Disabled 2.15. Early Retirement Factor 2.16. Effective Date 2.17. Eligible Employee 2.18. ERISA 2.19. Final Average Compensation 2.20. Participant 2.21. Pension Plan 2.22. Pension Service 2.23. Plan 2.24. Plan Year 2.25. Termination of Employment 2.26. Vested SECTION 3. ELIGIBILITY AND PARTICIPATION 5 3.1. Eligibility 3.2. Commencement of Participation 3.3. Termination of Participation 3.4. Overriding Exclusion -i- SECTION 4. CREDITED AMOUNTS 6 4.1. Normal Retirement Benefit 4.2. Early Retirement Benefit 4.3. Disability or Death Benefit 4.4. Vesting SECTION 5. TIME AND MANNER OF PAYMENTS 7 5.1. Time of Payment 5.2. Manner of Payment 5.3. Changes in Time and Manner of Payment 5.4. Change of Control Distributions 5.5. Death Benefit 5.6. Beneficiary Designation SECTION 6. ACCOUNT 10 6.1. Participant Accounts 6.2. Investment of Accounts 6.3. Charges Against Accounts SECTION 7. FUNDING 10 7.1. Funding 7.2. Corporate Obligation SECTION 8. FORFEITURE OF BENEFITS 11 SECTION 9. ADMINISTRATION 11 9.1. Authority 9.2. Liability 9.3. Procedures 9.4. Claim for Benefits 9.5. Claims Procedure 9.5.1. Original Claim 9.5.2. Claims Review Procedure 9.5.3. General Rules 9.6. Legal Fees 9.7. Errors in Computations SECTION 10. MISCELLANEOUS 13 10.1. Not an Employment Contract 10.2. Nontransferability 10.3. Tax Withholding 10.4. Expenses 10.5. Governing Law 10.6. Amendment and Termination 10.7. Rules of Interpretation -ii- SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN (2008 Restatement) SECTION 1 HISTORY AND PURPOSE 1.1. History. Donaldson Company, Inc. sponsors an unfunded, nonqualified deferred compensation for a select group of highly compensated employees, known as the “DONALDSON COMPANY, INC. SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN”. The Plan, in its most current amended and restated form, is maintained under a document effective January 1, 2005 (the “Prior Plan Statement”). Effective as of January 1, 2008, Donaldson Company, Inc. hereby amends and restates the Plan in the manner hereinafter set forth to (i) freeze participation and (ii) adopt miscellaneous changes necessary in order to comply with final Treasury regulations issued under section 409A of the Code. 1.2. Purpose. The purpose of this Plan is to enable the Company to provide supplemental retirement benefits to a select group of management or highly compensated employees such that the sum of the supplemental benefits, certain other retirement benefits provided by Company, and benefits provided by prior employers, will not be less than a predetermined portion of the employee’s final average compensation. SECTION 2 DEFINITIONS The following words and phrases shall have the following meanings, unless a different meaning is plainly required by the context. Any masculine terminology used in the Plan shall also include the feminine gender and the definition of any terms in the singular shall also include the plural. 2.1. Account — the compensation account established under this Plan for a Participant pursuant to Section 6.1. 2.2. Actuarial Equivalent — a benefit of equivalent value computed on the basis of actuarial tables, factors and assumptions set forth in Appendix C to the Donaldson Company, Inc. Salaried Employees’ Pension Plan. 2.3. Affiliate — a business entity which is under “common control” with the Company or which is a member of an “affiliated service group” that includes the Company, as those terms are defined in section 414(b), (c) and (m) of the Code. A business entity shall also be treated as an Affiliate if, and to the extent that, such treatment is required by regulations under section 414(o) of the Code. In addition to said required treatment, the Committee may, in its discretion, designate as an Affiliate any business entity which is not such a “common control” or “affiliated service group” business entity but which is otherwise affiliated with the Company, subject to such limitations as the Committee may impose. 2.4. Basic Retirement Plan Benefits — the single lump-sum value of the benefits payable under all of the following plans, determined as of the date of the Eligible Employee’s Termination of Employment, death or Disability, whichever happens first (or if the value of a plan cannot be determined as of that date, as of the valuation date for such plan that immediately precedes or follows such Termination of Employment, death or Disability, whichever happens first, as determined by the Committee), and subject to the limitations, if any, set forth below: (a) Donaldson Company, Inc. Retirement Savings and Employee Stock Ownership Plan (including profit sharing and PAYSOP), taking into account only vested benefits attributable employer contributions; (b) Donaldson Company, Inc. Salaried Employees’ Pension Plan; (c) Donaldson Company, Inc. Excess Pension Plan; (d) Donaldson Company, Inc. Deferred Compensation and 401(k) Excess Plan, taking into account only benefits attributable to Company Credits; (e) Donaldson Company, Inc. ESOP Restoration Plan; (f) Any qualified or non-qualified retirement plan, program or arrangement provided by the Company or an Affiliate and not listed above, taking into account only vested benefits attributable to employer contributions; and (g) by a prior employer, taking into account only vested benefits attributable to employer contributions. For purposes of paragraphs (a), (f) and (g) above, “employer contributions” does not include pre-tax contributions to a tax-qualified retirement plan elected by an Eligible Employee in lieu of current compensation under a 401(k) arrangement, or any other amount contributed due to an Eligible Employee’s election to defer compensation. If prior to the earliest of the Eligible Employee’s Termination of Employment, death or Disability the Eligible Employee received a distribution of any benefits that, but for the distribution, would have been included in the Eligible Employee’s Basic Retirement Plan Benefits, such Basic Retirement Plan Benefits shall be increased by the amount of such distribution, plus interest thereon at a rate to be determined by the Committee. In the event any of the foregoing plans do not provide for payment in a single lump-sum, the benefit taken into account for purposes of this Section 2.4 shall be the single lump-sum Actuarial Equivalent of the benefit payable under such plan. 2.5. Beneficiary — any person or entity validly designated by the Participant in accordance with Section 5 to receive the benefits, if any, payable under the Plan with respect to the Participant after the Participant’s death. Designated persons or entities shall not be considered Beneficiaries until the death of the Participant. -2- 2.6. Board — the Board of Directors of the Company. 2.7. Change of Control — the occurrence of a “change in the ownership,” “change in effective control,” and/or a “change in the ownership of a substantial portion of the assets,” as defined under Treasury Regulation § 1.409A 3(i)(5), of the Affected Corporation. For this purpose, the “Affected Corporation” is the Participant’s employer, or any corporation (including the Company) in a chain of corporations in which each corporation is a majority shareholder of another corporation in the chain, ending with the Participant’s employer. A “majority shareholder” is a shareholder owning more than 50 percent of the total fair market value and total voting power of such corporation. 2.8. Code — the Internal Revenue Code of 1986, including applicable regulations for the specified section of the Code. Any reference in this Plan Statement to a section of the Code, including the applicable regulation, shall be considered also to mean and refer to any subsequent amendment or replacement of that section or regulation. 2.9. Committee — the Human Resources Committee of the Board of Directors of the Company. 2.10. Company — Donaldson Company, Inc. and, except in determining under Section 2.7 hereof whether or not any Change of Control has occurred, shall include any successor by merger, purchase or otherwise. 2.11. Compensation — the amount of remuneration paid to an Eligible Employee that was treated as “Compensation” within the meaning of the Donaldson Company, Inc. Excess Pension Plan (modified as described in subsections (a) and (b) of Section 4.2 of such plan), subject, however to the following: (a) annual bonuses shall be included in the year they are earned, not the year they are paid; (b) amounts paid under a non-qualified plan of deferred compensation shall not be included (e.g., payments of deferred salary or bonus). 2.12. Deferral Credit — any amount credited to an Eligible Employee under Section 4.1, 4.2 or 4.3 of the Deferred Compensation Plan. 2.13. Deferred Compensation Plan — the nonqualified deferred compensation plan known as the “Donaldson Company, Inc. Deferred Compensation and 401(k) Excess Plan,” as amended from time to time. 2.14. Disability, Disabled — a physical or mental impairment which constitutes total and permanent disability and during which the Eligible Employee is not receiving any payments of an Early Retirement Pension or a Vested Benefit under the Pension Plan, and the Eligible Employee either: (a) is, by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a -3- continuous period of not less than twelve (12) months, receiving income replacement benefits for a period of not less than three (3) months under an accident and health plan covering employees of the Company; or (b) is eligible to receive and is actually receiving (after the applicable waiting period) benefits under the federal Social Security Act as in effect at the time of the Disability. Notwithstanding the foregoing, the terms Disability and Disabled shall at all times be interpreted in a manner so as not to violate section 409A of the Internal Revenue Code. 2.15. Early Retirement Factor — a one-sixth of one percent reduction for each month, or portion thereof, that the Participant’s Termination of Employment precedes the Participant’s attainment of age 62. 2.16. Effective Date — the amended and restated Plan document as set forth herein is effective as of January 1, 2008. 2.17. Eligible Employee — any senior officer of the Company who meets all of the requirements of Section 3.1. 2.18. ERISA — the Employee Retirement Income Security Act of 1974, including applicable regulations for the specified section of ERISA. Any reference in this Plan to a section of ERISA, including the applicable regulation, shall be considered also to mean and refer to any subsequent amendment or replacement of that section or regulation. 2.19. Final Average Compensation — the Participant’s average annual Compensation for the highest three consecutive Plan Years out of the most recent ten Plan Years, ending with the Plan Year in which the earliest of the Participant’s Termination of Employment, death or Disability, occurs. 2.20. Participant — an Eligible Employee or a former Eligible Employee who has not received all of the benefits to which he or she is entitled under this Plan. 2.21. Pension Plan — the tax-qualified pension plan known as the “Donaldson Company, Inc. Salaried Employees’ Pension Plan (1997 Restatement),” as amended from time to time. 2.22. Pension Service — the Participant’s “Benefit Service” as defined in the Pension Plan. 2.23. Plan — the Donaldson Company, Inc. Supplemental Executive Retirement Plan as set forth herein, and as the same may be amended from time to time. 2.24. Plan Year — the twelve (12) consecutive month period ending on any July 31. 2.25. Termination of Employment — the separation from service (within the meaning of Treas. Regs. § 1.409A-1(h)) with the Company Controlled Group, voluntarily or involuntarily, for any reason other than Disability or death. Whether a separation from service has occurred is determined under section 409A of the Code and Treasury Regulation 1.409A-1(h) (i.e., whether the -4- facts and circumstances indicate that the employer and the employee reasonably anticipated that no further services would be performed after a certain date or that the level of bona fide services the employee would perform after such date (whether as an employee or independent contractor) would permanently decrease to no more than twenty percent (20%) of the average level of bona fide services performed (whether as an employee or an independent contractor) over the immediately preceding thirty-six (36) month period (or the full period of services to the employer if the employee has been providing services to the employer less than thirty-six (36) months)). Separation from service shall not be deemed to occur while the employee is on military leave, sick leave or other bona fide leave of absence if the period does not exceed six (6) months or, if longer, so long as the employee retains a right to reemployment with any member of the Company Controlled Group under an applicable statute or by contract. For this purpose, a leave is bona fide only if, and so long as, there is a reasonable expectation that the employee will return to perform services for any member of the Company Controlled Group. Notwithstanding the foregoing, a twenty-nine (29) month period of absence will be substituted for such six (6) month period if the leave is due to any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of no less than six (6) months and that causes the employee to be unable to perform the duties of his or her position of employment. For this purpose, the “Company Controlled Group” is the Participant’s employer and all persons with whom the employer would be considered a single employer under Code sections 414(b) and 414(c); provided that, in applying Code sections 1563(a)(1), (2) and (3) for purposes of determining a controlled group of corporations under Code section 414(b), the language “at least 50 percent” shall be used instead of “at least 80 percent” each place it appears therein, and in applying Treas. Regs. § 1.414(c)-2 for purposes of determining trades or businesses that are under common control for purposes of Code section 414(c), “at least 50 percent” shall be used instead of “at least 80 percent” each place it appears therein. 2.26. Vested — nonforfeitable. SECTION 3 ELIGIBILITY AND PARTICIPATION 3.1. Eligibility. Effective January 1, 2008, no new Participants shall be permitted to participate in the Plan. Any senior officer of the Company who was affirmatively selected as an Eligible Employee by the Committee prior to January 1, 2008 may continue to participate in the Plan. Committee selections shall continue in effect until rescinded by the Committee. The Committee may rescind its selection and thereby discontinue a senior officer’s active participation in the Plan at any time. If any amendment or restatement of the Plan increases the cost of the benefits payable to a senior officer, the senior officer’s selection will be deemed rescinded immediately prior to the effective date of the amendment or restatement, unless reauthorized by the Committee or its delegate. If a senior officer’s selection is rescinded (or deemed rescinded), the benefit, if any, provided by this Plan shall be calculated pursuant to the terms of the Plan in effect when the rescission (or deemed rescission) took effect, using only the Participant’s compensation through that time, but calculating any offset for other benefits using the amount of such other benefits at the time of the person’s actual Termination of Employment. In connection with an Eligible Employee’s commencement of participation in the Plan, the Eligible -5- Employee shall have elected the time and form of payment of such Participant’s Account as permitted under Section 5, along with such other elections as the Committee deems necessary or desirable under the Plan. For these elections to be valid, the election form must have been completed and timely delivered to the Committee and accepted by the Committee within thirty (30) days after the Participant first became eligible to participate in the Plan. 3.2. Commencement of Participation. Effective January 1, 2008, no new Participants shall be permitted to participate in the Plan. An Eligible Employees who became a Participant in the Plan prior to January 1, 2008 commenced participation when the Eligible Employee was first affirmatively selected as required by Section 3.1. 3.3. Termination of Participation. A person shall cease to be a Participant as soon as all amounts payable to the Participant have been paid in full. 3.4. Overriding Exclusion. Notwithstanding anything apparently to the contrary in this Plan or in any written communication, summary, resolution or document or oral communication, no individual shall be a Participant in this Plan, develop benefits under this Plan or be entitled to receive benefits under this Plan (either for the employee or his or her survivors) unless such individual is a member of a select group of management or highly compensated employees (as that expression is used in ERISA). If a court of competent jurisdiction, any representative of the U.S. Department of Labor or any other governmental, regulatory or similar body makes any direct or indirect, formal or informal, determination that an individual is not a member of a select group of management or highly compensated employees (as that expression is used in ERISA), such individual shall not be (and shall not have ever been) a Participant in this Plan at any time. If any person not so defined has been erroneously treated as a Participant in this Plan, upon discovery of such error such person’s erroneous participation shall immediately terminate ab initio and upon demand such person shall be obligated to reimburse the Company for all amounts erroneously paid to him or her. SECTION 4 CREDITED AMOUNTS 4.1. Normal Retirement Benefit. A Participant whose Termination of Employment occurs on or after the date the Participant attains age 62 and completes at least ten (10) years of Pension Service shall be credited with a Normal Retirement Benefit equal to (a) minus (b): (a) the product of (i), (ii) and (iii): (i) 30%; (ii) Years of Pension Service, limited to twenty (20); and (iii) Final Average Compensation (b) the lump-sum value of the Participant’s Basic Retirement Plan Benefits. -6- 4.2. Early Retirement Benefit. A Participant whose Termination of Employment occurs after the Participant has completed at least fifteen (15) years of Pension Service and attained age 55, but before the date the Participant attains age 62 shall, in lieu of any other benefit under this Plan, be credited with an Early Retirement Benefit equal to the amount determined in the same manner as provided in Section 4.1 above, except that the product in Section 4.1(a) will include a fourth factor: (iv) Early Retirement Factor (Example: If a Participant retires early at age 60, the product in Section 4.1(a) would be further multiplied by .96.) 4.3. Disability or Death Benefit. A Participant who becomes Disabled prior to his or her Termination of Employment and after completing at least fifteen (15) years of Pension Service and before the date he or she attains age 62, or who dies prior to both the Participant’s Termination of Employment and Disability, shall, in lieu of any other benefit under this Plan, be credited with a Disability or Death Benefit equal to the amount determined in the same manner as provided in Section 4.2, taking into account only Pension Service through the date of Disability or death, and determining the Early Retirement Factor based on the amount, if any, by which the Participant’s Disability or death precedes the Participant’s attainment of age 62. 4.4. Vesting. The applicable amount determined in accordance with this Section 4 shall be credited to the Participant’s Account at the time of the Participant’s Termination of Employment, death or Disability, as applicable. Subject to the forfeiture provisions of Section 8, any Account established for a Participant under this Plan shall be 100% Vested at all times. SECTION 5 5.1. Time of Payment. Payment of a Participant’s Account under the Plan will commence as soon as administratively feasible after (but not later than December 31 of the Plan Year in which occurs, or if later, sixty (60) days following) the earliest of the following events: (a) the Participant’s death; (b) the Participant’s Disability; (c) the date that is twenty four (24) months following the Participant’s Termination of Employment; or (d) a date of distribution selected by the Participant (at the time the Participant first becomes eligible to participate, on a form prescribed by the Committee), which may be a date that is a specified number of months after the Participant’s Termination of Employment (not to exceed twenty four (24) months); provided, however, that where payment under this paragraph (d)(ii) is made to any “specified employee” (as defined under section 409A of the -7- Code) on account of Termination of Employment, such payment shall commence no earlier than six (6) months following a Termination of Employment (or upon the death of the employee, if earlier) if required to comply with section 409A of the Code. 5.2. Manner of Payment. A Participant’s Account shall be paid in cash to the Participant in either a single lump-sum payment or in annual installments over a period of not more than twenty (20) years. The Participant must elect a manner of payment at the time the Participant elects his or her date of distribution pursuant to Section 5.1(d). Notwithstanding the foregoing, the following special rules shall apply: (a) in the case of the Participant’s death or Disability, payment shall be in a single lump sum; (b) if the Participant’s Account upon commencement of distribution under Section 5.1 is less then Ten Thousand Dollars ($10,000), payment shall be in a single lump sum; and (c) in the event no election was made by the Participant, payment shall be in a single lump sum. 5.3. Changes in Time and Manner of Payment. Notwithstanding the foregoing, a Participant who is actively employed by the Company may make a new election concerning selection of the time and form of payment authorized pursuant to this Section 5.3, subject to the following limitations: (a) Such election must be submitted to and accepted by the Committee at least twelve (12) months prior to the date a distribution to the Participant would otherwise have been made or commenced; (b) The election shall have no effect until at least twelve (12) months after the date on which the election is made; (c) The election may change the time when payment shall commence but only if the new date selected by the Participant for commencement shall be a date that is at least five (5) years from the prior date of distribution selected by the Participant; (d) The election may reduce or extend the number of installment payments (subject to the limitations in Section 5.2) so long as the initial installment is delayed at least five (5) years from the date distribution would have otherwise commenced; and (e) If the participant changes the time and/or form of payment under this Section 5.3, payment shall commence as soon as administratively feasible after (but not later than December 31 of the Plan Year in which occurs, or if later, sixty (60) days following) the earliest of the following events: -8- (i) the Participant’s death; (ii) the Participant’s Disability; or (iii) the new date selected by the Participant for commencement. 5.4. Change of Control Distributions. Notwithstanding any other provision of this Plan, in the event of a Change of Control, each Participant who incurs a Termination of Employment with the Company for any reason during the two (2) year period following such Change of Control shall receive within ten (10) business days after the date of termination a lump sum payment of the entire balance contained in the Participant’s Account; provided, however, that with respect to any Participant who separated from service before the date of a Change of Control, the balance of the Participant’s Account shall be paid at the time and in the manner as elected by the Participant under this Section 5 hereof (and shall not be commuted to a lump sum or otherwise accelerated by the Change of Control). Where payment under this Section 5.4 is made to any “specified employee” (as defined under section 409A of the Code) on account of Termination of Employment, such payment shall commence no earlier than six (6) months following a Termination of Employment (or upon the death of the employee, if earlier) if required to comply with section 409A of the Code. 5.5. Death Benefit. In the event of a Participant’s death, the Company shall pay the amount of the Participant’s Account as of the date of death (as adjusted from time to time pursuant to Section 6.2) in a lump-sum to the Participant’s designated Beneficiary as soon as administratively feasible after the Participant’s death (but not later than December 31 of the Plan Year in which the Participant’s death occurs, or if later, sixty (60) days following such death). Payment to a Participant’s designated Beneficiary shall be in cash. 5.6. Beneficiary Designation. A Participant shall submit to the Company upon initial designation as an Eligible Employee in the Plan, and at such other times as the Participant desires, on a form provided by the Committee, a written designation of the beneficiary or beneficiaries to whom payment of the Participant’s Account under the Plan shall be made in the event of the Participant’s death. Beneficiary designations shall become effective only when received by the Company. Beneficiary designations first received by the Company after the Participant’s death, and any designations in effect at the time a valid subsequent designation is received by the Company, shall be invalid and have no effect. If a Participant has not designated a Beneficiary, or if no designated Beneficiary is living on the date of distribution, the Participant’s Account shall be distributed to those persons entitled to receive distribution of the Participant’s benefit under the Donaldson Company, Inc. Salaried Employees’ Pension Plan (1997 Restatement), as amended from time to time. -9- SECTION 6 ACCOUNT 6.1. Participant Accounts. The Committee shall cause a bookkeeping account to be kept in the name of each Participant which shall reflect the value of the Normal Retirement Benefit, Early Retirement Benefit, Disability or death benefit credited to the Participant at the time of the Participant’s Termination of Employment, death or Disability, whichever applies. 6.2. Investment of Accounts. When the manner of payment is annual installments, the Participant’s Account will be adjusted as of the last day of each Plan Year to the same extent that an equal amount would be adjusted if it had been credited to the subfund under the Deferred Compensation Plan that provides a fixed rate of return. 6.3. Charges Against Accounts. There shall be charged against each Participant’s bookkeeping account any payments made to the Participant or the Participant’s Beneficiary in accordance with Section 5. SECTION 7 FUNDING 7.1. Funding. The Company and its Affiliates shall be responsible for paying all benefits due hereunder. For the purpose of facilitating the payment of benefits due hereunder, the Company may (but shall not be required to) establish and maintain a grantor trust pursuant to an Agreement between the Company and a trustee selected by the Company; provided, however, that any such grantor trust must be structured so that it does not result in any federal income tax consequences to any Participant until distributions under Section 5 are actually received. The Company may contribute to a grantor trust thereby created such amounts as it may from time to time determine. 7.2. Corporate Obligation. Neither the officers nor any member of the Board of Directors of the Company or any of its Affiliates in any way secures or guarantees the payment of any benefit or amount which may become due and payable hereunder to or with respect to any Participant. Each Participant and other person entitled at anytime to payments hereunder shall look solely to the assets of the Company and its Affiliates for such payments as an unsecured, general creditor. Nothing herein shall be construed to give a Participant, Beneficiary or any other person or persons any right, title, interest or claim in or to any specific asset, fund, reserve, account or property of any kind whatsoever owned by the Company or in which it may have any right, title or interest now or in the future. After benefits shall have been paid to or with respect to a Participant and such payment purports to cover in full the benefit hereunder, such former Participant or other person or persons, as the case may be, shall have no further right or interest in the other assets of the Company and its Affiliates in connection with this Plan. -10- SECTION 8 FORFEITURE OF BENEFITS All unpaid benefits under this Plan shall be permanently forfeited if the Committee determines that the Participant, either before or after the Participant’s Termination of Employment or Disability, or before the Participant’s death: (a) engaged in criminal or fraudulent conduct resulting in a hardship to the Company or an Affiliate; or (b) breached the Participant’s written employment agreement with the Company or an Affiliate. SECTION 9 ADMINISTRATION 9.1. Authority. The Plan shall be administered by the Committee, which shall have full discretionary power and authority to administer and interpret the Plan and to determine all factual and legal questions under the Plan, including but not limited to the entitlement of Participants and Beneficiaries, and the amount of their respective interests. Except where necessary to comply with applicable corporate or securities law, or applicable rules of the New York Stock Exchange (e.g., with respect to executive officers), the Committee may delegate or redelegate to one or more persons, jointly or severally, and whether or not such persons are members of the committee or employees of the Company, such functions assigned to the Committee hereunder as it may from time to time deem advisable. Until withdrawn or redelegated by the Committee, all of the Committee’s delegable power and authority under this Section 9.1 shall be deemed delegated to the Company’s Vice President in charge of executive compensation, excluding only the power and authority to act in such a way as would materially increase the cost of the Plan. 9.2. Liability. No member of the Committee and no director or member of the management of the Company or its Affiliates shall be liable to any persons for any actions taken under the Plan, or for any failure to effect any of the objective or purposes of the Plan, by reason of insolvency or otherwise. 9.3. Procedures. The Committee may from time to time adopt such rules and procedures as it deems appropriate to assist in the administration of the Plan. 9.4. Claim for Benefits. No employee or other person shall have any claim or right to payment of any amount hereunder until payment has been authorized and directed by the Committee. 9.5. Claims Procedure. Until modified by the Committee, the claims procedure set forth in this Section 9.5 shall be the claims procedure for the resolution of disputes and disposition of claims arising under the Plan. -11- 9.5.1. Original Claim. Any employee, former employee, or Beneficiary of such employee or former employee may, if the employee, former employee or Beneficiary so desires, file with the Committee a written claim for benefits under the Plan. Within ninety (90) days after the filing of such a claim, the Committee shall notify the claimant in writing whether the claim is upheld or denied in whole or in part or shall furnish the claimant a written notice describing specific special circumstances requiring a specified amount of additional time (but not more than one hundred eighty (180) days from the date the claim was filed) to reach a decision on the claim. If the claim is denied in whole or in part, the Committee shall state in writing: (a) the specific reasons for the denial; (b) the specific references to the pertinent provisions of this Plan on which the denial is based; (c) a description of any additional material or information necessary for the information is necessary; and (d) an explanation of the claims review procedure set forth in this Section. 9.5.2. Claims Review Procedure. Within sixty (60) days after receipt of notice that the claim has been denied in whole or in part, the claimant may file with the Committee a written request for a review and may, in conjunction therewith, submit written issues and comments. Within sixty (60) days after the filing of such a request for review, the Committee shall notify the claimant in writing whether, upon review, the claim was upheld or denied in whole or in part or shall furnish the claimant a written notice describing specific special circumstances requiring a specified amount of additional time (but not more than one hundred twenty days (120) from the date the request for review was filed) to reach a decision on the request for review. 9.5.3. General Rules. (a) No inquiry or question shall be deemed to be a claim or a request for a review of a denied claim unless made in accordance with the claims procedure. The Committee may require that any claim for benefits and any request for a review of a denied claim be filed on forms to be furnished by the Committee upon request. (b) All decisions on original claims shall be made by the Committee and requests for a review of denied claims shall be made by the Committee. (c) The Committee may, in its discretion, hold one or more hearings on a claim or a request for a review of a denied claim. (d) Claimants may be represented by a lawyer or other representative at their own expense, but the Committee reserves the right to require the claimant to furnish written authorization. A claimant’s representative shall be entitled to copies of all notices given to the claimant. -12- (e) The decision of the Committee on an original claim or on a request for a review of a denied claim shall be served on the claimant in writing. If a decision or notice is not received by a claimant within the time specified, the claim or request for a review of a denied claim shall be deemed to have been denied. (f) Prior to filing a claim or a request for a review of a denied claim, the claimant or the claimant’s representative shall have a reasonable opportunity to review a copy of this Plan Statement and all other pertinent documents in the possession of the Company and its Affiliates. 9.6. Legal Fees. If the Company does not pay the benefits required under the terms of the Plan for reasons other than the insolvency of the Company, the Company agrees to reimburse any Participant for all legal fees incurred in enforcing his or her claim to benefits under the Plan. Notwithstanding the foregoing, to the extent required to comply with the provisions of section 409A of the Code, no reimbursement of expenses incurred by the Participant during any taxable year shall be made after the last day of the following taxable year. 9.7. Errors in Computations. The Committee shall not be liable or responsible for any error in the computation of any benefit payable to or with respect to any Participant resulting from any misstatement of fact made by the Participant or by or on behalf of any Beneficiary to whom such benefit shall be payable, directly or indirectly, to the Committee, and used by the Committee in determining the benefit. The Committee shall not be obligated or required to increase the benefit payable to or with respect to such Participant which, on discovery of the misstatement, is found to be understated as a result of such misstatement of the Participant. However, the benefit of any Participant which is overstated by reason of any such misstatement or any other reason shall be reduced to the amount appropriate in view of the truth (and to recover any prior overpayment). SECTION 10 MISCELLANEOUS 10.1. Not an Employment Contract. This Plan is not and shall not be deemed to constitute a contract of employment between the Company and any employee or other person, nor shall anything herein contained be deemed to give any employee or other person any right to be retained in the Company’s employ or in any way limit or restrict the Company’s right or power to discharge any employee or other person at any time and to treat him without regard to the effect which such treatment might have upon the employee as a Participant in the Plan. 10.2. Nontransferability. A Participant’s rights and interest under the Plan, including amounts payable, may not be assigned, alienated, pledged or transferred except, in the event of a Participant’s death to his Beneficiary. No benefit payable under this Plan shall be subject to attachment, garnishment, execution following judgment or other legal process before actual payment to the Participant or Beneficiary. -13- 10.3. Tax Withholding. The Company shall withhold the amount of any federal, state or local income tax or other tax required to be withheld by the Company under applicable law with respect to any amount payable under the Plan. The Participant shall not be liable for any tax withholding. 10.4. Expenses. All expenses of administering the Plan shall be borne by the Company. 10.5. Governing Law. Except to the extent that federal law is controlling, the Plan shall be construed and enforced in accordance with and governed by the laws of the State of Minnesota. 10.6. Amendment and Termination. The Company reserves the power to unilaterally amend this Plan at any time, either prospectively or retroactively or both by action of the Committee. The Committee may likewise terminate or curtail the benefits of this Plan both with regard to persons expecting to receive benefits in the future and persons already receiving benefits at the time of such action; provided, however, that the Committee may not amend or terminate the Plan with respect to benefits that have accrued and are vested pursuant to Section 4 in any manner that reduces the amount of such benefits or alters the effect of any Participant election previously filed with the Company. No modification of the terms of this Plan shall be effective unless it is in writing and signed on behalf of the Company by a person authorized to execute such writing. No oral representation concerning the interpretation or effect of this Plan shall be effective to amend the Plan. To the extent permissible under section 409A of the Code and related Treasury regulations and guidance, including but not limited to such guidance and regulations as may be issued after the effective date of this Plan, if there is a termination of the Plan, the Company shall have the right, in its sole discretion, and notwithstanding any elections made by the Participant, to pay all benefits in a lump sum following such termination as soon as practicable subject to the limitations prescribed under section 409A of the Code and the regulations thereunder. 10.7. Rules of Interpretation. The titles given to the various sections of this Plan are inserted for convenience of reference only and are not part of this Plan, and they shall not be considered in determining the purpose, meaning or intent of any provision hereof. This Plan shall be construed and this Plan shall be administered to create an unfunded plan providing deferred compensation to a select group of management or highly compensated employees so that it is exempt from the requirements of Parts 2, 3 and 4 of Title I of ERISA and qualifies for a form of simplified, alternative compliance with the reporting and disclosure requirements of Part 1 of Title I of ERISA. -14-
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):September 18, 2014 PROFIRE ENERGY, INC. (Exact name of registrant as specified in its charter) Nevada 001-36378 20-0019425 (State or other jurisdiction of incorporation) (Commission File Number) (IRS Employer Identification No.) 321 South 1250 West, Suite 1, Lindon, Utah (Address of principal executive offices) (Zip code) (801) 796-5127 (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 filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2 below): [] 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 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. On September 18, 2014, at the annual general meeting of shareholders of Profire Energy, Inc. (the “Company”), shareholders approved the adoption of the Company’s 2014 Equity Incentive Plan, which had previously been approved by the Company’s Board of Directors, subject to stockholder approval. A description of the Company’s 2014 Equity Incentive Plan is set forth in the Company’s 2014 Proxy Statement filed with the Securities and Exchange Commission on August 21, 2014 under the caption “Proposal Two – Approval and Ratification of The 2014 Equity Incentive Plan”, and is incorporated herein by reference. The description of the Company’s 2014 Equity Incentive Plan is qualified in its entirety by reference to the full text of such plan, which was attached to the Company’s 2014 Proxy Statement as Appendix B and is incorporated herein by reference. Item 5.07 Submission of Matters to Vote of Security Holders The Company held its annual Shareholder Meeting (the “Meeting”) on September 18, 2014 in Lindon, Utah.Of the 52,596,063 total shares of common stock of the Company that were issued and outstanding on August 15, 2014, the record date for the Meeting, 43,903,942 shares, constituting 83.5% of the total outstanding shares, were represented in person or by proxy at the Meeting. The matters voted on and the results of the votes were as follows: 1. The shareholders elected seven directors to the Company’s board of directors for the ensuing year and until their successors are elected and qualified.The votes regarding this proposal were as follows: Nominee FOR WITHHOLD Brenton W. Hatch Harold Albert Andrew W. Limpert Arlen B. Crouch Stephen E. Pirnat Daren J. Shaw Ronald R. Spoehel 2.The shareholders approved and ratified the 2014 Equity Incentive Plan.The votes regarding this proposal were as follows: 2014 Equity Incentive Plan FOR AGAINST ABSTAIN 3. The shareholders voted to approve executive compensation on an advisory (non-binding) basis. Approve Executive Compensation FOR AGAINST ABSTAIN 4.The shareholders ratified the selection of Sadler, Gibb & Associates, LLC as the Company’s independent registered public accounting firm for the 2014 fiscal year.The votes regarding this proposal were as followed: Auditor FOR AGAINST ABSTAIN Sadler, Gibb & Associates SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. PROFIRE ENERGY, INC. Date: September 24, 2014 By: /s/ Brenton W. Hatch Brenton W. Hatch Chief Executive Officer
Commission File No. 000-31639 SCHEDULE 14C (Rule 14c-101) INFORMATION REQUIRED IN INFORMATION STATEMENT SCHEDULE 14C INFORMATION Information Statement Pursuant to Section 14(c) of the Securities Exchange Act of 1934 Check the appropriate box: [X] Preliminary Information Statement [_] Confidential, for Use of the Commission Only (as permitted by Rule14c-5(d)(2)) [_] Definitive Information Statement Racino Royale, Inc. (Name of Registrant as Specified in its Charter) Payment of Filing Fee (check the appropriate box): No fee required. [X] [_] Fee computed on table below per Exchange Act Rules14c-5(g) and 0-11. 1) Title of each class of securities to which transaction applies: 2) Aggregate number of securities to which transaction applies: 3) Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule0-11 (Set forth amount on which filing fee is calculated and state how it was determined): 4) Proposed maximum aggregate value of transaction: 5) Total fee paid: [_] Fee paid previously with preliminary materials. [_] Check box if any part of the fee is offset as provided by Exchange Act Rule0-11(a)(2) and identify the filing for which the offering fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of the filing. 1) Amount previously paid: 2) Form, Schedule or Registration Statement No.: 3) Filing Party: 4) Date Filed: RACINO

EXHIBIT 10.2 GUARANTEE AND COLLATERAL AGREEMENT dated and effective as of April 2, 2007 among CELANESE HOLDINGS LLC, CELANESE US HOLDINGS LLC, CELANESE AMERICAS CORPORATION, THE OTHER GUARANTOR SUBSIDIARIES and DEUTSCHE BANK AG, NEW YORK BRANCH, as Collateral Agent TABLE OF CONTENTS Page ARTICLE I. Definitions SECTION 1.01. Credit Agreement 1 SECTION 1.02. Other Defined Terms 1 ARTICLE II. Guarantee SECTION 2.01. Guarantee 5 SECTION 2.02. Guarantee of Payment 5 SECTION 2.03. No Limitations, etc. 6 SECTION 2.04. Reinstatement 8 SECTION 2.05. Agreement to Pay; Subrogation 8 SECTION 2.06. Information 8 SECTION 2.07. Maximum Liability 8 ARTICLE III. Pledge of Securities SECTION 3.01. Pledge 9 SECTION 3.02. Delivery of the Pledged Collateral 10 SECTION 3.03. Representations, Warranties and Covenants 10 SECTION 3.04. [Reserved] 12 SECTION 3.05. Registration in Nominee Name; Denominations 12 SECTION 3.06. Voting Rights; Dividends and Interest, etc. 12 ARTICLE IV. Security Interests in Personal Property SECTION 4.01. Security Interest 14 SECTION 4.02. Representations and Warranties 16 SECTION 4.03. Covenants 17 SECTION 4.04. Other Actions 20 SECTION 4.05. Covenants Regarding Patent, Trademark and Copyright Collateral 21 -i- ARTICLE V. Remedies SECTION 5.01. Remedies Upon Default 22 SECTION 5.02. Application of Proceeds 24 SECTION 5.03. Grant of License to Use Intellectual Property 24 SECTION 5.04. Securities Act, etc. 25 SECTION 5.05. Registration, etc. 25 ARTICLE VI. Indemnity, Subrogation and Subordination SECTION 6.01. Indemnity and Subrogation 26 SECTION 6.02. Contribution and Subrogation 26 SECTION 6.03. Subordination 27 ARTICLE VII. Miscellaneous SECTION 7.01. Notices 27 SECTION 7.02. Security Interest Absolute 27 SECTION 7.03. [Reserved] 27 SECTION 7.04. Binding Effect; Several Agreement 27 SECTION 7.05. Successors and Assigns 28 SECTION 7.06. Collateral Agent’s Fees and Expenses; Indemnification 28 SECTION 7.07. Collateral Agent Appointed Attorney-in-Fact 29 SECTION 7.08. GOVERNING LAW 29 SECTION 7.09. Waivers; Amendment 29 SECTION 7.10. WAIVER OF JURY TRIAL 30 SECTION 7.11. Severability 30 SECTION 7.12. Counterparts 30 SECTION 7.13. Headings 31 SECTION 7.14. Jurisdiction; Consent to Service of Process 31 SECTION 7.15. Termination or Release 31 SECTION 7.16. Additional Parties 32 SECTION 7.17. Right of Set-off 32 Schedules Schedule I Subsidiary Parties Schedule II Capital Stock; Debt Securities Schedule III Intellectual Property -ii- Exhibits Exhibit I Form of Supplement Exhibit II Form of Perfection Certificate -iii- GUARANTEE AND COLLATERAL AGREEMENT dated and effective as of April 2, 2007 (this “Agreement”), among CELANESE HOLDINGS LLC (the “Holdings”), CELANESE US HOLDINGS LLC (the “Company”), CELANESE AMERICAS CORPORATION (“CAC”), each GUARANTOR SUBSIDIARY party hereto and DEUTSCHE BANK AG, NEW YORK BRANCH, as Collateral Agent (in such capacity, the “Collateral Agent”) for the Secured Parties (as defined below). Reference is made to the Credit Agreement dated as of April 2, 2007 (as amended, supplemented, waived or otherwise modified from time to time, the “Credit Agreement”), among Holdings, the Company, CAC, certain other subsidiaries of the Company from time to time party thereto as a borrower, the LENDERS party thereto from time to time, DEUTSCHE BANK AG, NEW YORK BRANCH (“DBNY”), as administrative agent (in such capacity, the “Administrative Agent”), and as Collateral Agent, MERRILL LYNCH CAPITAL CORPORATION (“MLCC”), as syndication agent (in such capacity, the “Syndication Agent”), BANK OF AMERICA, N.A., as documentation agent (in such capacity, the “Documentation Agent”), and DEUTSCHE BANK AG, CAYMAN ISLANDS BRANCH, as Deposit Bank (in such capacity, the “Deposit Bank”). The obligations of the Lenders to extend and to maintain credit pursuant to the Credit Agreement are conditioned upon, among other things, the execution and delivery of this Agreement. Holdings, the Company, CAC and the Guarantor Subsidiaries will derive substantial benefits from such extensions of credit and are willing to execute and deliver this Agreement in order to induce the Lenders to extend such credit. Accordingly, the parties hereto agree as follows: ARTICLE I. Definitions SECTION 1.01. Credit Agreement . (a) Capitalized terms used in this Agreement and not otherwise defined herein have the respective meanings assigned thereto in the Credit Agreement. All terms defined in the New York UCC (as defined herein) and not defined in this Agreement have the meanings specified therein. (b) The rules of construction specified in Section 1.02 of the Credit Agreement also apply to this Agreement. SECTION 1.02. Other Defined Terms . As used in this Agreement, the following terms have the meanings specified below: “Account Debtor” means any person who is or who may become obligated to any Guarantor under, with respect to or on account of an Account. “Article 9 Collateral” has the meaning assigned such term in Section 4.01. “Claiming Guarantor” has the meaning assigned such term in Section 6.02. “Collateral” means Article 9 Collateral and Pledged Collateral. “Contributing Guarantor” has the meaning assigned such term in Section 6.02. “Control Agreement” means a securities account control agreement or commodity account control agreement, as applicable, in form and substance reasonably “Copyright License” means any written agreement, now or hereafter in effect, granting any right to any third party under any Copyright now or hereafter owned by any Guarantor or that any Guarantor otherwise has the right to license, or granting any right to any Guarantor under any Copyright now or hereafter owned by any third party, and all rights of any Guarantor under any such agreement. “Copyrights” means all of the following now owned or hereafter acquired by any Guarantor: (a) all copyright rights in any work subject to the copyright laws of the United States or any other country, whether as author, assignee, transferee or otherwise; and (b) all registrations and applications for registration of any such Copyright in the United States or any other country, including registrations, supplemental registrations and pending applications for registration in the United States Copyright Office, including those listed on Schedule III. “Credit Agreement” has the meaning assigned to such term in the preliminary statement of this Agreement. “Equity Interests” has the meaning provided in the Credit Agreement but excluding any interest otherwise included in such definition that is not a “security” or “financial asset” under Article VIII of the New York UCC. “Federal Securities Laws” has the meaning assigned to such term in Section 5.04. “General Intangibles” means all “General Intangibles” as defined in the New York UCC, including all choses in action and causes of action and all other intangible personal property of any Guarantor of every kind and nature (other than Accounts) now owned or hereafter acquired by any Guarantor, including corporate or other business records, indemnification claims, contract rights (including rights under leases, whether entered into as lessor or lessee, Swap Agreements and other agreements), Intellectual Property, goodwill, registrations, franchises, tax refund claims and any letter of credit, guarantee, claim, security interest or other security held by or granted to any Guarantor to secure payment by an Account Debtor of any of the Accounts. “Guaranteed Obligations” means, as to each Guarantor, all of the Obligations not owed directly by it. “Guaranteed Party” means, with respect to all Guaranteed Obligations, the Collateral Agent, the Administrative Agent and/or the Lenders to which such Guaranteed Obligations are owed. -2- “Guarantor” means, so long as such Person is a party hereto, each of Holdings, the Company, CAC and each Subsidiary Party. “Intellectual Property” means all intellectual and similar property of every kind and nature now owned or hereafter acquired by any Guarantor, including inventions, designs, Patents, Copyrights, Trademarks, Patent Licenses, Copyright Licenses, Trademark Licenses, trade secrets, domain names, confidential or proprietary technical and business information, know how or show how and all related documentation. “Investment Property” has the meaning assigned such term in the New York UCC. “Lenders” has the meaning assigned to such term in the preliminary statement of this Agreement. “Loan Document Obligations” means (a) the due and punctual payment by each Borrower of (i) the unpaid principal of and interest on the Loans made to such Borrower, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise, (ii) each payment (if any) required to be made by each Borrower under the Credit Agreement in respect of any Letter of Credit issued for its account, when and as due, including payments in respect of reimbursement of disbursements and interest thereon and (iii) all other monetary obligations of each Borrower under the Credit Agreement and each of the other Loan Documents, including obligations to pay fees, expense and reimbursement obligations and indemnification obligations, whether primary, secondary, direct, contingent, fixed or otherwise, including in the case of clauses (i), (ii) and (iii), interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding and (b) the due and punctual performance of all other obligations of each Borrower under or pursuant to the Credit Agreement and each of the other Loan Documents (other than this Agreement), including to provide cash collateral. “New York UCC” means the Uniform Commercial Code as from time to time in effect in the State of New York. “Noticed Event of Default” means any Event of Default as to which the Administrative Agent has given Holdings written notice that (i) such Event of Default constitutes a Noticed Event of Default and (ii) to the extent such notice may be given without violation of applicable law, the Collateral Agent intends, as a result of such Event of Default (alone or among others), to exercise its rights hereunder, provided that an Event of Default under Section 7.01(h) or (i) of the Credit Agreement shall in any event constitute a Noticed Event of Default. “Obligations” means (a) the Loan Document Obligations, (b) the due and punctual payment and performance of all the obligations of each Guarantor under and pursuant to this Agreement, (c) the due and punctual payment and performance of all obligations of each Guarantor under each Swap Agreement that (i) is in effect on the Effective Date with a counterparty that is a Lender or an Affiliate of a Lender as of the Effective Date or (ii) is entered into after the Effective Date with any counterparty that is a Lender or an Affiliate of a Lender at the time such Swap Agreement is entered into, and (d) the due and punctual payment and performance of all obligations of each Guarantor in respect of overdrafts and related liabilities owed to a Lender or any of its Affiliates and arising from cash management services (including treasury, depository, overdraft, credit or debit card, electronic funds transfer and other cash management arrangements). -3- “Patent License” means any written agreement, now or hereafter in effect, granting to any third party any right to make, use or sell any invention covered by a Patent, now or hereafter owned by any Guarantor or that any Guarantor otherwise has the right to license or granting to any Guarantor any right to make, use or sell any invention covered by a Patent, now or hereafter owned by any third party. “Patents” means all of the following now owned or hereafter acquired by any Guarantor: (a) all letters patent of the United States or the equivalent thereof in any other country, and all applications for letters patent of the United States or the equivalent thereof in any other country, including those listed on Schedule III, and (b) all reissues, continuations, divisions, continuations-in-part or extensions thereof, and the inventions disclosed or claimed therein, including the right to make, use and/or sell the inventions disclosed or claimed therein. “Perfection Certificate” means a certificate substantially in the form of Exhibit II, completed and supplemented with the schedules and attachments contemplated thereby, and duly executed by a Responsible Officer of Holdings, the Company, CAC and each Guarantor Subsidiary (determined as of the Effective Date). “Pledged Collateral” has the meaning assigned to such term in Section 3.01. “Pledged Debt Securities” has the meaning assigned to such term in Section 3.01. “Pledged Securities” means any promissory notes, stock certificates or other certificated securities now or hereafter included in the Pledged Collateral, including all certificates, instruments or other documents representing or evidencing any Pledged Collateral. “Pledged Stock” has the meaning assigned to such term in Section 3.01. “Secured Parties” means with respect to all Obligations, as appropriate, (i) the Lenders, (ii) the Administrative Agent and the Collateral Agent, (iii) each Issuing Bank, (iv) each counterparty to any Swap Agreement entered into with a Guarantor the obligations under which constitute Obligations, (v) each Lender or Affiliate owed obligations which constitute Obligations under clause (d) of the definition thereof, (vi) the beneficiaries of each indemnification obligation undertaken by any Guarantor under any Loan Document or existing as of the date of this Agreement and (vii) the successors and permitted assigns of each of the foregoing. “Security Interest” has the meaning assigned to such term in Section 4.01. “Specified Borrower” has the meaning assigned to such term in Section 6.01. -4- “Subsidiary Party” means, so long as a party hereto, each Guarantor Subsidiary in existence on the Effective Date and each other subsidiary required to become party hereto pursuant to Section 7.16. “Subsidiary Revolving Borrowers” has the meaning assigned such term in the preliminary statement of this Agreement. “Supplement” shall mean an instrument in the form of Exhibit I hereto. “Trademark License” means any written agreement, now or hereafter in effect, granting to any third party any right to use any Trademark now or hereafter owned by any Guarantor or that any Guarantor otherwise has the right to license, or granting to any Guarantor any right to use any Trademark now or hereafter owned by any third party. “Trademarks” means all of the following now owned or hereafter acquired by any Guarantor: (a) all trademarks, service marks, corporate names, company names, business names, fictitious business names, trade dress, logos, other source or business identifiers, designs and general intangibles of like nature, now existing or hereafter adopted or acquired, all registrations thereof (if any), and all registration applications filed in connection therewith, including registrations and applications in the United States Patent and Trademark Office or any similar offices in any State of the United States or any other country or any political subdivision thereof, and all renewals thereof, including those listed on Schedule III and (b) all goodwill associated therewith or symbolized thereby. ARTICLE II. Guarantee SECTION 2.01. Guarantee . Each Guarantor unconditionally guarantees, jointly with the other Guarantors and severally, as a primary obligor and not merely as a surety, the due and punctual payment and performance of its Guaranteed Obligations. Each Guarantor further agrees that its Guaranteed Obligations may be extended or renewed, in whole or in part, without notice to or further assent from it, and that it will remain bound upon its guarantee notwithstanding any extension or renewal of any of its Guaranteed Obligations. Each Guarantor waives presentment to, demand of payment from and protest to any Person of any of its Guaranteed Obligations, and also waives notice of acceptance of its guarantee and notice of protest for nonpayment. SECTION 2.02. Guarantee of Payment . Each Guarantor further agrees that its guarantee hereunder constitutes a guarantee of payment when due and not of collection, and waives any right to require that any resort be had by the Collateral Agent or any other Secured Party to any security held for the payment of its Guaranteed Obligations or to any balance of any Deposit Account or credit on the books of the Collateral Agent or any other Secured Party in favor of any Person. -5- SECTION 2.03. No Limitations, etc. (a) Except for termination of a Guarantor’s obligations hereunder as expressly provided for in Section 7.15, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of its Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor hereunder shall not be discharged or impaired or otherwise affected by: (i) the failure of the Administrative Agent, the Collateral Agent or any other Person to assert any claim or demand or to exercise or enforce any right or remedy under the provisions of any Loan Document or otherwise; (ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, any Loan Document or any other agreement, including with respect to any other Guarantor under this Agreement; (iii) any default, failure or delay, willful or otherwise, in the performance of the Obligations; (iv) any other act or omission that may or might in any manner or to any extent vary the risk of any Guarantor or otherwise operate as a discharge of any Guarantor as a matter of law or equity (other than the indefeasible payment in full in cash of all the Obligations), (v) any illegality, lack of validity or enforceability of any Obligation, (vi) any change in the corporate existence, structure or ownership of any Loan Party, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting any Loan Party or its assets or any resulting release or discharge of any Obligation, (vii) the existence of any claim, set-off or other rights that the Guarantor may have at any time against any Loan Party, the Collateral Agent, or any other corporation or Person, whether in connection herewith or any unrelated transactions, provided that nothing herein will prevent the assertion of any such claim by separate suit or compulsory counterclaim, (viii) any law, regulation, decree or order of any jurisdiction, or any other event, affecting any term of any of its Guaranteed Obligations or the Collateral Agent’s rights with respect thereto, including, without limitation: (A) the application of any such law, regulation, decree or order, including any prior approval, which would prevent the exchange of a foreign currency for Dollars or such other currency in which its Guaranteed Obligations are due, or the remittance of funds outside of such jurisdiction or the unavailability of Dollars or any such other currency in any legal exchange market in such jurisdiction in accordance with normal commercial practice; or -6- (B) a declaration of banking moratorium or any suspension of payments by banks in such jurisdiction or the imposition by such jurisdiction or any governmental authority thereof of any moratorium on, the required rescheduling or restructuring of, or required approval of payments on, any indebtedness in such jurisdiction; or (C) any expropriation, confiscation, nationalization or requisition by such country or any governmental authority that directly or indirectly deprives any Borrower of any assets or their use, or of the ability to operate its business or a material part thereof; or (D) any war (whether or not declared), insurrection, revolution, hostile act, civil strife or similar events occurring in such jurisdiction which has the same effect as the events described in clause (A), (B) or (C) above (in each of the cases contemplated in clauses (A) through (D) above, to the extent occurring or existing on or at any time after the date of this Agreement), and (ix) any other circumstance (including without limitation, any statute of limitations) or any existence of or reliance on any representation by the Collateral Agent that might otherwise constitute a defense to, or a legal or equitable discharge of, any Loan Party or the Guarantor or any other guarantor or surety. Each Guarantor expressly authorizes the respective Guaranteed Parties to take and hold security for the payment and performance of its Guaranteed Obligations, to exchange, waive or release any or all such security (with or without consideration), to enforce or apply such security and direct the order and manner of any sale thereof in their sole discretion or to release or substitute any one or more other guarantors or obligors upon or in respect of its Guaranteed Obligations, all without affecting the obligations of such Guarantor hereunder. Without limiting the generality of the foregoing, with respect to any of its Guaranteed Obligations that, in accordance with the express terms of any agreement pursuant to which such Guaranteed Obligations were created, were denominated in Dollars or any currency other than the currency of the jurisdiction where a Borrower is principally located, each Guarantor guarantees that it shall pay the Collateral Agent strictly in accordance with the express terms of such agreement, including in the amounts and in the currency expressly agreed to thereunder, irrespective of and without giving effect to any laws of the jurisdiction where a Borrower is principally located in effect from time to time, or any order, decree or regulation in the jurisdiction where a Borrower is principally located. (b) To the fullest extent permitted by applicable law, each Guarantor waives any defense based on or arising out of any defense of any Borrower or any other Loan Party or the unenforceability of its Guaranteed Obligations or any part thereof from any cause, or the cessation from any cause of the liability of any Borrower or any other Loan Party, other than the indefeasible payment in full in cash of all its Guaranteed Obligations. The Collateral Agent and the other Guaranteed Parties may, at their election, foreclose on any security held by one or more of them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with any Borrower or any other Loan Party or exercise any other right or remedy available to them against any Borrower or any other Loan Party, without affecting or impairing in any way the liability of any Guarantor hereunder except to the extent its Guaranteed Obligations have been fully and indefeasibly paid in full in cash. To the fullest extent permitted by applicable law, each Guarantor waives any defense arising out of any such election even though such election operates, pursuant to applicable law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Guarantor against any Borrower or any other Loan Party, as the case may be, or any security. -7- SECTION 2.04. Reinstatement. Each Guarantor agrees that its guarantee hereunder shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of any of its Guaranteed Obligations is rescinded or must otherwise be restored by the Administrative Agent or any other Guaranteed Party upon the bankruptcy or reorganization of any Borrower, any other Loan Party or otherwise. SECTION 2.05. Agreement to Pay; Subrogation. In furtherance of the foregoing and not in limitation of any other right that the Collateral Agent or any other Guaranteed Party has at law or in equity against any Guarantor by virtue hereof, upon the failure of any Borrower or any other Loan Party to pay any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, after notice of prepayment or otherwise, each Guarantor hereby promises to and will forthwith pay, or cause to be paid, to the Collateral Agent for distribution to the applicable Guaranteed Parties in cash the amount of such unpaid Guaranteed Obligation. Upon payment by any Guarantor of any sums to the Collateral Agent as provided above, all rights of such Guarantor against such Borrower, or other Loan Party or any other Guarantor arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subject to Article VI. SECTION 2.06. Information. Each Guarantor assumes all responsibility for being and keeping itself informed of the financial condition and assets of each Borrower and each other Loan Party, and of all other circumstances bearing upon the risk of nonpayment of its Guaranteed Obligations and the nature, scope and extent of the risks that such Guarantor assumes and incurs hereunder, and agrees that none of the Collateral Agent or the other Guaranteed Parties will have any duty to advise such Guarantor of information known to it or any of them regarding such circumstances or risks. SECTION 2.07. Maximum Liability. Anything herein or in any other Loan Document to the contrary notwithstanding, the maximum liability of each Guarantor hereunder and under the other Loan Documents shall in no event exceed the amount which can be guaranteed by such Guarantor under applicable federal and state laws relating to the insolvency of debtors (after giving effect to the right of contribution established in Section 6.02). -8- ARTICLE III. Pledge of Securities SECTION 3.01. Pledge. As security for the payment or performance, as the case may be, in full of its Obligations, each Guarantor hereby assigns and pledges to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, a security interest in all of such Guarantor’s right, title and interest in, to and under (a) the Equity Interests directly owned by it on the Effective Date (which shall be listed on Schedule II) and any other Equity Interests obtained in the future by such Guarantor and any certificates representing all such Equity Interests (all such Equity Interests and certificates referred to collectively as the “Pledged Stock”); provided that the Pledged Stock shall not include (i) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary, (ii) to the extent applicable law requires that a Subsidiary of such Guarantor issue directors’ qualifying shares, such shares or nominee or other similar shares, (iii) any Equity Interests with respect to which the Collateral and Guarantee Requirement or the other paragraphs of Section 5.10 of the Credit Agreement need not be satisfied by reason of Section 5.10(g) of the Credit Agreement, (iv) any Equity Interests of a Subsidiary to the extent that, as of the Effective Date, and for so long as, such a pledge of such Equity Interests would violate a contractual obligation binding on such Equity Interests, (v) any Equity Interests of a Subsidiary of a Guarantor acquired after the Effective Date if, and to the extent that, and for so long as, (A) a pledge of such Equity Interests would violate applicable law or any contractual obligation binding upon such Subsidiary and (B) such law or obligation existed at the time of the acquisition thereof and was not created or made binding upon such Subsidiary in contemplation of or in connection with the acquisition of such Subsidiary (provided that the foregoing clause (B) shall not apply in the case of a joint venture, including a joint venture that is a Subsidiary), provided that such each Guarantor shall use its commercially reasonable efforts to avoid any such restrictions classified in this clause (v) or (vi) any Equity Interests of a Person that is not directly or indirectly a Subsidiary; (b)(i) the debt securities listed opposite the name of such Guarantor on Schedule II, (ii) to the extent required by Section 3.02(b), any debt securities in the future issued to, or acquired by, such Guarantor and (iii) the promissory notes and any other instruments, if any, evidencing such debt owed to any Guarantor (the “Pledged Debt Securities”); (c) subject to Section 3.06, all payments of principal or interest, dividends, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect of, in exchange for or upon the conversion of, and all other proceeds received in respect of, the securities referred to in clauses (a) and (b) above; (d) subject to Section 3.06, all rights and privileges of such Guarantor with respect to the securities and other property referred to in clauses (a), (b) and (c) above; and (e) all proceeds of any of the foregoing (the items referred to in clauses (a) through (e) above being collectively referred to as the “Pledged Collateral”). TO HAVE AND TO HOLD the Pledged Collateral, together with all right, title, interest, powers, privileges and preferences pertaining or incidental thereto, unto the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, forever; subject, however, to the terms, covenants and conditions hereinafter set forth. -9- SECTION 3.02. Delivery of the Pledged Collateral. (a) Each Guarantor hereby represents that all Pledged Securities owned by such Guarantor on the Effective Date have been delivered to the Collateral Agent. Each Guarantor agrees promptly, upon its first becoming a Guarantor hereunder or thereafter to the extent first acquiring same, to deliver or cause to be delivered to the Collateral Agent, for the benefit of the Secured Parties, any and all Pledged Securities to the extent such Pledged Securities, in the case of promissory notes or other instruments evidencing Indebtedness, are required to be delivered pursuant to paragraph (b) of this Section 3.02. (b) Each Guarantor will cause any Indebtedness for borrowed money having an aggregate principal amount that has a Dollar Equivalent in excess of $10,000,000 (other than intercompany current liabilities incurred in the ordinary course) owed to such Guarantor by Holdings or any Subsidiary to be evidenced by a promissory note or other instrument that is pledged and delivered to the Collateral Agent, together with note powers or other instruments of transfer with respect thereto endorsed in blank, for the benefit of the Secured Parties, pursuant to the terms hereof. To the extent any such promissory note is a demand note, each Guarantor party thereto agrees, if requested by the Collateral Agent, to immediately demand payment thereunder upon an Event of Default specified under Section 7.01(b), (c), (f), (h) or (i) of the Credit Agreement. (c) Upon delivery to the Collateral Agent, (i) any Pledged Securities required to be delivered pursuant to the foregoing paragraphs (a) and (b) of this Section 3.02 shall be accompanied by stock powers or note powers, as applicable, duly executed in blank or other instruments of transfer reasonably satisfactory to the Collateral Agent and by such other instruments and documents as the Collateral Agent may reasonably request and (ii) all other property composing part of the Pledged Collateral delivered pursuant to the terms of this Agreement shall be accompanied to the extent necessary to perfect the security interest in or allow realization on the Pledged Collateral by proper instruments of assignment duly executed by the applicable Guarantor and such other instruments or documents (including issuer acknowledgments in respect of uncertificated securities) as the Collateral Agent may reasonably request. Each delivery (or subsequent confirmation by a successor of the prior delivery) of Pledged Securities hereunder shall be accompanied by a schedule describing the securities, which schedule shall be attached hereto as Schedule II and made a part of Schedule II; provided that failure to attach any such schedule hereto shall not affect the validity of such pledge of such Pledged Securities. Each schedule so delivered shall supplement any prior schedules so delivered. SECTION 3.03. Representations, Warranties and Covenants. The Guarantors, jointly and severally, represent, warrant and covenant to and with the Collateral Agent, for the benefit of the Secured Parties, that: (a) Schedule II as of the Effective Date correctly sets forth the percentage of the issued and outstanding shares of each class of the Equity Interests of the issuer thereof represented by the Pledged Stock and includes all Equity Interests, debt securities and promissory notes or instruments evidencing Indebtedness required to be pledged hereunder in order to satisfy the Collateral and Guarantee Requirement; -10- (b) the Pledged Stock and Pledged Debt Securities (solely with respect to Pledged Debt Securities issued by a person that is not a Subsidiary of Holdings or an Affiliate of any such subsidiary, to the best of each Guarantor’s knowledge) have been duly and validly authorized and issued by the issuers thereof and (i) in the case of Pledged Stock, are fully paid and nonassessable and (ii) in the case of Pledged Debt Securities (solely with respect to Pledged Debt Securities issued by a person that is not a Subsidiary of Holdings or an Affiliate of any such subsidiary, to the best of each Guarantor’s knowledge) are legal, valid and binding obligations of the issuers thereof subject to (i) the effects of bankruptcy, insolvency, moratorium, reorganization, fraudulent conveyance or other similar laws affecting creditors’ rights generally, (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (iii) implied covenants of good faith and fair dealing; (c) except for the security interests granted hereunder, each Guarantor (i) is and, subject to any transfers made in compliance with the Credit Agreement, will continue to be the direct owner, beneficially and of record, of the Pledged Securities indicated on Schedule II as owned by such Guarantor, (ii) holds the same free and clear of all Liens, other than Liens permitted under Section 6.02 of the Credit Agreement, (iii) will make no assignment, pledge, hypothecation or transfer of, or create or permit to exist any security interest in or other Lien on, the Pledged Collateral, other than pursuant to a transaction permitted by the Credit Agreement and other than Liens permitted under Section 6.02 of the Credit Agreement and (iv) subject to the rights of such Guarantor under the Loan Documents to dispose of Pledged Collateral, will defend its title or interest hereto or therein against any and all Liens (other than Liens permitted under Section 6.02 of the Credit Agreement), however arising, of all persons; (d) except for restrictions and limitations imposed by the Loan Documents or securities laws generally or otherwise permitted to exist pursuant to the terms of the Credit Agreement, the Pledged Collateral is and will continue to be freely transferable and assignable, and none of the Pledged Collateral is or will be subject to any option, right of first refusal, shareholders agreement, charter or by-law provisions or contractual restriction of any nature that might, in any material respect, prohibit, impair, delay or adversely affect the pledge of such Pledged Collateral hereunder, the sale or disposition thereof pursuant hereto or the exercise by the Collateral Agent of rights and remedies hereunder; (e) each Guarantor has the power and authority to pledge the Pledged Collateral pledged by it hereunder in the manner hereby done or contemplated; (f) no consent or approval of any Governmental Authority, any securities exchange or any other person was or is necessary to the validity of the pledge effected hereby (other than such as have been obtained and are in full force and effect); (g) by virtue of the execution and delivery by the Guarantors of this Agreement, when any Pledged Securities that constitute certificated securities or instruments are delivered to the Collateral Agent, for the benefit of the Secured Parties, in accordance with this Agreement, the Collateral Agent will obtain, for the benefit of the Secured Parties, a legal, valid and perfected first priority lien upon and security interest in such Pledged Securities as security for the payment and performance of the Obligations under applicable laws in the United States; -11- (h) each Guarantor does not own on the Effective Date, any security constituting an equity interest in any Person to the extent such security constitutes an uncertificated security and will not acquire any such uncertificated security thereafter except in each case to the extent it has complied with the provisions of the third sentence of Section 4.04(c), to the extent applicable thereto; and (i) the pledge effected hereby is effective to vest in the Collateral Agent, for the benefit of the Secured Parties, the rights of the Collateral Agent in the Pledged Collateral as set forth herein under applicable laws in the United States. SECTION 3.04. [Reserved]. SECTION 3.05. Registration in Nominee Name; Denominations. The Collateral Agent, on behalf of the Secured Parties, shall have the right (in its sole and absolute discretion) to hold the Pledged Securities in the name of the applicable Guarantor, endorsed or assigned in blank or in favor of the Collateral Agent or, if a Noticed Event of Default shall have occurred and be continuing, in its own name as pledgee or the name of its nominee (as pledgee or as sub-agent). Each Guarantor will promptly give to the Collateral Agent copies Securities registered in the name of such Guarantor. SECTION 3.06. Voting Rights; Dividends and Interest, etc. (a) Unless and until a Noticed Event of Default shall have occurred and be continuing: (i) Each Guarantor shall be entitled to exercise any and all voting and/or other consensual rights and powers inuring to an owner of Pledged Securities or any part thereof for any purpose consistent with the terms of this Agreement, the Credit Agreement and the other Loan Documents; provided that such rights and powers shall not be exercised in any manner that could reasonably be expected to materially and adversely affect the rights inuring to a holder of any Pledged Securities, the rights and remedies of any of the Collateral Agent or the other Secured Parties under this Agreement, the Credit Agreement or any other Loan Document or the ability of the Secured Parties to exercise the same. (ii) The Collateral Agent shall promptly execute and deliver to each Guarantor, or cause to be executed and delivered to such Guarantor, all such proxies, powers of attorney and other instruments as such Guarantor may reasonably request for the purpose of enabling such Guarantor to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to subparagraph (i) above. -12- (iii) Each Guarantor shall be entitled to receive and retain any and all dividends, interest, principal and other distributions paid on or distributed in respect of the Pledged Securities to the extent and only to the extent that (x) such dividends, interest, principal and other distributions are permitted by, and otherwise paid or distributed in accordance with, the terms and conditions of the Credit Agreement, the other Loan Documents and applicable laws and (y) such payment on distribution is not payable directly to the Collateral Agent pursuant to the terms of the applicable Pledged Securities; provided that any noncash dividends, interest, principal or other distributions that constitute Pledged Securities (whether resulting from a subdivision, combination or reclassification of the outstanding Equity Interests of the issuer of any Pledged Securities or received in exchange for Pledged Securities or any part thereof, or in redemption thereof, or as a result of any merger, consolidation, acquisition or other exchange of assets to which such issuer may be a party or otherwise) shall be and become part of the Pledged Collateral, and, if received by any Guarantor, shall not be commingled by such Guarantor with any of its other funds or property but shall be held separate and apart therefrom, shall be held in trust for the benefit of the Collateral Agent, for the benefit of the Secured Parties, and shall be forthwith delivered to the Collateral Agent, for the benefit of the Secured Parties, in the same form as so received (accompanied by stock powers duly executed in blank or other appropriate instruments of transfer satisfactory to the Collateral Agent). (b) Upon the occurrence and during the continuance of a Noticed Event of Default, all rights of any Guarantor to dividends, interest, principal or other distributions that such Guarantor is authorized to receive pursuant to paragraph (a)(iii) of this Section 3.06 shall cease, and all such rights shall thereupon become vested, for the benefit of the Secured Parties, in the Collateral Agent which shall have the sole and exclusive right and authority to receive and retain such dividends, interest, principal or other distributions. All dividends, interest, principal or other distributions received by any Guarantor contrary to the provisions of this Section 3.06 shall not be commingled by such Guarantor with any of its other funds or property but shall be held separate and apart therefrom, shall be held in trust for the benefit of the Collateral Agent, for the benefit of the Secured Parties, and shall be forthwith delivered to the Collateral Agent, for the benefit of the Secured Parties, in the same form as so received (accompanied by stock powers duly executed in blank or other appropriate instruments of transfer reasonably satisfactory to the Collateral Agent). Any and all money and other property paid over to or received by the Collateral Agent pursuant to the provisions of this paragraph (b) shall be retained by the Collateral Agent in an account to be established by the Collateral Agent upon receipt of such money or other property and shall be applied in accordance with the provisions of Section 5.02. After all Events of Default have been cured or waived and the Term Borrower has delivered to the Collateral Agent a certificate to that effect, the Collateral Agent shall promptly repay to each Guarantor (without interest) all dividends, interest, principal or other distributions that such Guarantor would otherwise have been permitted to retain pursuant to the terms of paragraph (a)(iii) of this Section 3.06 and that remain in such account. (c) Upon the occurrence and during the continuance of a Noticed Event of Default, all rights of any Guarantor to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to paragraph (a)(i) of this Section 3.06, and the obligations of the Collateral Agent under paragraph (a)(ii) of this Section 3.06, shall cease, and all such rights shall thereupon become vested in the Collateral Agent, for the benefit of the Secured Parties, which shall have the sole and exclusive right and authority to exercise such voting and consensual rights and powers; provided that, unless otherwise directed by the Required Lenders, the Collateral Agent shall have the right from time to time following and during the continuance of an Event of Default to permit the Guarantors to exercise such rights. After all Noticed Events of Collateral Agent a certificate to that effect, each Guarantor shall have the right to exercise the voting and/or consensual rights and powers that such Guarantor would otherwise have been entitled to exercise pursuant to the terms of paragraph (a)(i) above. -13- ARTICLE IV. SECTION 4.01. Security Interest. (a) As security for the payment or performance, as the case may be, in full of the Obligations, each Guarantor hereby assigns and pledges to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title and interest in or to any and all of the following assets and properties now owned or at any time hereafter acquired by such Guarantor or in which such Guarantor now has or at any time in the future may acquire any right, title or interest (collectively, the “Article 9 Collateral”): (i) all Accounts; (ii) all Chattel Paper; (iii) all cash and Deposit Accounts; (iv) all Documents; (v) all Equipment; (vi) all General Intangibles; (vii) all Goods; (viii) all Instruments; (ix) all Inventory; (x) all Investment Property; (xi) all Letter-of-Credit Rights; (xii) all Commercial Tort Claims listed on Schedule 4.01 hereto; -14- (xiii) all books and records pertaining to the Article 9 Collateral; and (xiv) to the extent not otherwise included, all proceeds, Supporting Obligations and products of any and all of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing. Notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of a security interest in (a) any vehicle covered by a certificate of title or ownership, (b) any assets (including Equity Interests) with respect to which the Collateral and Guarantee Requirement or the other paragraphs of Section 5.10 of the Credit Agreement need not be satisfied by reason of Section 5.10(g) of the Credit Agreement, (c) any assets to the extent that, as of the Effective Date, and for so long as, such grant of a security interest would violate a contractual obligation or applicable law binding on such asset, (d) any property of any Person acquired by a Guarantor after the Effective Date pursuant to Section 6.04(l) of the Credit Agreement, if, and to the extent that, and for so long as, (A) such grant of a security interest would violate applicable law or any contractual obligation binding upon such property and (B) such law or obligation existed at the time of the acquisition thereof and was not created or made binding upon such property in contemplation of or in connection with the acquisition of such Subsidiary (provided that the foregoing clause (B) shall not apply in the case of a joint venture, including a joint venture that is a Subsidiary) provided that each Guarantor shall use its commercially reasonable efforts to avoid any such restriction described in this clause (d), or (e) any Letter of Credit Rights to the extent any Guarantor is required by applicable law to apply the proceeds of a drawing of such Letter of Credit for a specified purpose. (b) Each Guarantor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (i) whether such Guarantor is an organization, the type of organization and any organizational identification number issued to such Guarantor, (ii) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates and (iii) a description of collateral that describes such property in any other manner as the Collateral Agent may reasonably determine is necessary or advisable to ensure the perfection of the security interest in the Article 9 Collateral granted under this Agreement, including describing such property as “all assets” or “all property” or words of similar effect. Each Guarantor agrees to provide such information to the Collateral Agent promptly upon request. The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office or any similar office in any other country) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Guarantor, without the signature of any Guarantor, and naming any Guarantor or the Guarantors as debtors and the Collateral Agent as secured party. -15- (c) The Security Interest is granted as security only and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Guarantor with respect to or arising out of the Article 9 Collateral. SECTION 4.02. Representations and Warranties. The Guarantors jointly and severally represent and warrant to the Collateral Agent and the Secured Parties that: (a) Each Guarantor has good and valid rights in and title to all material Article 9 Collateral with respect to which it has purported to grant a Security Interest hereunder and has full power and authority to grant to the Collateral Agent the Security Interest in such Article 9 Collateral pursuant hereto and to execute, deliver and perform its obligations in accordance with the terms of this Agreement, without the consent or approval of any other person other than any consent or approval that has been obtained and is in full force and effect. (b) The Perfection Certificate has been duly prepared, completed and executed and the information set forth therein, including the exact legal name of each Guarantor, is correct and complete, in all material respects, as of the Effective Date. Uniform Commercial Code financing statements (including fixture filings, as applicable) or other appropriate filings, recordings or registrations containing a description of the Article 9 Collateral have been prepared by the Collateral Agent based upon the information provided to the Collateral Agent in the Perfection Certificate for filing in each governmental, municipal or other office specified in Schedule 7 to the Perfection Certificate (or specified by notice from the Company to the Collateral Agent after the Effective Date in the case of filings, recordings or registrations required by Section 5.10 of the Credit Agreement), and constitute all the filings, recordings and registrations (other than filings required to be made in the United States Patent and Trademark Office and the United States Copyright Office in order to perfect the Security Interest in Article 9 Collateral consisting of United States issued Patents and applications, United States registered Trademarks and applications and United States registered Copyrights) that are necessary to publish notice of and protect the validity of and to establish a legal, valid and perfected security interest in favor of the Collateral Agent (for the benefit of the Secured Parties) in respect of all Article 9 Collateral in which the Security Interest may be perfected by filing, recording or registration in the United States (or any political subdivision thereof) and its territories and possessions, and no further or subsequent filing, refiling, recording, rerecording, registration or reregistration is necessary in any such jurisdiction, except as provided under applicable law with respect to the filing of continuation statements or amendments. Each Guarantor represents and warrants that a fully executed agreement in the form hereof (or a short form hereof which form shall be reasonably acceptable to the Collateral Agent) containing a description of all Article 9 Collateral consisting of United States issued Patents (and Patents for which United States applications are pending), United States registered Trademarks (and Trademarks for which United States registration applications are pending) and United States registered Copyrights (and Copyrights for which United States registration applications are pending) has been delivered to the Collateral Agent for recording with the United States Patent and Trademark Office and the United States Copyright Office pursuant to 35 U.S.C. § 261, 15 U.S.C. § 1060 or 17 U.S.C. § 205 and the regulations thereunder, as applicable, and reasonably requested by the Collateral Agent, to protect the validity of and to establish a legal, valid and perfected security interest in favor of the Collateral Agent, for the benefit of the Secured Parties, in respect of all Article 9 Collateral consisting of the foregoing in which a security interest may be perfected by recording with the United States Patent and Trademark Office and the United States Copyright Office. -16- (c) The Security Interest constitutes (i) a legal and valid security interest in all the Article 9 Collateral securing the payment and performance of the Obligations, (ii) subject to the filings described in Section 4.02(b), a perfected security interest in all Article 9 Collateral in which a security interest may be perfected by filing, recording or registering a financing statement or analogous document in the United States (or any political subdivision thereof) and its territories and possessions pursuant to the New York UCC or other applicable law in such jurisdictions and (iii) a security interest that shall be perfected in all Article 9 Collateral in which a security interest may be perfected upon the receipt and recording of this Agreement with the United States Patent and Trademark Office and the United States Copyright Office, as applicable. The Security Interest is and shall be prior to any other Lien on any of the Article 9 Collateral, other than Liens expressly permitted pursuant to Section 6.02 of the Credit Agreement or arising by operation of law. (d) The Article 9 Collateral is owned by the Guarantors free and clear of any Lien, other than Liens expressly permitted pursuant to Section 6.02 of the Credit Agreement or arising by operation of law. None of the Guarantors has filed or consented to the filing of (i) any financing statement or analogous document under the New York UCC or any other applicable laws covering any Article 9 Collateral, (ii) any assignment in which any Guarantor assigns any Article 9 Collateral or any security agreement or similar instrument covering any Article 9 Collateral with the United States Patent and Trademark Office or the United States Copyright Office or (iii) any assignment in which any Guarantor assigns any Article 9 Collateral or any security agreement or similar instrument covering any Article 9 Collateral with any foreign governmental, municipal or other office, which financing statement or analogous document, assignment, security agreement or similar instrument is still in effect, except, in each case, for Liens expressly permitted pursuant to Section 6.02 of the Credit Agreement. (e) None of the Guarantors holds any Commercial Tort Claim individually in excess of $1,000,000 as of the Effective Date except as indicated on the Perfection Certificate. (f) All Accounts have been originated by the Guarantors and all Inventory has been acquired by the Guarantors in the ordinary course of business. SECTION 4.03. Covenants. (a) Each Guarantor agrees promptly (and in any event within 30 days of such change) to notify the Collateral Agent in writing of any change (i) in its legal name, (ii) in its type of organization or corporate form, (iii) in its Federal Taxpayer Identification Number or organizational identification number or (iv) in its jurisdiction of organization. Each Guarantor agrees promptly to provide the Collateral Agent with certified organizational documents reflecting any of the changes described in the immediately preceding sentence. Each Guarantor agrees not to effect or permit any change referred to in the first sentence of this paragraph (a) unless all filings have been made, or are made within any required timeframe prescribed by applicable law, under the applicable Uniform Commercial Code or otherwise that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected first priority security interest in all the Article 9 Collateral, for the benefit of the Secured Parties. Each Guarantor agrees promptly to notify the Collateral Agent if any material portion of the Article 9 Collateral owned or held by such Guarantor is damaged or destroyed. -17- (b) Subject to the rights of such Guarantor under the Loan Documents to dispose of Collateral, each Guarantor shall, at its own expense, take any and all actions necessary to defend title to the Article 9 Collateral against all persons and to defend the Security Interest of the Collateral Agent, for the benefit of the Secured Parties, in the Article 9 Collateral and the priority thereof against any Lien not expressly permitted pursuant to Section 6.02 of the Credit Agreement. (c) Each Guarantor agrees, at its own expense, to execute, acknowledge, deliver and cause to be duly filed all such further instruments and documents and take all such actions as the Collateral Agent may from time to time reasonably request to better assure, preserve, protect and perfect the Security Interest and the rights and remedies created hereby, including the payment of any fees and taxes required in connection with the execution and delivery of this Agreement, the granting of the Security Interest and the filing of any financing statements (including fixture filings) or other documents in connection herewith or therewith. If any amount payable under or in connection with any of the Article 9 Collateral that is in excess of $10,000,000 is or shall be or become evidenced by any promissory note or other instrument, such note or instrument shall be promptly pledged and delivered to the Collateral Agent, for the benefit of the Secured Parties, accompanied by executed instruments of transfer reasonably satisfactory to the Collateral Agent. (d) After the occurrence of an Event of Default and during the continuance thereof, the Collateral Agent shall have the right to verify under reasonable procedures the validity, amount, quality, quantity, value, condition and status of, or any other matter relating to, the Article 9 Collateral, including, in the case of Accounts or Article 9 Collateral in the possession of any third person (following notice to the Term Borrower of its intention to do so), by Collateral for the purpose of making such a verification. The Collateral Agent shall have the right to share any information it gains from such inspection or verification with any Secured Party. (e) At its option at any time which an Event of Default exists, the Collateral Agent may discharge past due taxes, assessments, charges, fees, Liens, security interests or other encumbrances at any time levied or placed on the Article 9 Collateral and not permitted pursuant to Section 6.02 of the Credit Agreement, and may pay for the maintenance and preservation of the Article 9 Collateral to the extent any Guarantor fails to do so as required by the Credit Agreement or this Agreement, and each Guarantor jointly and severally agrees to reimburse the Collateral Agent on demand for any reasonable payment made or any reasonable expense incurred by the Collateral Agent pursuant to the foregoing authorization; provided, however, that nothing in this Section 4.03(e) shall be interpreted as excusing any Guarantor from the performance of, or imposing any obligation on the Collateral Agent or any Secured Party to cure or perform, any covenants or other promises of any Guarantor with respect to taxes, assessments, charges, fees, Liens, security interests or other encumbrances and maintenance as set forth herein or in the other Loan Documents. -18- (f) Each Guarantor (rather than the Collateral Agent or any Secured Party) shall remain liable for the observance and performance of all the conditions and obligations to be observed and performed by it under each contract, agreement or instrument relating to the Article 9 Collateral and each Guarantor jointly and severally agrees to indemnify and hold harmless the Collateral Agent and the Secured Parties from and against any and all liability for such performance. (g) None of the Guarantors shall make or permit to be made an assignment, pledge or hypothecation of the Article 9 Collateral or shall grant any other Lien in respect of the Article 9 Collateral, except as permitted by the Credit Agreement. None of the Guarantors shall make or permit to be made any transfer of the Article 9 Collateral and each Guarantor shall remain at all times in possession of the Article 9 Collateral owned by it, except as permitted by the Credit Agreement. (h) None of the Guarantors will, without the Collateral Agent’s prior written consent, grant any extension of the time of payment of any Accounts included in the Article 9 Collateral, compromise, compound or settle the same for less than the full amount thereof, release, wholly or partly, any person liable for the payment thereof or allow any credit or discount whatsoever thereon, other than extensions, credits, discounts, compromises or settlements granted or made in the ordinary course of business (it being agreed that nothing in this clause (h) shall prohibit sales of receivables permitted by Section 6.05(g) of the Credit Agreement). (i) Each Guarantor irrevocably makes, constitutes and appoints the Collateral Agent (and all officers, employees or agents designated by the Collateral Agent) as such Guarantor’s true and lawful agent (and attorney in fact) for the purpose, during the continuance of an Event of Default, of making, settling and adjusting claims in respect of Article 9 Collateral under policies of insurance, endorsing the name of such Guarantor on any check, draft, instrument or other item of payment for the proceeds of such policies of insurance and for making all determinations and decisions with respect thereto. In the event that any Guarantor at any time or times while an Event of Default exists fails to obtain or maintain any of the policies of insurance required hereby or to pay any premium in whole or part relating thereto, the Collateral Agent may, without waiving or releasing any obligation or liability of the Guarantors hereunder or any Event of Default, in its sole discretion, obtain and maintain such policies of insurance and pay such premium and take any other actions with respect thereto as the Collateral Agent reasonably deems advisable. All sums disbursed by the Collateral Agent in connection with this Section 4.03(i), including reasonable attorneys’ fees, court costs, expenses and other charges relating thereto, shall be payable, upon demand, by the Guarantors to the Collateral Agent and shall be additional Obligations secured hereby. -19- SECTION 4.04. Other Actions. In order to further ensure the attachment, perfection and priority of, and the ability of the Collateral Agent to enforce, for the benefit of the Secured Parties, the Collateral Agent’s security interest in the Article 9 Collateral, each Guarantor agrees, in each case at such Guarantor’s own expense, to take the following actions with, respect to the following Article 9 Collateral: (a) Instruments and Tangible Chattel Paper. If any Guarantor shall at any time hold or acquire any Instruments or Tangible Chattel Paper evidencing an amount in excess of $10,000,000, such Guarantor shall forthwith endorse, assign and deliver the same to the Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank as the Collateral Agent may from time to time reasonably request. (b) Cash Accounts. No Guarantor shall grant Control of any Deposit Account to any Person other than the Collateral Agent. (c) Investment Property. Except to the extent otherwise provided in Article III, if any Guarantor shall at any time hold or acquire any Certificated Security, such Guarantor shall forthwith endorse, assign and deliver the same to the Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank as the Collateral Agent may from time to time reasonably specify. If any security now or hereafter acquired by any Guarantor is uncertificated and is issued to such Guarantor or its nominee directly by the issuer thereof, upon the Collateral Agent’s reasonable request while an Event of Default exists, such Guarantor shall promptly notify the Collateral Agent of such uncertificated securities and pursuant to an agreement in form and substance reasonably satisfactory to the Collateral Agent, either (i) cause the issuer to agree to comply with instructions from the Collateral Agent as to such security, without further consent of any Guarantor or such nominee, or (ii) cause the issuer to register the Collateral Agent as the registered owner of such security. If any security or other Investment Property, whether certificated or uncertificated, representing an Equity Interest in a third party and having a fair market value in excess of $10,000,000 now or hereafter acquired by any Guarantor is held by such Guarantor or its nominee through a securities intermediary or commodity intermediary, such Guarantor shall promptly notify the Collateral Agent thereof and, at the Collateral Agent’s request and option, pursuant to a Control Agreement in form and substance reasonably satisfactory to the Collateral Agent, either (A) cause such securities intermediary or commodity intermediary, as applicable, to agree, in the case of a securities intermediary, to comply with entitlement orders or other instructions from the Collateral Agent to such securities intermediary as to such securities or other Investment Property or, in the case of a commodity intermediary, to apply any value distributed on account of any commodity contract as directed by the Collateral Agent to such commodity intermediary, in each case without further consent of any Guarantor or such nominee, or (B) in the case of Financial Assets or other Investment Property held through a securities intermediary, arrange for the Collateral Agent to become the entitlement holder with respect to such Investment Property, for the benefit of the Secured Parties, with such Guarantor being permitted, only with the consent of the Collateral Agent, to exercise rights to withdraw or otherwise deal with such Investment Property. The Collateral Agent agrees with each of the Guarantors that the Collateral Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by any Guarantor, unless an Event of Default has occurred and is continuing or, after giving effect to any such withdrawal or dealing rights, would occur. The provisions of this paragraph (c) shall not apply to any Financial Assets credited to a securities account for which the Collateral Agent is the securities intermediary. -20- (d) Commercial Tort Claims. If any Guarantor shall at any time hold or acquire a Commercial Tort Claim in an amount reasonably estimated to exceed $10,000,000, such Guarantor shall promptly notify the Collateral Agent thereof in a writing signed by such Guarantor, including a summary description of such claim, and grant to the Collateral Agent in writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance reasonably satisfactory to the Collateral Agent. SECTION 4.05. Covenants Regarding Patent, Trademark and Copyright Collateral. (a) Each Guarantor agrees that it will not knowingly do any act or omit to do any act (and will exercise commercially reasonable efforts to prevent its licensees from knowingly doing any act or knowingly omitting to do any act) whereby any Patent that is material to the normal conduct of such Guarantor’s business may become prematurely invalidated or dedicated to the public, and agrees that it shall take commercially reasonable steps with respect to any material products covered by any such Patent as necessary and sufficient to establish and preserve its rights under applicable patent laws. (b) Each Guarantor will, and will use its commercially reasonable efforts to cause its licensees or its sublicensees to, for each owned Trademark necessary to the normal conduct of such Guarantor’s business, (i) maintain such Trademark in full force free from any adjudication of abandonment or invalidity for non use, (ii) maintain the quality of products and services offered under such Trademark on all material respects, (iii) display such Trademark with notice of federal or foreign registration or claim of trademark or service mark as required under applicable law and (iv) not knowingly use or knowingly permit its licensees’ use of such Trademark in violation of any third party rights. (c) Each Guarantor will, and will use its commercially reasonable efforts to cause its licensees or its sublicensees to, for each work covered by a material Copyright necessary to the normal conduct of such Guarantor’s business that it publishes, displays and distributes, use copyright notice as required under applicable copyright laws. (d) Each Guarantor shall notify the Collateral Agent promptly if it knows that any Patent, Trademark or Copyright material to the normal conduct of such Guarantor’s business may imminently become abandoned, lost or dedicated to the public, or of any materially adverse determination or development, (excluding office actions and similar determinations or developments in the United States Patent and Trademark Office, United States Copyright Office, any court or any similar office of any country), regarding such Guarantor’s ownership of any such material Patent, Trademark or Copyright or its right to register or to maintain the same. -21- (e) Each Guarantor, either itself or through any agent, employee, licensee or designee, shall (i) inform the Collateral Agent on a semi-annual basis of each application by itself, or through any agent, employee, licensee or designee, for any Patent with the United States Patent and Trademark Office and each registration of any Trademark or Copyright with the United States Patent and Trademark Office, the United States Copyright Office or any comparable office or agency in any other country filed during the preceding six-month period, and (ii) upon the reasonable request of the Collateral Agent, execute and deliver any and all agreements, instruments, documents and papers as the Collateral Agent may reasonably request to evidence the Collateral Agent’s security interest in such Patent, Trademark or Copyright. (f) Each Guarantor shall exercise its reasonable business judgment in any proceeding before the United States Patent and Trademark Office, the United States Copyright Office or any comparable office or agency in any other country with respect to maintaining and pursuing each material application relating to any Patent, Trademark and/or Copyright (and obtaining the relevant grant or registration) material to the normal conduct of such Guarantor’s business and to maintain (i) each issued Patent and (ii) the registrations of each Trademark and each Copyright, in each case that is material to the normal conduct of such Guarantor’s business, including, when applicable and necessary in such Guarantor’s reasonable business judgment, timely filings of applications for renewal, affidavits of use, affidavits of incontestability and payment of maintenance fees, and, if any Guarantor believes necessary in its reasonable business judgment, to initiate opposition, interference and cancellation proceedings against third parties. ARTICLE V. Remedies SECTION 5.01. Remedies Upon Default . Upon the occurrence and during the continuance of a Noticed Event of Default, each Guarantor agrees to deliver each item of Collateral to the Collateral Agent on demand, and it is agreed that the Collateral Agent shall have the right to take any of or all the following actions at the same or different times: (a) with respect to any Article 9 Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and conveyance of any of or all such Article 9 Collateral by the applicable Guarantors to the Collateral Agent or to license or sublicense, whether general, special or otherwise, and whether on an exclusive or a nonexclusive basis, any such Article 9 Collateral throughout the world on such terms and conditions and in such manner as the Collateral Agent shall determine (other than in violation of any then existing licensing arrangements to the extent that waivers thereunder cannot be obtained) and (b) with or without legal process and with or without prior notice or demand for performance, to take possession of the Article 9 Collateral and without liability for trespass to enter any premises where the Article 9 Collateral may be located for the purpose of taking possession of or removing the Article 9 Collateral and, generally, to exercise any and all rights afforded to a secured party under the applicable Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing, each Guarantor agrees that the Collateral Agent shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral at a public or private sale or at any broker’s board or on any securities exchange, for cash, upon credit or for future delivery as the Collateral Agent shall deem appropriate. The Collateral Agent shall be authorized in connection with any sale of a security (if it deems it advisable to do so) pursuant to the foregoing to restrict the prospective bidders or purchasers to persons who represent and agree that they are purchasing such security for their own account, for investment, and not with a view to the distribution or sale thereof. Upon consummation of any such sale of Collateral pursuant to this Section 5.01 the Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Guarantor, and each Guarantor hereby waives and releases (to the extent permitted by law) all rights of redemption, stay, valuation and appraisal that such Guarantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted. -22- The Collateral Agent shall give the applicable Guarantors 10 Business Days’ written notice (which each Guarantor agrees is reasonable notice within the meaning of Section 9 612 of the New York UCC or its equivalent in other jurisdictions) of the Collateral Agent’s intention to make any sale of Collateral. Such notice, in the case of a public sale, shall state the time and place for such sale and, in the case of a sale at a broker’s board or on a securities exchange, shall state the board or exchange at which such sale is to be made and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Collateral Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or the portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Collateral Agent may (in its sole and absolute discretion) determine. The Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In the case of any sale of all or any part of the Collateral made on credit or for future delivery, the Collateral so sold may be retained by the Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Collateral Agent shall not incur any liability in the event that any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in the case of any such failure, such Collateral may be sold again upon notice given in accordance with provisions above. At any public (or, to the extent permitted by law, private) sale made pursuant to this Section 5.01, any Secured Party may bid for or purchase for cash, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Guarantor (all such rights being also hereby waived and released to the extent permitted by law), the Collateral or any part thereof offered for sale and such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property in accordance with Section 5.02 hereof without further accountability to any Guarantor therefor. For purposes hereof, a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof; the Collateral Agent shall be free to carry out such sale pursuant to such agreement and no Guarantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Collateral Agent may proceed by a suit or suits at law or in equity to foreclose this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court appointed receiver. Any sale pursuant to the provisions of this Section 5.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610(b) of the New York UCC or its equivalent in other jurisdictions. -23- SECTION 5.02. Application of Proceeds. The Collateral Agent shall promptly apply the proceeds, moneys or balances of any collection or sale of Collateral, as well as any Collateral consisting of cash, as follows: FIRST, to the payment of all costs and expenses incurred by the Administrative Agent and the Collateral Agent in connection with such collection or sale or otherwise in connection with this Agreement, any other Loan Document or any of the Obligations, including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Administrative Agent and the Collateral Agent hereunder or under any other Loan Document on behalf of any Guarantor and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any other Loan Document; SECOND, to the ratable payment of the Obligations, and THIRD, once all Obligations have been paid in full, to the Guarantors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the purchase money by the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof. SECTION 5.03. Grant of License to Use Intellectual Property. Solely for the purpose of enabling the Collateral Agent to exercise rights and remedies under this Agreement at such time as the Collateral Agent shall be lawfully entitled to exercise such rights and remedies, each Guarantor hereby grants to (in the Collateral Agent’s sole discretion) a designee of the Collateral Agent or the Collateral Agent, for the benefit of the Secured Parties, an irrevocable, nonexclusive license (exercisable without payment of royalty or other compensation to any Guarantor) to use, license or sublicense any of the Article 9 Collateral consisting of Intellectual Property now owned or hereafter acquired by such Guarantor, wherever the same may be located, and including, without limitation, in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Collateral Agent may be exercised, at the option of the Collateral Agent, while an Event of Default exists; provided that any license, sublicense or other transaction entered into by the Collateral Agent in accordance herewith shall be binding upon the Guarantors notwithstanding any subsequent cure of an Event of Default. -24- SECTION 5.04. Securities Act, etc. In view of the position of the Guarantors in relation to the Pledged Collateral, or because of other current or future circumstances, a question may arise under the Securities Act of 1933, as now or hereafter in effect, or any similar federal statute hereafter enacted analogous in purpose or effect (such Act and any such similar statute as from time to time in effect being called the “Federal Securities Laws”) with respect to any disposition of the Pledged Collateral permitted hereunder. Each Guarantor understands that compliance with the Federal Securities Laws might very strictly limit the course of conduct of the Collateral Agent if the Collateral Agent were to attempt to dispose of all or any part of the Pledged Collateral, and might also limit the extent to which or the manner in which any subsequent transferee of any Pledged Collateral could dispose of the same. Similarly, there may be other legal restrictions or limitations affecting the Collateral Agent in any attempt to dispose of all or part of the Pledged Collateral under applicable Blue Sky or other state securities laws or similar laws analogous in purpose or effect. Each Guarantor acknowledges and agrees that in light of such restrictions and limitations, the Collateral Agent, in its sole and absolute discretion, (a) may proceed to make such a sale whether or not a registration statement for the purpose of registering such Pledged Collateral or part thereof shall have been filed under the Federal Securities Laws or, to the extent applicable, Blue Sky or other state securities laws and (b) may approach and negotiate with a single potential purchaser to effect such sale. Each Guarantor acknowledges and agrees that any such sale might result in prices and other terms less favorable to the seller than if such sale were a public sale without such restrictions. In the event of any such sale, the Collateral Agent shall incur no responsibility or liability for selling all or any part of the Pledged Collateral at a price that the Collateral Agent, in its sole and absolute discretion, may in good faith deem reasonable under the circumstances, notwithstanding the possibility that a substantially higher price might have been realized if the sale were deferred until after registration as aforesaid or if more than a single purchaser were approached. The provisions of this Section 5.04 will apply notwithstanding the existence of a public or private market upon which the quotations or sales prices may exceed substantially the price at which the Collateral Agent sells. SECTION 5.05. Registration, etc. Each Guarantor agrees that, upon the occurrence and during the continuance of an Event of Default, if for any reason the Collateral Agent desires to sell any of the Pledged Collateral at a public sale, it will, at any time and from time to time, upon the written request of the Collateral Agent, use its commercially reasonable efforts to take or to cause the issuer of such Pledged Collateral to take such action and prepare, distribute and/or file such documents, as are required or advisable in the reasonable opinion of counsel for the Collateral Agent to permit the public sale of such Pledged Collateral. Each Guarantor further agrees to indemnify, defend and hold harmless the Administrative Agent, each other Secured Party, any underwriter and their respective officers, directors, affiliates and controlling persons from and against all loss, liability, expenses, costs of counsel (including reasonable fees and expenses of legal counsel to the Collateral Agent of, and claims (including the costs of investigation) that they may incur insofar as such loss, liability, expense or claim arises out of or is based upon any alleged untrue statement of a material fact contained in any prospectus (or any amendment or supplement thereto) or in any notification or offering circular, or arises out of or is based upon any alleged omission to state a material fact required to be stated therein or necessary to make the statements in any thereof not misleading, except insofar as the same may have been caused by any untrue statement or omission based upon information furnished in writing to such Guarantor or the issuer of such Pledged Collateral by the Collateral Agent or any other Secured Party expressly for use therein. Each Guarantor further agrees, upon such written request referred to above, to use its commercially reasonable efforts to qualify, file or register, or cause the issuer of such Pledged Collateral to qualify, file or register, any of the Pledged Collateral under the Blue Sky or other securities laws of such states as may be reasonably requested by the Collateral Agent and keep effective, or cause to be kept effective, all such qualifications, filings or registrations. Each Guarantor will bear all costs and expenses of carrying out its obligations under this Section 5.05. Each Guarantor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section 5.05 only and that such failure would not be adequately compensable in damages and, therefore, agrees that its agreements contained in this Section 5.05 may be specifically enforced. -25- ARTICLE VI. SECTION 6.01. Indemnity and Subrogation. In addition to all such rights of indemnity and subrogation as the Guarantors may have under applicable law (but subject to Section 6.03), each Guarantor that is a Borrower (a “Specified Borrower”) agrees that (a) in the event a payment shall be made by any Guarantor under this Agreement in respect of any Obligation of such Specified Borrower that has been incurred by it as a Borrower, such Specified Borrower shall indemnify such Guarantor for the full amount of such payment and such Guarantor shall be subrogated to the rights of the person to whom such payment shall have been made to the extent of such payment and (b) in the event any assets of any Guarantor shall be sold pursuant to this Agreement or any other Security Document to satisfy in whole or in part an Obligation of a Specified Borrower that has been incurred by it as a Borrower, such Specified Borrower shall indemnify such Guarantor in an amount equal to the greater of the book value or the fair market value of the assets so sold. SECTION 6.02. Contribution and Subrogation. Each Guarantor (a “Contributing Guarantor”) agrees (subject to Section 6.03) that, in the event a payment shall be made by any other Guarantor hereunder in respect of any Obligation or assets of any other Guarantor shall be sold pursuant to any Security Document to satisfy any Obligation and such other Guarantor (the “Claiming Guarantor”) shall not have been fully indemnified by the Borrower of such Obligation as provided in Section 6.01 or otherwise, the Contributing Guarantor shall indemnify the Claiming Guarantor in an amount equal to the amount of such payment or the greater of the book value or the fair market value of such assets, as applicable, in each case multiplied by a fraction of which the numerator shall be the net worth of such Contributing Guarantor on the date hereof and the denominator shall be the aggregate net worth of all the Guarantors on the date hereof (or, in the case of any Guarantor becoming a party hereto pursuant to Section 7.16, the date of the supplement hereto executed and delivered by such Guarantor). Any Contributing Guarantor making any payment to a Claiming Guarantor pursuant to this Section 6.02 shall be subrogated to the rights of such Claiming Guarantor under Section 6.01 to the extent of such payment. -26- SECTION 6.03. Subordination. (a) Notwithstanding any provision of this Agreement to the contrary, all rights of the Guarantors under Sections 6.01 and 6.02 and all other rights of indemnity, contribution or subrogation of the Guarantor under applicable law or otherwise shall be fully subordinated to the indefeasible payment in full in cash of the Obligations. No failure on the part of any Borrower or any Guarantor to make the payments required by Sections 6.01 and 6.02 (or any other payments required under applicable law or otherwise) shall in any respect limit the obligations and liabilities of any Guarantor with respect to its obligations hereunder, and each Guarantor shall remain liable for the full amount of the obligations of such Guarantor hereunder. (b) Each Guarantor hereby agrees that all Indebtedness and other monetary obligations owed by it to any other Guarantor or any Subsidiary shall be subordinated to the indefeasible payment in full in cash of the Obligations in the manner set forth in Exhibit F to the Credit Agreement. ARTICLE VII. Miscellaneous SECTION 7.01. Notices. All communications and notices hereunder shall (except as otherwise expressly permitted herein) be in writing and given as provided in Section 9.01 of the Credit Agreement. All communications and notices hereunder to any Subsidiary Party shall be given to it in care of the Company, with such notice to be given as provided in Section 9.01 of the Credit Agreement. SECTION 7.02. Security Interest Absolute. All rights of the Collateral Agent hereunder, the Security Interest, the security interest in the Pledged Collateral and all obligations of each Guarantor hereunder shall be absolute and unconditional irrespective of (a) any lack of validity or enforceability of the Credit Agreement, any other Loan Document, any agreement with respect to any of the Obligations or any other agreement or instrument relating to any of the foregoing, (b) any change in the time, manner or place of payment of, or in any other term of, all or any of the Obligations, or any other amendment or waiver of or any consent to any departure from the Credit Agreement, any other Loan Document or any other agreement or instrument, (c) any exchange, release or non-perfection of any Lien on other collateral, or any release or amendment or waiver of or consent under or departure from any guarantee, securing or guaranteeing all or any of the Obligations or (d) any other circumstance that might otherwise constitute a defense available to, or a discharge of, any Guarantor in respect of the Obligations or this Agreement. SECTION 7.03. [Reserved]. -27- SECTION 7.04. Binding Effect; Several Agreement. This Agreement shall become effective as to any party to this Agreement when a counterpart hereof executed on behalf of such party shall have been delivered to the Administrative Agent and a counterpart hereof shall have been executed on behalf of the Collateral Agent, and thereafter shall be binding upon such party and the Collateral Agent and their respective permitted successors and assigns, and shall inure to the benefit of such party, the Collateral Agent and the other Secured Parties and their respective permitted successors and assigns, except that no party shall have the right to assign or transfer its rights or obligations hereunder or any interest herein or in the Collateral (and any such assignment or transfer shall be void) except as expressly contemplated by this Agreement or the Credit Agreement. This Agreement shall be construed as a separate agreement with respect to each party and may be amended, modified, supplemented, waived or released with respect to any party without the approval of any other party and without affecting the obligations of any other party hereunder. SECTION 7.05. Successors and Assigns. Whenever in this Agreement any of the parties hereto is referred to, such reference shall be deemed to include the permitted successors and assigns of such party; and all covenants, promises and agreements by or on behalf of any Guarantor or the Collateral Agent that are contained in this Agreement shall bind and inure to the benefit of their respective permitted successors and assigns. SECTION 7.06. Collateral Agent’s Fees and Expenses; Indemnification. (a) The parties hereto agree that the Collateral Agent shall be entitled to reimbursement of its expenses incurred hereunder as provided in Section 9.05 of the Credit Agreement. (b) Without limitation of its indemnification obligations under the other Loan Documents, each Guarantor jointly and severally agrees to indemnify the Collateral Agent and the other Indemnitees (as defined in Section 9.05 of the Credit Agreement) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including reasonable counsel fees, charges and disbursements, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of, (i) the execution, delivery or performance of this Agreement or any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation of the Transactions and other transactions contemplated hereby, (ii) the use of proceeds of the Loans or the use of any Letter of Credit or (iii) any claim, litigation, investigation or proceeding relating to any of the foregoing, or to the Collateral, whether or not any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses result primarily from the gross negligence or willful misconduct of such Indemnitee (treating for the purposes of this Section 7.06(b) only any Secured Party and its Related Parties as a single Indemnitee). (c) Any such amounts payable as provided hereunder shall be additional Obligations hereunder. The provisions of this Section 7.06 shall remain operative and in full force and effect regardless of the termination of this Agreement or any other Loan Document, the consummation of the transactions contemplated hereby, the repayment of any of the Obligations, the invalidity or unenforceability of any term or provision of this Agreement or any other Loan Document, or any investigation made by or on behalf of the Collateral Agent or any other Secured Party. All amounts due under this Section 7.06 shall be payable on written demand therefor (accompanied by a reasonably detailed computation of the amounts to be paid). -28- SECTION 7.07. Collateral Agent Appointed Attorney-in-Fact. Each Guarantor hereby appoints the Collateral Agent the attorney-in-fact of such Guarantor for the purpose, during the continuance of an Event of Default, of carrying out the provisions of this Agreement and taking any action and executing any instrument that the Collateral Agent may deem necessary or advisable to accomplish the purposes hereof, which appointment is irrevocable and coupled with an interest. Without limiting the generality of the foregoing, the Collateral Agent shall have the right, upon the occurrence and during the continuance of a Noticed Event of Default, with full power of substitution either in the Collateral Agent’s name or in the name of such Guarantor, (a) to receive, endorse, assign or deliver any and all notes, acceptances, checks, drafts, money orders or other evidences of payment relating to the Collateral or any part thereof; (b) to demand, collect, receive payment of, give receipt for and give discharges and releases of all or any of the Collateral; (c) to ask for, demand, sue for, collect, receive and give acquittance for any and all moneys due or to become due under and by virtue of any Collateral; (d) to sign the name of any Guarantor on any invoice or bill of lading relating to any of the Collateral; (e) to send verifications of Accounts to any Account Debtor; (f) to commence and prosecute any and all suits, actions or proceedings at law or in equity in any court of competent jurisdiction to collect or otherwise realize on all or any of the Collateral or to enforce any rights in respect of any Collateral; (g) to settle, compromise, compound, adjust or defend any actions, suits or proceedings relating to all or any of the Collateral; (h) to notify, or to require any Guarantor to notify, Account Debtors to make payment directly to the Collateral Agent; and (i) to use, sell, assign, transfer, pledge, make any agreement with respect to or otherwise deal with all or any of the Collateral, and to do all other acts and things necessary to carry out the purposes of this Agreement, as fully and completely as though the Collateral Agent were the absolute owner of the Collateral for all purposes; provided, that nothing herein contained shall be construed as requiring or obligating the Collateral Agent to make any commitment or to make any inquiry as to the nature or sufficiency of any payment received by the Collateral Agent, or to present or file any claim or notice, or to take any action with respect to the Collateral or any part thereof or the moneys due or to become due in respect thereof or any property covered thereby. The Collateral Agent and the other Secured Parties shall be accountable only for amounts actually received as a result of the exercise of the powers granted to them herein, and neither they nor their officers, directors, employees or agents shall be responsible to any Guarantor for any act or failure to act hereunder, except for their own gross negligence or willful misconduct. SECTION 7.08. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. SECTION 7.09. Waivers; Amendment. -29- (a) No failure or delay by the Administrative Agent, the Collateral Agent, any Issuing Bank or any Lender in exercising any right, power or remedy hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy, or any abandonment or discontinuance of steps to enforce such a right, power or remedy, preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The rights, powers and remedies of the Administrative Agent, the Collateral Agent, any Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights, powers or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 7.09, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or the issuance of a Letter of Credit shall not be construed as a waiver of any Default or Event of Default, regardless of whether the Administrative Agent, the Collateral Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default or Event of Default at the time. No notice or demand on any Loan Party in any case shall entitle any Loan Party to any other or further notice or demand in similar or other circumstances. (b) Neither this Agreement nor any provision hereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by the Collateral Agent and the Loan Party or Loan Parties with respect to which such waiver, amendment or modification is to apply (or, at its election and after the Effective Date, by Holdings on behalf of all such Loan Parties), subject to any consent required in accordance with Section 9.08 of the Credit Agreement. SECTION 7.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 7.10. SECTION 7.11. Severability. In the event any one or more of the provisions contained in this Agreement or in any other Loan Document should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and therein shall not in any way be affected or impaired thereby. The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions. SECTION 7.12. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall constitute an original but all of which when taken together shall constitute but one contract, and shall become effective as provided in Section 7.04. Delivery of an executed counterpart to this Agreement by facsimile transmission shall be as effective as delivery of a manually signed original. -30- SECTION 7.13. Headings. Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and are not to affect the construction of, or to be taken into consideration in interpreting, this Agreement. SECTION 7.14. Jurisdiction; Consent to Service of Process. (a) Each party to this Agreement hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of any New York State court or federal court of the United States of America sitting in New York City, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or any other Loan Documents, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State or, to the extent permitted by law, in such federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right that the Administrative Agent, the Collateral Agent, any Issuing Bank or any Lender may otherwise have to bring any action or proceeding relating to this Agreement or any other Loan Document against any Guarantor, or its properties, in the courts of any jurisdiction. (b) Each party to this Agreement hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or any other Loan Document in any New York State or federal court. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court. SECTION 7.15. Termination or Release. (a) This Agreement, the guarantees made herein, the Security Interest and all other security interests granted hereby shall terminate on the first date when all the Obligations (other than contingent indemnity and similar obligations with respect to which no amounts are then owing) have been indefeasibly paid in full in cash and the Lenders have no further commitment to lend under the Credit Agreement, the Revolving L/C Exposure and CL Exposure each has been reduced to zero and each Issuing Bank has no further obligations to issue Letters of Credit under the Credit Agreement (or each Issuing Bank has received cash or other collateral satisfactory to it covering such exposure and Letters of Credit). (b) A Subsidiary Party shall automatically be released from its obligations hereunder and the security interests in the Collateral of such Subsidiary Party shall be automatically released upon the consummation of any transaction permitted by the Credit Agreement as a result of which such Subsidiary Party ceases to be a Subsidiary of the Company; provided that the Required Lenders shall have consented to such transaction (to the extent such consent is required by the Credit Agreement) and the terms of such consent did not provide otherwise. -31- (c) Upon any Guarantor becoming an Unrestricted Subsidiary, such Unrestricted Subsidiary shall automatically be released from its obligations hereunder and the security interests in the Collateral of such Unrestricted Subsidiary shall be automatically released. (d) Upon any Permitted Receivables Financing permitted by the Credit Agreement, the Equity Interests of a Special Purpose Receivables Subsidiary shall be automatically released from the security interest in such Equity Interests granted hereby. (e) Upon any sale or other transfer by any Guarantor of any Collateral that is permitted under the Credit Agreement to any person that is not a Guarantor, or upon the effectiveness of any written consent to the release of the security interest granted hereby in any Collateral pursuant to Section 9.08 of the Credit Agreement, the security interest in such Collateral shall be automatically released. (f) In connection with any termination or release pursuant to paragraph (a), (b), (c), (d) or (e) of this Section 7.15, the Collateral Agent shall execute and deliver to any Guarantor, at such Guarantor’s expense, all documents that such Guarantor shall reasonably request to evidence such termination or release. Any execution and delivery of documents pursuant to this Section 7.15 shall be without recourse to or warranty by the Collateral Agent. SECTION 7.16. Additional Parties. On the date occurring after the Effective Date on which a Person first becomes a Domestic Subsidiary, such Person shall, to the extent required by Section 5.10 of the Credit Agreement, become a party hereto as a Guarantor. Upon execution and delivery by the Collateral Agent and any such Person of a Supplement, such Person shall become a Guarantor hereunder with the same force and effect as if originally named as a Guarantor herein. The execution and delivery of a Supplement shall not require the consent of any other party to this Agreement. The rights and obligations of each party to this Agreement shall remain in full force and effect notwithstanding the addition of any new party to this Agreement. SECTION 7.17. Right of Set-off. Each Lender and each Issuing Bank is hereby authorized at any time and from time to time, to the fullest extent permitted by law, upon any amount becoming due and payable by any Guarantor hereunder (whether at the stated maturity, by acceleration or otherwise) after the expiration of any cure or grace periods, to set off and apply against such amount any and all deposits (general or special, time or demand, provisional or final) at any time held and other indebtedness at any time owing by such Lender or such Issuing Bank to or for the credit or the account of any party to this Agreement, matured or unmatured, irrespective of whether or not such Lender or such Issuing Bank shall have made any demand under this Agreement. The rights of each Lender under this Section 7.17 are in addition to other rights and remedies (including other rights of set off) that such Lender or such Issuing Bank may have. -32- IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of CELANESE HOLDINGS LLC By: /s/ James E. Shields Name: James E. Shields Title: Vice President and Treasurer CELANESE US HOLDINGS LLC By: CELANESE AMERICAS CORPORATION By: BCP CRYSTAL US 2 L.L.C. By: CELANESE ACETATE LLC By: CELANESE CHEMICALS, INC. By: CELANESE HOLDINGS, INC. By: CELANESE INTERNATIONAL CORPORATION By: CELANESE LTD. (Texas) By: Celanese International Corporation, General Partner of Celanese Ltd. CELANESE OVERSEAS CORPORATION By: CELANESE PIPE LINE COMPANY (Texas) By: CELTRAN, INC. By: CNA FUNDING LLC By: CNA HOLDINGS, INC. By: FKAT LLC By: KEP AMERICAS ENGINEERING PLASTICS, LLC By: TICONA LLC By: TICONA POLYMERS, INC. By: CELANESE FIBERS OPERATIONS, LTD By: /s/ Christopher Gannon Name: Christopher Gannon Title: Vice President and Secretary TICONA FORTRON INC. By: Name: Christopher Gannon TICONA GUR SERVICES, INC. By: Name: Christopher Gannon as Collateral Agent By: /s/ Evelyn Thierry Name: Evelyn Thierry Title: Vice President By: /s/ Omayra Laucella Name: Omayra Laucella Title: Vice President Schedule I to the Guarantee and Collateral Agreement Subsidiary Parties BCP Crystal US 2 LLC Celanese Acetate LLC Celanese Chemicals, Inc. Celanese Fibers Operations, Ltd. Celanese Holdings, Inc. Celanese International Corporation Celanese Ltd. Celanese Overseas Corporation Celanese Pipe Line Company Celtran, Inc. CNA Funding LLC CNA Holdings, Inc. FKAT LLC KEP America Engineering Plastics, LLC Ticona Fortron Inc. Ticona GUR Services, Inc. Ticona LLC Ticona Polymers, Inc. Schedule II to the Guarantee and Collateral Agreement EQUITY INTERESTS & DEBT SECURITIES See Attached Issuer Holder % Required to be Pledged (Number of Shares Pledged) Jurisdiction Notes Celanese US Holdings LLC Celanese Holdings LLC 100% Delaware No Certificate Celanese Americas Corp Celanese US Holdings LLC 100% (3,000,000-A) (7,501,130) Delaware Celanese US Holdings LLC 100% Delaware No Certificate Celanese Caylux Holdings Ltd Celanese US Holdings LLC 66% Luxembourg No Certificate BCP Crystal (Cayman) Ltd 1 Celanese US Holdings LLC 66% Cayman No Certificate Celanese (China) Holding Co. Ltd. Celanese US Holdings LLC 66% China No Certificate Celanese Caylux Holdings Luxembourg SCA Celanese U.S. Holdings LLC 66% Luxembourg No Certificate CNA Holdings Inc. Celanese Americas Corpo. 100% (10,000) Delaware Celanese Emulsions Ltd Celanese Americas Corpo. 66% United Kingdom No Certificate Celanese Emulsions BV Celanese Americas Corpo. 66% Netherlands No Certificate Celanese Holdings Inc. Celanese Holdings Inc. 100% (1) Delaware Ticona LLC Celanese Holdings Inc 100% Delaware No Certificate Celanese Advanced Materials, Inc. Celanese Holdings Inc 100% [US] FKAT LLC Celanese Holdings Inc 100% Delaware No Certificate Grupo Celanese SA CNA Holdings Inc., Celanese Americas Corp [66]% (419,934,930)/[11.61]% (71,031,079) Mexico Celanese Oversees Corporation CNA Holdings Inc. 100% (2,500) Delaware KEP America Engineering Plasticas, LLC CNA Holdings Inc. 100% Delaware No Certificate Ticona Fortron, Inc. CNA Holdings Inc. 100% Delaware Elwood Insurance Ltd. CNA Holdings Inc. 66% (100,750) Bermuda Celanese Acetate LLC CNA Holdings Inc. 100% Delaware No Certificate Celanese Venezuela S.A. CNA Holdings Inc. 66% Venezuela No Certificate Celanese do Brazil Ltda CAN Holdings Inc., Celanese International Corp. 66%11.1% Brazil No Certificate Celanese International Corporation Celanese Holdings Inc. Delaware Celanese Holdings Inc. Brazil Celanese Chemicals Inc. Celanese Holdings Inc. Delaware US Pet Film, Inc. Celanese Holdings Inc. Delaware Tendora Tercera de Toluca s. de C.V. FKAT LLC 66% Mexico No Certificate Fortron Industries LLC Ticone Fortron Inc. 100% [US] No Certificate Celanese SA Celanese Acetate LLC 66% (64,999) Amcel International Co. Inc. Celanese Acetate LLC 100% (12,000) Celanese Fibers Operations LTD Celanese Acetate LLC 100% (100) Celanese Far East Ltd Celanese Acetate LLC 66% (1,299) Celanese Argentine S.A. Celanese International Corporation; Celanese Chemicals Inc. 65% (3,900/6,000) / 65% (3,900/6,000) Argentina Celtran, Inc. Celanese International Corporation 100% (1,000) Delaware Celanese Japan Limited Celanese International Corporation 66% Japan No Certificate Celanese Korea Chusilk Hoesa Celanese International Corporation 66% Korea No Certificate Celanese, Ltd. 100% Texas No Certificate Celanese Pipeline Company Celanese Chemicals Inc. 100%(500) Texas 177461 Canada Inc. Celanese Chemicals Inc. 66%(2,210) Canada Celanese Chemicals Inc. Delaware Ticona Services Inc. Delaware CNA Funding LLC 100% Delaware No Certificate HNA Acquisition Corp. Celanese Overseas Corporation [ ]% (405,315,793-A) & (405,315,793 – B) (6,696725 – A) & (6,696,725 – B) Canada EOCOM Inc CNA Holdings Inc. 100% (10) Delaware Ticona Fortron Hoechst Celanese Corporation Delaware Tincona Polymers Finco, Inc. Delaware Ticona Celstran, Inc. Hoechst Celanese Corporation Celanese Engineering Resins, Inc. 100% (2995,203), (186,711), (2,661), (34,707), (317,406), (15,393) Minnesota This entity is now Ticona Polymers Inc. Global Intercompany Note 100% **Bold text indicates stock certificates already in the possession of the Collateral Agent. Schedule III to Guarantee and Collateral Agreement COPYRIGHTS OWNED BY CELANESE ACETATE LLC Any and all copyrightable works owned by CELANESE ACETATE LLC, including without limitation, any and all computer software programs. GRANTOR TITLE REGISTRATION NO. Celanese Acetate, LLC SmokeSignals, the science of cigarette filtration. TX 4-987-849 Celanese Acetate, LLC Complete textile glossary. TX 5-229-799 Schedule III to Guarantee and Collateral Agreement COPYRIGHTS OWNED BY CNA HOLDINGS, INC. Any and all copyrightable works owned by CNA HOLDINGS, INC. (f/k/a CELANESE CORPORATION), including without limitation, any and all computer software programs. GRANTOR TITLE REGISTRATION NO. Beginner’s guide to the universe of the VAX. TX 2-013-755 CNA Holdings, Inc Blackwell data base language I. TXu 37-712 CNA Holdings, Inc Graphics productivity option program description/operations manual. TX 1-115-485 CNA Holdings, Inc Interactive graphics. TXu 77-540 CNA Holdings, Inc Text of computer program. TXu 242-566 CNA Holdings, Inc The Bear fact is safety is no accident! VAu 29-310 CNA Holdings, Inc Celanese meridian award. VA 183-420 CNA Holdings, Inc Save your breath. PAu 355-191 CNA Holdings, Inc Text productivity option. TXu 99-056 Schedule III to Guarantee and Collateral Agreement COPYRIGHTS OWNED BY CELANESE LTD. Any and all copyrightable works owned by CELANESE LTD., including without Grantor Title Registration No. Celanese, Ltd. HON monitoring system user’s manual: environmental data management system: HONMON release 2.1.1. TXu 893-997 Celanese, Ltd. HON monitoring program developer’s notes – Environmental data management system HONMON: release 2.1.1. TXu 894-561 Celanese, Ltd. HON monitoring system software. TXu 911-508 Schedule III to Guarantee and Collateral Agreement Any and all copyrightable works owned by CNA HOLDINGS, INC., including without Grantor Title Registration No. The Heat Stress Dragon isn’t a fantasy, it’s a killer TX-3-316-164 CNA Holdings, Inc DEHSA recognition, HCC quality. VAu 231-899 CNA Holdings, Inc Human resources development. VAu 247-845 CNA Holdings, Inc PCR logo. VAu 315-825 CNA Holdings, Inc [Protecting our planet]. VA 406-655 CNA Holdings, Inc TX 3-021-226 CNA Holdings, Inc Material safety data sheet MSDS imaging tracking system. TXu 661-829 CNA Holdings, Inc Cigarette filter design. TXu 521-623 CNA Holdings, Inc Tow selection program for cigarette filter design. TXu 598-683 CNA Holdings, Inc Cigarette filter design, version 2. TXu 585-597 CNA Holdings, Inc S core. VA 813-789 CNA Holdings, Inc Microporous hollow fiber Module-Degas design, version 1.1. TXu 703-656 CNA Holdings, Inc Statistical process control for rod making: text of computer program. TXu 565-370 CNA Holdings, Inc Microporous hollow fiber module-Degas design: version 3.0. TXu 733-523 CNA Holdings, Inc Hoechst Celanese Corporation strategic planning guide. TXu 570-360 CNA Holdings, Inc Testing engineering plastics. PA 517-218 CNA Holdings, Inc Cigarette filter rodmaking training and troubleshooting computer software program, KDF2/AF2: version 1.0. TXu 738-425 CNA Holdings, Inc Pillow ticking fabric, No. 1. RE 629-234 Schedule III to Guarantee and Collateral Agreement COPYRIGHTS OWNED BY TICONA POLYMERS, INC. Any and all copyrightable works owned by TICONA POLYMERS, INC., including without limitation, any and all computer software programs. Grantor Title Registration No. 1999 Pentex Binder TXu1-142-301 Schedule III to Guarantee and Collateral Agreement PATENTS OWNED BY TICONA LLC U.S. Patent Registrations & Applications TITLE GRANTOR NUMBER PROCESS FOR PREPARING MOLDED POROUS ARTICLES… Ticona LLC 10/640,830 Still pending POLYACETALS WITH IMPROVED RESISTANCE (Now patented)… Ticona LLC 6,974,849 PROCESS FOR PRODUCING AMORPHOUS ANISOTROPIC MELT-FORMING POLYMERS HAVING A HIGH DEGREE OF STRETCHABILITY Ticona LLC 6,222,000 STRETCHABLE POLYMERS AND SHAPED ARTICLES PRODUCED BY SAME Ticona LLC 6,294,640 STABILIZED RESIN COMPOSITIONS Ticona LLC 6,696,510 STRETCHABLE LIQUID CRYSTAL POLYMER COMPOSITION Ticona LLC 6,666,990 ANISOTROPIC MELT-FORMING POLYMERS HAVING A HIGH DEGREE OF STRETCHABILITY Ticona LLC 6,514,611 POLYARYLENE SULFIDE RESIN COMPOSITION Co-owned by Ticona LLC and Polyplastics Co., Ltd. 5,185,392 POLYETHYLENE RESIN AND POROUS ARTICLES MADE THEREFROM Ticona LLC 60/578,005 METHODS OF MAKING SPUNBONDED FABRICS FROM BLENDS OF POLYPHENYLENE SULFIDE AND A POLYOLEFIN Ticona LLC 10/858,392 METHOD FOR MAKING ARTICLES BY COLD COMPACTION MOLDING AND THE MOLDED ARTICLES PREPARED THEREBY Ticona LLC 10/672,054 FUEL CONTAINER HAVING CONTIGUOUS UNBONDED POLYACETAL/POLYOLEFIN LAYERS Ticona LLC 10/776,396 HIGH GLOSS PET MOLDING COMPOSITION Ticona LLC 10/886,733 PREPARED THEREBY Ticona LLC 6,846,869 POLYACETALS WITH IMPROVED RESISTANCE TO BLEACH Ticona LLC 6,974,849 POLYACETAL RESIN COMPOSITION Ticona LLC 10/573824 LONG-FIBER-REINFORCED POLYOLEFIN STRUCTURE, PROCESS FOR ITS PRODUCTION, AND MOLDINGS PRODUCED THEREFROM Ticona LLC 60/823527 METHOD OF MEASURING FIBER LENGTH FOR LONG FIBER REINFORCED THERMOPLASTIC COMPOSITES Ticona LLC 60/825200 IMPROVED FUEL BARRIER IMPACT MODIFIED PBT FOR FUEL TANKS Ticona LLC 11/053245 POLYETHER ETHER KETONE / POLYPHENYLENE SULFIDE BLEND Ticona LLC US06/41196 LOW FUEL-PERMEABLE THERMOPLASTIC VESSELS BASED ON POLYOXYMETHEYLENE Ticona LLC 60/718053 Ticona LLC 11/596741 ELECTRICALLY CONDUCTIVE RESIN COMPOUNDS BASED ON POLYOXYMETHYLENE AND HIGHLY STRUCTURED CARBON BLACK Ticona LLC 11/393322 STRUCTURED CARBON BLACK Ticona LLC 11/394396 HIGH-STRENGTH MELTBLOWN POLYESTER WEBS Ticona LLC 11/395470 Schedule III to Guarantee and Collateral Agreement PATENTS OWNED BY CELANESE ACETATE LLC 1. Grantor Title Registered Owner Registration Number Celanese Acetate LLC METHOD AND APPARATUS FOR MAKING AN ABSORBENT COMPOSITE Celanese Acetate LLC 10/672,674 Celanese Acetate LLC Celanese Acetate LLC 7,076,848 Celanese Acetate LLC Celanese Acetate LLC 7,181,817 Celanese Acetate LLC Celanese Acetate LLC 7,103,946 Celanese Acetate LLC Celanese Acetate LLC 6,983,520 Celanese Acetate LLC Celanese Acetate LLC 7,107,659 Celanese Acetate LLC NONWOVEN ABSORBENT MATERIALS MADE WITH CELLULOSE ESTER CONTAINING BICOMPONENT FIBERS Celanese Acetate LLC 7,081,423 Celanese Acetate LLC LOCALIZED LIQUID ADDITIVE APPLICATOR SYSTEM FOR CONTINUOUS CYLINDRICAL PRODUCT Celanese Acetate LLC 4,752,348 Celanese Acetate LLC METHOD AND DEVICE FOR CONTROL OF BY-PRODUCTS FROM CIGARETTE SMOKE Celanese Acetate LLC 4,811,745 Celanese Acetate LLC WATER SOLUBLE CELLULOSE ACETATE MICROSPHERES Celanese Acetate LLC 4,888,420 Celanese Acetate LLC FILTER FOR A SMOKING ARTICLE CONTAINING A FLAVORED HOLLOW FIBER Celanese Acetate LLC 4,971,078 Celanese Acetate LLC WATER SOLUBLE CELLULOSE ACETATE COMPOSITION HAVING IMPROVED PROCESSABILITY AND TENSILE PROPERTIES Celanese Acetate LLC 4,983,730 Celanese Acetate LLC NONWOVEN FIBROUS WEB FOR TOBACCO FILTER Celanese Acetate LLC 5,022,964 Celanese Acetate LLC CELLULOSE ESTER MICROPARTICLES AND PROCESS FOR MAKING THE SAME Celanese Acetate LLC 5,047,180 Celanese Acetate LLC Celanese Acetate LLC 5,064,949 Celanese Acetate LLC PROCESS FOR THE PRODUCTION OF CELLULOSE ESTER FIBRETS Celanese Acetate LLC 5,175,276 Celanese Acetate LLC POLYMER BLEND COMPOSED OF STARCHACETATE AND CELLULOSE ACETATE APPLICABLE TO FORM FIBERS, FILMS, PLASTIC Celanese Acetate LLC 5,446,140 Celanese Acetate LLC RECYCLING CELLULOSE ESTERS FROM THE WASTE FROM CIGARETTE MANUFACTURE Celanese Acetate LLC 5,504,119 Celanese Acetate LLC Celanese Acetate LLC 5,507,304 Celanese Acetate LLC THERMAL BONDING OF WET CELLULOSE BASED FIBERS Celanese Acetate LLC 6,224,811 Celanese Acetate LLC AIR OPENING JET APPARATUS Celanese Acetate LLC 6,253,431 Celanese Acetate LLC RECOVERY OF VOLATILE ORGANIC COMPOUNDS FROM CARBON ADSORPTION BEDS Celanese Acetate LLC 6,458,185 Celanese Acetate LLC APPARATUS, METHOD AND SYSTEM FOR AIR OPENING OF TEXTILE TOW AND OPEN TEXTILE TOW PRODUCED THEREFROM Celanese Acetate LLC 6,543,106 Celanese Acetate LLC A STUFFER BOX CRIMPER AND A METHOD FOR CRIMPING Celanese Acetate LLC 7,152,288 Celanese Acetate LLC CELLULOSE ACETATE TOW AND METHOD OF MAKING SAME – IC ROLLERS Celanese Acetate LLC 10/876942 Celanese Acetate LLC CELLULOSE ACETATE TOW AND METHOD OF MAKING SAME – CERAMIC ROLLERS Celanese Acetate LLC 10/877800 Celanese Acetate LLC CELLULOSE ACETATE TOW AND METHOD OF MAKING SAME - STEAM Celanese Acetate LLC 10/877948 Celanese Acetate LLC CELLULOSE ACETATE TOW AND METHOD OF MAKING SAME – EDGE LUB Celanese Acetate LLC 10/877788 Celanese Acetate LLC CELLULOSE ACETATE TOW AND METHOD OF MAKING SAME – PLASTICIZER Celanese Acetate LLC 10/877799 Celanese Acetate LLC CELLULOSE ACETATE TOW AND METHOD OF MAKING SAME - COMBO Celanese Acetate LLC 10/877947 Celanese Acetate LLC CELLULOSE ACETATE TOW AND METHOD OF MAKING SAME - PRODUCT Celanese Acetate LLC 6,924,029 Celanese Acetate LLC APPARATUS FOR TOW OPENING Celanese Acetate LLC 10/941716 Celanese Acetate LLC APPARATUS FOR TOW OPENING Celanese Acetate LLC 10/941,716 Celanese Acetate LLC A FIBER BALE AND METHOD OF PRODUCING SAME Celanese Acetate LLC 11/125,001 Celanese Acetate LLC PREPARATION OF WOOD PULPS WITH CAUSTIC PRETREATMENT FOR USE IN THE MANUFACTURE OF CELLULOSE ACETATES AND OTHER… Celanese Acetate LLC 11/155,133 Celanese Acetate LLC MANUFACTURE OF CELLULSOE ESTER FILAMENTS; LUBRICATION IN THE SPINNING CABINET Celanese Acetate LLC 11/388,455 Celanese Acetate LLC MANUFACTURE OF CELLULOSE ESTERS; RECYCLE OF CAUSTIC AND/OR ACID FROM PRE-TREATMENT OF PULP Celanese Acetate LLC 11/332,741 Celanese Acetate LLC STARCH ESTERS, METHODS OF MAKING SAME, AND ARTICLES MADE THEREFROM Celanese Acetate LLC 11/611,992 Celanese Acetate LLC A METHOD OF MAKING CELLULOSE ESTER POLYMER AND PRETREATING CELLULOSE FOR THE MANUFACTURE OF CELLULOSE ESTER POLYMER Celanese Acetate LLC 11/566,250 Celanese Acetate LLC WOUND CARE PRODUCT MADE FROM BULKED FILAMENT TOW Celanese Acetate LLC 11/559,507 Celanese Acetate LLC METHOD FOR PRODUCING A FIBER BALE Celanese Acetate LLC 60/892,959 Grantor Title Registered Owner Registration Number Celanese Acetate LLC Celanese Acetate LLC 10/672,674 Celanese Acetate LLC Celanese Acetate LLC 7,076,848 Celanese Acetate LLC Celanese Acetate LLC 7,181,817 Celanese Acetate LLC Celanese Acetate LLC 7,103,946 Celanese Acetate LLC Celanese Acetate LLC 6,983,520 Celanese Acetate LLC Celanese Acetate LLC 7,107,659 Celanese Acetate LLC FIBERS Celanese Acetate LLC 7,081,423 Celanese Acetate LLC Celanese Acetate LLC 4,752,348 Celanese Acetate LLC Celanese Acetate LLC 4,811,745 Celanese Acetate LLC Celanese Acetate LLC 4,888,420 Celanese Acetate LLC Celanese Acetate LLC 4,971,078 Celanese Acetate LLC TENSILE PROPERTIES Celanese Acetate LLC 4,983,730 Celanese Acetate LLC Celanese Acetate LLC 5,022,964 Celanese Acetate LLC Celanese Acetate LLC 5,047,180 Celanese Acetate LLC Celanese Acetate LLC 5,064,949 Celanese Acetate LLC Celanese Acetate LLC 5,175,276 Celanese Acetate LLC Celanese Acetate LLC 5,446,140 Celanese Acetate LLC Celanese Acetate LLC 5,504,119 Celanese Acetate LLC Celanese Acetate LLC 5,507,304 Celanese Acetate LLC Celanese Acetate LLC 6,224,811 Celanese Acetate LLC AIR OPENING JET APPARATUS Celanese Acetate LLC 6,253,431 Celanese Acetate LLC Celanese Acetate LLC 6,458,185 Celanese Acetate LLC PRODUCED THEREFROM Celanese Acetate LLC 6,543,106 Celanese Acetate LLC Celanese Acetate LLC 7,152,288 Celanese Acetate LLC Celanese Acetate LLC 10/876942 Celanese Acetate LLC Celanese Acetate LLC 10/877800 Celanese Acetate LLC Celanese Acetate LLC 10/877948 Celanese Acetate LLC Celanese Acetate LLC 10/877788 Celanese Acetate LLC Celanese Acetate LLC 10/877799 Celanese Acetate LLC Celanese Acetate LLC 10/877947 Celanese Acetate LLC Celanese Acetate LLC 6,924,029 Celanese Acetate LLC APPARATUS FOR TOW OPENING Celanese Acetate LLC 10/941716 Celanese Acetate LLC APPARATUS FOR TOW OPENING Celanese Acetate LLC 10/941,716 Celanese Acetate LLC Celanese Acetate LLC 11/125,001 Celanese Acetate LLC Celanese Acetate LLC 11/155,133 Celanese Acetate LLC Celanese Acetate LLC 11/388,455 Celanese Acetate LLC Celanese Acetate LLC 11/332,741 Celanese Acetate LLC Celanese Acetate LLC 11/611,992 Celanese Acetate LLC Celanese Acetate LLC 11/566,250 Celanese Acetate LLC Celanese Acetate LLC 11/559,507 Celanese Acetate LLC Celanese Acetate LLC 60/892,959 Schedule III to Guarantee and Collateral Agreement PATENTS OWNED BY CELANESE INTERNATIONAL CORPORATION TITLE GRANTOR REGISTRATION NUMBER WAXLESS POLYVINYL ALCOHOL SIZE COMPOSITION Celanese International Corporation 4,845,140 HYDROFORMYLATION OF AUQUEOUS FORMALDEHYDE USING A Celanese International Corporation 4,847,423 COPOLYMERS OF VINYL ALCOHOL AND FLUORINE-CONTAINING ACRYLATE MONOMERS Celanese International Corporation 4,851,472 PROCESS FOR MAKING 1,3-DIOLS FROM EPOXIDES Celanese International Corporation 4,873,379 PROCESS FOR REGENERATING A CARBONYLATION CATALYST SOLUTION T Celanese International Corporation 4,894,477 ADDITION OF HYDROGEN TO CARBON MONOXIDE FEED GAS IN PRODUCIN Celanese International Corporation 4,994,608 METHANOL CARBONYLATION PROCESS Celanese International Corporation 5,001,259 METHANOL CARBONYLATION PROCESS Celanese International Corporation 5,026,908 EXTRUDABLE POLYVINYL ALCOHOL COMPOSITIONS CONTAINING THERMOPLASTIC POLYURETHANE Celanese International Corporation 5,028,648 METHOD FOR MAKING EXTRUDABLE POLYVINYL ALCOHOL COMPOSITIONS Celanese International Corporation 5,051,222 Celanese International Corporation 5,053,562 POLYVINYL ALCOHOL RESIN SOLUBLE IN HIGH SOLIDS AQUEOUS PAPER COATING COMPOSITIONS WITHOUT EXTERNAL HEATING Celanese International Corporation 5,057,570 EXTRUDABLE POLYVINYL ALCOHOL COMPOSITIONS Celanese International Corporation 5,137,969 METHANOL CARBONYLATION PROCESS Celanese International Corporation 5,144,068 PROCESS FOR ACETIC ACID PREPARATION & HETEROGENOUS CATALYST Celanese International Corporation 5,155,261 PURIFICATION OF ACETIC ACID WITH OZONE Celanese International Corporation 5,155,265 Celanese International Corporation 5,155,266 Celanese International Corporation 5,202,481 EXTRUDABLE POLYVINYL ALCOHOL COMPOSITIONS CONTAINING THERMOPLASTIC POLYETHYLENE OXIDE Celanese International Corporation 5,206,278 POLYMERIC CARBONYLATION CATALYST SYSTEM Celanese International Corporation 5,281,359 SEPARATION OF AZEOTROPES IN POLY(VINYL ALCOHOL) PROCESS Celanese International Corporation 5,292,804 REMOVAL OF HALIDE IMPURITIES FROM ORGANIC LIQUIDS Celanese International Corporation 5,300,685 VINYL ACETATE CATALYST PREPARATION METHOD Celanese International Corporation 5,314,858 Celanese International Corporation 5,332,710 MODIFIED POLYVINYL ALCOHOL AND A SOLID STATE PROCESS FOR MODIFICATION OF POLYVINYL ALCOHOL BY FREE RADICAL GRAFTING Celanese International Corporation 5,340,874 EXTRUDABLE POLYVINYL ALCOHOL COMPOSITIONS CONTAINING POLYESTER-POLYETHER BLOCK COPOLYMERS Celanese International Corporation 5,349,000 SOLID STATE PROCESS FOR MODIFICATION OF POLYVINYL ALCOHOL USING MICHAEL-TYPE ADDITION Celanese International Corporation 5,350,801 WATER SOLUBLE MULTILAYER FILM FOR PACKAGING ALKALINE MATERIALS Celanese International Corporation 5,362,532 EXTRUDABLE POLYVINYL ALCOHOL COMPOSITIONS CONTAINING MODIFIEDSTARCHES Celanese International Corporation 5,362,778 REMOVAL OF CARBONYL IMPURITIES FROM A CARBONYLATION PROCESS Celanese International Corporation 5,371,286 POLYMERIC CARBONYLATION CATALYST SYSTEM Celanese International Corporation 5,466,874 SURFACE SIZING COMPOSITION AND METHOD Celanese International Corporation 5,484,509 RECOVERY OF ACETIC ACID FROM DILUTE AQUEOUS STREAMS FORMED DURING A CARBONYLATION PROCESS Celanese International Corporation 5,599,976 TWO STEP GOLD ADDITION METHOD FOR PREPARING A VINYL ACETATE Celanese International Corporation 5,691,267 PALLADIUM-GOLD CATALYST FOR VINYL ACETATE PRODUCTION Celanese International Corporation 5,693,586 HETEROGENEOUS BIMETALLIC PALLADIUM-GOLD CATALYST Celanese International Corporation 5,700,753 HONEYCOMB CATALYST FOR VINYL ACETATE SYNTHESIS Celanese International Corporation 5,705,679 PROCESS FOR MANUFACTURING POLYVINYL ALCOHOL POLYMERS CONTAINING ACETOACETIC ESTER GROUPS Celanese International Corporation 5,719,231 PROCESS FOR IMPROVING PRODUCTIVITY OF A CARBONYLATION CATALYST SOLUTION BY REMOVING CORROSION METALS Celanese International Corporation 5,731,252 VINYL ACETATE PROCESS UTILIZING A PALLADIUM-GOLD-COPPER CATALYST Celanese International Corporation 5,731,457 HYDROLYSIS OF POLYVINYL ALKANOATES Celanese International Corporation 5,753,753 REMOVAL OF CARBONYLATION IMPURITIES FROM A CARBONYLATION PROCESS STREAM Celanese International Corporation 5,783,731 Celanese International Corporation 5,854,171 VINYL ACETATE CATALYST COMPRISING PALLADIUM, GOLD, AND ANY OF CERTAIN THIRD METALS Celanese International Corporation 5,859,287 ADDITION OF AMINE TO IMPROVE PARAFORMALDEHYDE Celanese International Corporation 5,898,087 VINYL ACETATE CATALYST COMPRISING METALLIC PALLADIUM AND GOLD, AND CUPRIC ACETATE Celanese International Corporation 5,948,724 VINYL ACETATE CATALYST COMPRISING PALLADIUM AND GOLD ON A COPPER CONTAINING SUPPORT Celanese International Corporation 5,968,869 Production of vinyl acetate in a catalytic reactor equipped with filter and distribution bed Celanese International Corporation 6,013,834 Vinyl acetate catalyst comprising metallic palladium, gold and copper supported on a carrier and prepared with potassium aurate Celanese International Corporation 6,015,769 Vinyl acetate catalyst prepared with potassium aurate and comprising metallic palladium and gold on a carrier precoated with copper Celanese International Corporation 6,017,847 Celanese International Corporation 6,034,030 CONTROL SYSTEM FOR MULTI-PUMP OPERATION Celanese International Corporation 6,045,332 NON YELLOWING, THERMALLY STABLE POLYVINYL ALCOHOL Celanese International Corporation 6,046,272 A CONTINUOUS PROCESS FOR THE PREPARATION OF POLY(VINYL ACETATE) FOR POLY(VINYL ALCOHOL) PRODUCTION Celanese International Corporation 6,054,530 VINYL ACETATE CATALYST COMPRISING PALLADIUM, GOLD, COPPER, ....FOURTH METAL Celanese International Corporation 6,057,260 Celanese International Corporation 6,072,078 PIPERIDONE FUNCTIONALIZED PLY(VINYL ALCOHOL) Celanese International Corporation 6,096,826 TREATMENT OF A COMPOSITION COMPRISING A TRIMETHYLOLALKANE BIS-MONOLINEAR FORMAL Celanese International Corporation 6,096,905 PREPARATION OF HIGH SOLIDS POLY(VINYL ALCOHOL)/WATER SOLUTIONS IN A SINGLE SCREW EXTRUDER Celanese International Corporation 6,106,756 PROCESS FOR PRODUCING AMINE FUNCTIONAL DERIVATIVES OF POLY(VINYL ALCOHOL) Celanese International Corporation 6,107,401 SUPPORT Celanese International Corporation 6,107,514 Latex Composition Containing a Trimethylolalkane Celanese International Corporation 6,110,998 Process of Recovering Methyl Ethyl Ketone from an Aqueous Mixture Celanese International Corporation 6,121,497 REMOVAL OF ACETALDEHYDE FROM A CARBONYLATION PROCESS STREAM Celanese International Corporation 6,143,930 ADDITION OF IRIDIUM TO THE RHODIUM/INORGANIC IODIDE CATALYST SYSTEM Celanese International Corporation 6,211,405 Silver or Mercury exchanged macroporous organofunctional polysiloxane resins Celanese International Corporation 6,211,408 Method of removing organic iodides from organic media Celanese International Corporation 6,225,498 Process for electrochemical oxidation of an aldehyde to an ester Celanese International Corporation 6,251,256 ACETATE Celanese International Corporation 6,274,531 Process for recovering y-butyrolactone from a mixture of heavy organics Celanese International Corporation 6,299,736 VINYL ACETATE CATALYST COMPRISING METALLIC PALLADIUM AND GOLD AND PREPARED UTILIZING SONICATION Celanese International Corporation 6,303,537 RHODIUM/INORGANIC IODIDE CATALYST SYSTEM FOR METHANOL CARBONYLATION PROCESS WITH IMPROVED IMPURITY PROFILE (H2PP appln) Celanese International Corporation 6,303,813 Celanese International Corporation 6,316,679 RHODIUM / INORGANIC IODIDE CATALYST SYSTEM FOR METHANOL CARBONYLATION PROCESS WITH IMPROVED IMPURITY PROFILE Celanese International Corporation 6,323,364 Celanese International Corporation 6,339,171 INK JET PAPER COATINGS CONTAINING AMINE FUNCTIONAL MONOMER GRAFTED POLY(VINYL ALCOHOL) Celanese International Corporation 6,348,256 Vinyl acetate catalyst comprising metallic palladium and gold prepared with potassium aurate. Celanese International Corporation 6,350,900 SULFONATE-TERMINATED OLIGOMERS OF VINYL ESTERS AND THEIR VINYL ALCOHOL OLIGOMERS DERIVATIVES Celanese International Corporation 6,391,992 ETHYLENE RECOVERY SYSTEM Celanese International Corporation 6,410,817 MULTIFUNCTIONAL POLY(VINYL ALCOHOL) BINDER FOR FINE PARTICLE SIZE CALCIUM CARBONATE PIGMENT Celanese International Corporation 6,414,065 CARBONATE PIGMENT Celanese International Corporation 6,441,076 Continuous Process for Production of Carboxylic Acid Esters of Alkylene Glycol Monoalkyl Ethers Celanese International Corporation 6,444,842 Catalytic Composition for Carbonylation Including Iridium and Pyridine Polymers Celanese International Corporation 6,458,995 Ink jet printing paper incorporating amine functional poly (Vinyl Alcohol) Celanese International Corporation 6,485,609 potassium aurate. Celanese International Corporation 6,486,093 Production of Tertiary Butyl Acetate from MTBE Celanese International Corporation 6,593,491 Methods for reducing entrainment of solids and liquids Celanese International Corporation 6,599,348 Method and apparatus for sequestering entrained and volatile catalyst acetyl species in a carbonylation process Celanese International Corporation 6,627,770 OXIDATION TREATMENT OF A RECYCLE STREAM IN PRODUCTION Celanese International Corporation 6,667,418 Process control in production of acetic acid via use of heavy phase ACETYL density measurement Celanese International Corporation 6,677,480 Low Energy Carbonylation Process Celanese Ltd. 6,657,078 PRODUCTION OF VINYL ALCOHOL COPOLYMERS Celanese International Corporation 6,818,709 PROCESSES FOR PREPARING ORGANIC COMPOUNDS HAVING IMPROVED COLOR CHARACTERISTICS Celanese International Corporation 10/635,983 Improved PVOH Barrier Performance on Substrates via Curtain Coater Technology Celanese International Corporation 10/859023 Microbial process for the preparation of acetic acid as well as solvent for its extraction from the fermentation broth Celanese International Corporation (Jointly owned by BRI & CIC) 6,368,819 Removal of Permanganate Reducing Compounds from Methanol Carbonylation Process Stream Celanese International Corporation 10/708,421 Control Method for Process of Removing Permanganate Reducing Compounds from Methanol Carbonylation Process Celanese International Corporation 10/708,422 Process for Producing Acetic Acid Celanese International Corporation 10/708,423 Stream Celanese International Corporation 10/708,420 Process for the simultaneous coproduction and purification of ethyl acetate and isopropyl acetate Celanese International Corporation 6,765,110 Multi-spindle CNC lathe Celanese International Corporation 9/740,360 Microbial process, and improved solvents useful in the conversion of gases into useful products Celanese International Corporation 10/053,195 coproduction of each from a methyl acetate by-product stream Celanese International Corporation 7,115,772 Utilization Of Acetic Acid Reaction Heat In Other Process Plants Celanese International Corporation 10/802,506 Polyvinyl Alcohol And Optical Brightener Concentrate Celanese International Corporation 10/869,120 Substrate Coating Compositions and their use Celanese International Corporation 10/877,290 Co-Production Of Acetic Anhydride And Acetic Acid Esters Celanese International Corporation 10/920688 Fluid Loss Concentration for Hydraulic Cement Celanese International Corporation 11/196606 Production of Vinyl Alcohol Copolymers Celanese International Corporation 10/946970 Corrosion-Resistant Ply Bond Adhesives & Products & Processes Celanese International Corporation 11/020992 Paste Solids Measurement in Real Time Celanese International Corporation 11/010719 Vinyl Acetate Hydrogenation to Ethyl Acetate Celanese International Corporation 10/988683 Methods of Making Alkenyl Alkanoates Celanese International Corporation 10/993507 Production Of Vinyl Alcohol Copolymers Celanese International Corporation 11/147910 Improved PVOH Barrier Performance on Substrates Celanese International Corporation 11/316188 Methanol Carbonylation Process Celanese International Corporation 11/512025 Borate Resistant Films Celanese International Corporation 11/147831 Acetic Acid Production Methods Incorporating At Least One Metal Salt As A Catalyst Stabilizer Celanese International Corporation 7,053,241 Method of Controlling Acetic Acid Process Celanese International Corporation 11/334638 Process For The Production Of Acetic Acid Celanese International Corporation 11/116771 Steam Generation Apparatus And Method Celanese International Corporation 11/264126 Paper Coating Compositions Celanese International Corporation 11/295904 Paper Coating Composition Celanese International Corporation 11/542796 Process And Apparatus For Improved Methods For Making Vinyl Acetate Monomer Celanese International Corporation 11/256217 Method To Purify Poly(Vinyl Alcohol) Celanese International Corporation 11/305837 Melt-Extruded Polyvinyl Alcohol Film With Improved Optical and Olfactory Properties Celanese International Corporation 60/771809 A Method And Apparatus For Fuzzy Logic Control Enhancing Advanced Process Control Performance Celanese International Corporation 11/407610 Use of Chemical Reaction to Separate Ethylene from Ethane in Ethane-Based Processes to Produce Acetic Acid Celanese International Corporation 60/765983 Integrated Process for the Production of Acetic Acid and Vinyl Acetate Celanese International Corporation 60/765985 Oxidation Catalyst Celanese International Corporation 60/771157 Use of Predehydration Towers in an Ethane Oxidation to Acetic Acid/Ethylene Process Celanese International Corporation 60/765988 Butane Absorption System for Vent Control and Ethylene Purification Celanese International Corporation 60/771124 Low Foaming PVOH Aerosol Spray Coatings Celanese International Corporation 11/358255 Method for Selectively Oxidizing Ethane to Ethylene Celanese International Corporation US06/16458 Polyvinyl Alcohol Films With Improved Resistance To Oxidizing Chemicals Celanese International Corporation 11/415768 Process for the Reduction of Aldehyde Concentration in a Target Stream Celanese International Corporation 60/792244 Polyvinyl Alcohol Fluid Loss Additive with Improved Rheological Properties Celanese International Corporation 11/452165 Fluid Loss Additive with Improved Rheological Properties Celanese International Corporation 11/452164 Method of Making a Fibrous Web with Improved Retention of Strength Additive Celanese International Corporation 60/845574 Tape Joint Compounds Utilizing Starch Stabilized Emulsions As Binders Celanese International Corporation 4845152 Heat Resistant Binders Celanese International Corporation 4892785 Neat Resistant Acrylic Binders For Nonwovens Celanese International Corporation 4957806 Non-Thermoplastic Binder For Use In Processing Textile Articles Celanese International Corporation 5087487 Epoxy Modified Core-Shell Latices Celanese International Corporation 5981627 Celanese International Corporation 5177122 Emulsion Binder For Carpet And Carpet Tiles Celanese International Corporation 5026765 Vinyl Acetate Polymer With Wet Adhesion Celanese International Corporation 5208285 Eva Polymers For Use As Beater Saturants Celanese International Corporation 5565062 Thermolastic, Aqueous Latex Paints Having Improved Wet Adhesion And Freeze-Thaw Stability Celanese International Corporation 5399617 Amphoteric Surfactants And Copolymerizable Amphorteric Surfactants For Use In Latex Paint Celanese International Corporation 5240982 Amphoteric Surfactants And Copolymerizable Amphoteric Surfactants For Use In Latex Paints Celanese International Corporation 5064888 Core-Shell Copolymer Emulsions For Flexible Coatings Celanese International Corporation 5073578 Graft Polymerization Process Using Microfluidization In An Aqueous Emulsion System Celanese International Corporation 5239008 Woodworking Adhesive Composition Containing Vinyl Acetate And N-(2,2-Dialkoxy-1-Hydroxy) Ethyl Acrylamide Celanese International Corporation 5278211 Formaldehyde-Free Crosslinking Emulsion Polymer Systems Based On Vinyl Ester Dialkoxyhydroxyethyl Acrylamide Co- And Terpolymers Celanese International Corporation 5252663 Process For The Production Of Paper Coating Binders Celanese International Corporation 5219924 N-Allyl-N-Dialkoxyethyl Amide Or Amine Monomers Celanese International Corporation 5177263 N-Allyl-N-Dialkoxyethyl Amide Or Amine Emulsion Binder For Nonwoven Fabrics Celanese International Corporation 5187006 Emulsion Binders Containing Low Residual Formaldehyde And Having Improved Tensile Strength Celanese International Corporation 5540987 Dissipative Curing And Coating Composition For Concrete Celanese International Corporation 5512619 Process For Reducing The Free Aldehyde Content In N-Alkylol Amide Monomers Celanese International Corporation 5415926 Process For Minimizing Residual Monomers Celanese International Corporation 5430127 Poly(Hydroxybutyrate/Hydroxyvalerate) Copolymers For Fiber Bonding Celanese International Corporation 5656367 Glass Fibers And Fiber-Reinforced Plastics Celanese International Corporation 5665470 Glass Fiber Sizing Compositions And Methods Of Using Same Celanese International Corporation 5491182 Latex Polymers For Pigmented Coatings Prepared In The Presence Of Acetoacetonate Moiety Celanese International Corporation 5455298 Latex Binders And Paints Which Are Free Of Volatile Coalescents And Freeze-Thaw Additives Celanese International Corporation 5530056 Latex Paints Which Are Free Of Volatile Coalescents And Freeze-Thaw Additives Celanese International Corporation 5610225 Latex Binders And Coatings Containing Polymers Derived From Polymerizable Saccharide Monomers Celanese International Corporation 5719244 Polymerizable Saccharide Monomers Which Contain A Single, Polymerizable, Alpha-Methyl Styryl Moiety Celanese International Corporation 5563252 Saccharide Monomers Celanese International Corporation 5618876 MODIFIED AQUEOUS POLYURETHANE DISPERSIONS AND METHODS FOR MAKING SAME Celanese International Corporation 5945473 PROCESS FOR MAKING AQUEOUS POLYURETHANE DISPERSIONS Celanese International Corporation 5717024 ETHYLENE/VINYL ACETATE LATEX BINDERS AND PAINTS WHICH ARE FREE OF VOLATILE COALESCENTS AND FREEZE-THAW ADDITIVES Celanese International Corporation 6087437 Thermosetting Binder Prepared With (Hydroxyalkyl)Urea Crosslinking Agent For Abrasive Articles Celanese International Corporation 6051646 (Hydroxyalkyl)Urea Crosslinking Agents Celanese International Corporation 5858549 Carpet Coating Compositions Celanese International Corporation 5849389 Acrylic Latex Binders Prepared With Saccharide Stabilizers Celanese International Corporation 5959024 Ethylene/Vinyl Acetate Latex Binders And Paints Prepared With Surface-Active Initiators Celanese International Corporation 6028139 Thermosetting Binder Prepared With Mono(Hydroxyalkyl)Urea And Oxazolidone Crosslinking Agents Celanese International Corporation 6140388 Mono(Hydroxyalkyl)Urea And Oxazolidone Crosslinking Agents Celanese International Corporation 5840822 High Solids Ethylene Vinyl Acetate Emulsions Celanese International Corporation 5939505 Ultra High Solids Vinyl Acetate-Ethylene And Vinyl Acetate Homopolymer Emulsions Celanese International Corporation 6001916 Paint Resin Emulsion Having Weatherability Celanese International Corporation 6251986 Polyurethane Hybrid Dispersions And Coatings Having Increased Wet Adhesion And Solvent Resistance Celanese International Corporation 6031041 Thixotropic Paint Compositions Containing Hydrophobic Starch Derivatives Celanese International Corporation 6001927 Crosslinkable Carpet-Back Coating With Hydroxy-Functionalized Vinyl Acetate Emulsion Polymers Celanese International Corporation 6359076 Coating Compositions Prepared With An Acrylic Modified Ethylene-Vinyl Acetate Polymer Celanese International Corporation 6174960 Salt Sensitive Aqueous Emulsions Celanese International Corporation 6683129 Polymer Dispersion Comprising Particles Of Polyurethane And A Copolymer Or Terpolymer Produced By Emulsion Polymerization Of Olefinically Unsaturated Monomers Celanese International Corporation 6924336 Highly Functionalized Ethylene-Vinyl Acetate Emulsion Copolymers Celanese International Corporation 6762239 Highly Functional Polymer Latex Celanese International Corporation 6562892 Precision Polymer Dispersion Application By Airless Spray Celanese International Corporation 6465047 Vinyl Acetate/Ethylene Emulsion Stabilized With A Phosphate Surfactant Celanese International Corporation 6673854 Coating Composition For Inkjet Applications Celanese International Corporation 6734244 Polymer-Treated Abrasive Substrate Celanese International Corporation 6713156 Terpolymer Emulsions Celanese International Corporation 4853451 Emulsion Copolymerization Celanese International Corporation 5066712 Emulsion Polymerization Celanese International Corporation 5071903 Emulsion Binders Celanese International Corporation 5534341 Carpet Coating Compositions Celanese International Corporation 10/875849 Method Of Producing Latex Bonded Nonwoven Fabric Celanese International Corporation 10/723537 High Capacity Nonwoven Binder Composition Celanese International Corporation 10/417752 Glass Sizing Composition Celanese International Corporation 10/372370 Cationic Coating For Printable Surfaces Celanese International Corporation 10/152359 Celanese International Corporation 10/963965 Method For Predicting Adhesive Interactions Using Molecular Modeling Celanese International Corporation 10/174217 Coating Composition For Ink-Jet Recording Medium And Ink-Jet Recording Medium Celanese International Corporation 10/500271 Synthetic Resin Emulsion, Easily Water-Swellable Pressure-Sensitive Adhesive Compositions Containing The Same And Process For Production Of The Emulsion Celanese International Corporation 10/500422 Binder For High Wet-Strength Substrates Celanese International Corporation 10/327331 Crosslinkable Cationic Emulsion Binders And Their Use As A Binder For Nonwovens Celanese International Corporation 10/496546 Water Dispersible, Salt Sensitive Nonwoven Materials Celanese International Corporation 09/883520 Salt-Sensitive Vinyl Acetate Binder Compositions And Fibrous Article Incorporating Same Celanese International Corporation 11/120372 Salt-Sensitive Binder Compositions With N-Alkyl Acrylamide And Fibrous Articles Incorporating Same Celanese International Corporation 11/120381 Schedule III to Guarantee and Collateral Agreement PATENTS OWNED BY CNA HOLDINGS, INC. TITLE GRANTOR REGISTRATION NUMBER HIGH DENSITY POLYESTER COMPOSITION 6,020,432 ACETAL COPOLYMERS WITH BACKBONE... 4,900,783 ACETAL COPOLYMERS WITH BACKBONE BROMO... 4,906,728 ACETAL COPOLYMERS WITH BACKBONE EPOXIDE... 5,034,499 STABILIZED TALC FILLED... 5,114,995 STABILIZED TALC-FILLED POLYESTER... 5,114,996 METHOD OF PREPARING CYCLIC... 5,616,736 STABILIZED TALC-FILLED... 5,114,997 SUPERABSORBENT CONTINUOUS FILAMENT WEB H1,565 MELT PROCESSABLE POLYESTER CAPABLE OF... 4,746,694 UV CURABLE NON-CRYSTALLINE… 4,758,608 LOW TG NON-CRYSTALLINE ACETAL... 4,788,258 COMPOSITION AND PROCESS FOR MAKING… 4,925,880 INTERNAL LUBRICANT FOR GLASS REINFORCED... 4,960,813 NOVEL POLYACETAL TERPOLYMERS OF... 4,975,519 NOVEL POLYACETAL COPOLYMERS OF... 4,983,708 UV-LIGHT STABILIZED POLYOXYMETHYLENE... 4,996,253 5,008,316 MELT-PROCESSABLE POLYESTER... 5,015,722 UV-LIGHT STABILIZED POLYESTER MOLDING... 5,032,631 ELASTOMER COMPOSITIONS MADE... 5,039,744 NON-CRYSTALLINE ACETAL… 5,041,505 REACTIVE COMPATIBILIZATION... 5,070,144 PROCESS FOR IMPROVING POLYACETAL... 5,080,846 MELT PROCESSABLE POLYESTERS... 5,140,093 MOLDABLE CERAMIC... 5,155,158 MELT PROCESSABLE THERMOTROPIC... 5,171,823 5,179,163 COMPATIBLE LCP BLENDS... 5,182,334 MELT PROCESSABLE POLY(ESTER-AMIDE)... 5,204,443 GRAFTING OF AMINE FUNCTIONAL... 5,206,308 FOAMED LIQUID CRYSTAL... 5,210,107 CENTRAL HUBS FOR FLEXIBLE... 5,214,555 THERMOSET LCP BLENDS 5,216,073 WHOLLY AROMATIC LIQUID... 5,227,456 HEAT SEALABLE COEXTRUDED... 5,248,530 LIQUID CRYSTALLINE POLYESTERS... 5,264,477 THERMALLY STABLE OLIGOMERIC... 5,264,539 ELASTOMERIC CROSS-LINKED... 5,286,808 PSEUDO NETWORK CONDENSATION... 5,306,800 EXTRUSION BLOW MOLDING... 5,336,464 LOW DIELECTRIC MATERIALS 5,348,990 METHOD FOR IMMOBILIZING SUPERABSORBENT POLYMERS BY HOMOGENIZATION OF A SUSPENSION OF SAME 5,362,766 IMPROVED PROCESS FOR FORMING... 5,393,848 THERMOTROPIC LIQUID CRYSTALLINE POLYMER... 5,401,779 BLENDS OF LIQUID CRYSTALLINE... 5,418,281 METHOD FOR IMMOBILIZING SUPERABSORBANT POLYMER AND PRODUCTS DERIVED THEREFROM 5,419,955 SUPERABSORBENT STRUCTURE 5,433,994 PROCESS FOR BLOW MOLDING... 5,443,783 PURIFICATION PROCESS FOR CYCLIC... 5,456,805 REMOVAL OF NICOTINE FROM TOBACCO SMOKE 5,462,072 5,486,971 PHOTODEGRADABLE CELLULOSE ESTER TOW 5,491,024 5,504,120 5,508,374 PROCESS FOR TREATING LIQUID CRYSTAL... 5,529,740 INJECTION MOLDABLE CERAMIC… 5,541,249 PROCESS FOR PRODUCING... 5,616,680 THERMOPLASTIC POLYMER COMPOSITION... 5,641,824 PHOTODEGRADABLE CELLULOSE ESTER TOW 5,647,383 PROCESS FOR THE RECOVERY OF AN ORGANIC ACID FROM THE MANUFACTURE OF A CELLULOSE ESTER 5,648,529 DUCTILE POLY(ARYLENE SULFIDE)... 5,652,287 MULTIAXIALLY REINFORCED LCP SHEET 5,654,045 POLYESTER FROM TEREPHTHALIC ACID... 5,656,714 HIGH EXTINCTION POLARIZER... 5,667,719 POLARIZER FILMS COMPRISING... 5,672,296 5,690,793 STARCH ACETATE AND BLENDS THEREOF WITH METAL CHELATES 5,693,279 5,695,615 MELT BLOWN POLYARYLENE SULFIDE... 5,695,869 5,703,202 IMPROVED METHOD OF MAKING STARCH ACETATE 5,710,269 PRESSURE DROP TESTER FOR FILTER RODS 5,719,328 MONOLITHIC LCP POLYMER... 5,719,354 ELASTOMERIC COMPOSITIONS 5,731,380 REUSABLE BALE WRAP KIT FOR COMPRESSED, RESILIENT FIBERS 5,732,531 POLYMERIC COMPOSITIONS... 5,739,193 LAMINATES COMPRISING COEXTRUDED... 5,744,204 PROCESS FOR REDUCING BLACK... 5,762,718 PROCESS FOR THE PRODUCTION OF... 5,767,294 HI/LO DIELECTRIC 5,783,624 METHOD OF MAKING THERMOTROPIC... 5,798,432 POLY(ARYLENE SULFIDE) COMPOSITIONS HAVING IMPROVED PROCESSABILITY 5,824,767 LCP FILMS HAVING ROUGHENED... 5,843,562 5,876,570 A PROCESS FOR SURFACE... 5,885,668 5,886,066 5,919,889 HI/LO DIELECTRIC MATERIALS 5,962,122 POLYMERIC COMPOSITIONS.. 5,965,273 METHOD AND COMPOSITIONS ... 6,020,414 ADHESIVES FOR MAKING MULTILAYER... 6,042,902 POLYMERIC ACETALS RESISTANT TO MINERAL... 6,258,884 Schedule III to Guarantee and Collateral Agreement TRADEMARKS OWNED BY CELANESE INTERNATIONAL CORPORATION U.S. Trademark Registrations Mark Grantor Registration/Serial No. CELVOL Bubble Design Celanese International Corporation 2602974 Unisize Celanese International Corporation 810317 DUR-O-COTE Celanese International Corporation 2624740 VINRES Celanese International Corporation 2797215 VINACRYL Celanese International Corporation 2786191 VINAMUL Celanese International Corporation 0579774 RESYN Celanese International Corporation 627576 DUR-O-SET Celanese International Corporation 762558 HI LOFT Celanese International Corporation 948779 CHEMVIP Celanese International Corporation 3102968 CELWHITE Celanese International Corporation 78347114 VYTEK Celanese International Corporation 3104866 CELPOL Celanese International Corporation 2744919 CELDEFOAM Celanese International Corporation 2580446 CELVOL Celanese International Corporation 2560464 CELANESE Celanese International Corporation 179,796 CELANESE Celanese International Corporation 240,681 CELANESE Celanese International Corporation 322,821 CELANESE Celanese International Corporation 385,189 CELANESE Celanese International Corporation 506,533 CELANESE Celanese International Corporation 811,180 CELANESE Celanese International Corporation 831,525 Unique Mark, looks like a swirled “C” Celanese International Corporation 831,526 Celanese International Corporation 832,786 CELANESE Celanese International Corporation 832,787 Celanese International Corporation 832,788 CELANESE Celanese International Corporation 834,807 Celanese International Corporation 834,808 Celanese International Corporation 847,073 Celanese International Corporation 847,903 Celanex Celanese International Corporation 924,042 Unique Mark “Be Aware, Work with Care” Celanese International Corporation 1,932,459 AOPLUS Celanese International Corporation 78/059286 Celawrap Celanese International Corporation 2,585,709 Schedule III to Guarantee and Collateral Agreement TRADEMARKS OWNED BY CNA HOLDINGS, INC. U.S. Trademark Registrations Mark Grantor Celcon 700,305 Vectra 1,383,843 Celebrate! 1,423,954 Celebrate! 1,430,295 Celstran 1,432,612 Vandar 1,466,836 Riteflex 1,466,837 Impet 1,476,425 Snowflake & Design 1,762,255 Encore 1,763,888 Starburst & Design 1,771,518 Inspec 1,917,196 Rodmap 2,106,973 Rodmap 2,106,974 Smoke Signals 2,370,370 The Science of Cigarette Filtration 2,413,563 Microsafe 2,547,437 Celectra 2,657,246 AMCEL 694414 AMCEL 682715 FORMCEL 545328 FORTRON 1452706 AQF CNA Holding, Inc. 2,058,874 AQF 2,058,876 Exhibit I to Guarantee and Collateral Agreement SUPPLEMENT NO. dated as of (this “Supplement”), to the Guarantee and Collateral Agreement dated as of April 2, 2007 (the “Collateral Agreement”), among CELANESE HOLDINGS LLC, CELANESE US HOLDINGS LLC, CELANESE AMERICAS CORPORATION and the other Guarantors party thereto and DEUTSCHE BANK AG, NEW YORK BRANCH as Collateral Agent (in such capacity, the “Collateral Agent”) for the Secured Parties (as defined herein). A. Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Collateral Agreement. B. Section 7.16 of the Collateral Agreement provides that additional Persons will become Guarantors under the Collateral Agreement by execution and delivery of an instrument in the form of this Supplement. The undersigned Person (the “New Guarantor”) is executing this Supplement to become a Guarantor. Accordingly, the Collateral Agent and the New Guarantor agree as follows: SECTION 1. In accordance with Section 7.16 of the Collateral Agreement, the New Guarantor by its signature below becomes a Guarantor under Collateral Agreement with the same force and effect as if originally named therein as a Guarantor, and the New Guarantor hereby (a) agrees to all the terms and provisions of the Collateral Agreement applicable to it as a Guarantor and (b) represents and warrants that the representations and warranties made by it as a Guarantor thereunder are true and correct, in all material respects, on and as of the date hereof. In furtherance of the foregoing, the New Guarantor, as security for the payment and performance in full of the Obligations, does hereby create and grant to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, their successors and assigns, a security interest in and Lien on all the New Guarantor’s right, title and interest in and to the Collateral of the New Guarantor. Each reference to a “Guarantor” in the Guarantee and Collateral Agreement shall be deemed to include the New Guarantor. The Collateral Agreement is hereby incorporated herein by reference. SECTION 2. The New Guarantor represents and warrants to the Collateral Agent and the other Secured Parties that this Supplement has been duly authorized, executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, moratorium, reorganization, fraudulent conveyance or other similar laws affecting creditors’ rights generally, (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (iii) implied covenants of good faith and fair dealing. SECTION 3. This Agreement may be executed in two or more counterparts, each of which shall constitute an original but all of which when taken together shall constitute but one contract. This Supplement shall become effective when (a) the Collateral Agent shall have received a counterpart of this Supplement that bears the signature of the New Guarantor and (b) the Collateral Agent has executed a counterpart hereof. -2- SECTION 4. The New Guarantor hereby represents and warrants that (a) set forth on Schedule I attached hereto is a true and correct schedule of the location of any and all Article 9 Collateral of the New Guarantor, (b) set forth on Schedule II attached hereto is a true and correct schedule of all the Pledged Securities of the New Guarantor and (c) set forth under its signature hereto, is the true and correct legal name of the New Guarantor, its jurisdiction of formation and the location of its chief executive office. SECTION 5. Except as expressly supplemented hereby, the Collateral Agreement shall remain in full force and effect. SECTION 6. THIS SUPPLEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS SUPPLEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. SECTION 7. In the event any one or more of the provisions contained in this Supplement should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and in the Collateral Agreement shall not in any way be affected or impaired thereby. The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions. SECTION 8. All communications and notices hereunder shall be in writing and given as provided in Section 7.01 of the Collateral Agreement. SECTION 9. The New Guarantor agrees to reimburse the Collateral Agent for its reasonable out-of-pocket expenses in connection with this Supplement, including the reasonable fees, disbursements and other charges of counsel for the Collateral Agent. IN WITNESS WHEREOF, the New Guarantor and the Collateral Agent have duly executed this Supplement to the Collateral Agreement as of the day and year first above written. -3- [NAME OF NEW GUARANTOR] By: Name: Title: Legal Name: Jurisdiction of Formation: Location of Chief Executive Office: as Collateral Agent By: Name: Title: By: Name: Title: -4- Schedule I to Supplement No.___ to the Guarantee and Collateral Agreement LOCATION OF ARTICLE 9 COLLATERAL Description Location Schedule II to Supplement No. __ to the Guarantee and Collateral Agreement Pledged Securities of the New Guarantor EQUITY INTERESTS Number of Issuer Certificate Registered Owner Number and Class of Equity Interest Percentage of Equity Interests DEBT SECURITIES Issuer Principal Amount Date of Note Maturity Date OTHER PROPERTY
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 29, 2011 WPCS INTERNATIONAL INCORPORATED (Exact name of registrant as specified in its charter) Delaware 0-26277 98-0204758 (State or Other Jurisdiction of Incorporation) (Commission File Number) (IRS Employer Identification No.) One East Uwchlan Avenue, Suite 301, Exton, PA 19341 (Address of principal executive offices and zip code) Registrant’s telephone number, including area code: (610) 903-0400 Copy of correspondence to: Marc J. Ross, Esq. Thomas A. Rose, Esq. James M. Turner, Esq. Sichenzia Ross Friedman Ference LLP 61 Broadway New York, New York 10006 Tel:(212) 930-9700Fax:(212) 930-9725 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 (see General Instruction A.2. below): 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 2.02Results of Operations and Financial Condition. On July 29, 2011, WPCS International Incorporated (the “Company”) announced its operating results for the fiscal year ended April 30, 2011. A copy of the press release that discusses this matter is filed as Exhibit 99.1 to, and incorporated by reference in, this report. The information in this Current Report is being furnished and shall not be deemed "filed" for the purposes of Section 18 of the Securities Exchange Act of 1934 or otherwise subject to the liabilities of that Section. The information in this Current Report shall not be incorporated by reference into any registration statement or other document pursuant to the Securities Act of 1933, except as shall be expressly set forth by specific reference in any such filing. Use of Non-GAAP Financial Measures The attached press release references EBITDA, a financial term that is not in accordance with GAAP. Management uses EBITDA to evaluate the Company's operating and financial performance in light of business objectives, for planning purposes, when publicly providing our business outlook and to facilitate period-to-period comparisons. The Company believes that these measures are useful to investors because they enhance investors' ability to review the Company's business from the same perspective as our management and to facilitate comparisons of this period's results with prior periods.Non-GAAP measures are used by some investors when assessing the ongoing operating and financial performance of our Company. These financial measures are not in accordance with GAAP and may differ from non-GAAP methods of accounting and reporting used by other companies. The presentation of the additional information should not be considered a substitute for net income or net income per diluted prepared in accordance with GAAP. The primary material limitations associated with the use of non-GAAP measures as compared to the most directly comparable GAAP financial measures are (i) they may not be comparable to similarly titled measures used by other companies in our industry, and (ii) they exclude financial information that some may consider important in evaluating our performance. As the press release only references a non-GAAP financial term in a forward-looking statement and does not disclose any actual non-GAAP financial measures, no reconciliation pursuant to the requirements of Regulation G is required. ITEM 9.01Financial Statements and Exhibits. (d)Exhibits. 99.1Press Release, dated July 29, 2011, issued by WPCS International Incorporated. SIGNATURE Pursuant to the requirement 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. WPCS INTERNATIONAL INCORPORATED Date:July 29, 2011 By: /s/JOSEPH HEATER Joseph Heater Chief Financial Officer
Title: Gym reinstated my membership without consent after I received written confirmation that I cancelled and is now breaking TCPA compliance trying to get me to pay my monthly membership fee [AZ] Question:Just like the title says. I received written confirmation from the gym's financial services company that my membership would be cancelled in 30 days. They continued to charge me for 4 months and then gave me the run around 2 weeks ago when I tried to figure out what was going on. They said I had called to reinstate my membership shortly after cancelling (definitely didn't) but that the manager would call me. I finally just disputed the charges with my bank and blocked any future charges from them. I received a text this morning that I had opted in to text messages (I didn't) and to reply STOP to cancel... nothing out of the ordinary. So I did. Got the text that I would no longer receive texts from them. 1 minute later, I received another text about my account being past due. Is this worth pursuing? It's a very small amount of money (<$100) but my experience with this gym has been nothing short of horrible so I really wouldn't mind going scorched earth on them. Answer #1: I'm going out on a limb and guessing Planet Fitness. You could do small claims court, but as you mention that's not a very cost-effective solution. I would file complaints with your state's consumer protection agency and the attorney general's office for an unfair and deceptive business practice. CC the gym on the letters and that might prompt a refund. Answer #2: Yes, it is worth getting in front of this now before it turns into a collection on your credit report. Best way is to go in person and/or call and escalate escalate escalate until someone can give you a paper saying your account balance is zero and your membership is canceled.
Converted by SEC Publisher, created by BCL Technologies Inc., for SEC Filing Exhibit 32.2 CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION -OXLEY ACT OF 2002 In connection with the quarterly report of 24Holdings Inc. (the Company) on Form 10-Q for the period ending June 30, 2009 as filed with the Securities and Exchange Commission (the Report), I, Kirk M. Warshaw, Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. ss. 1350, as adopted pursuant to ss. 906 of the Sarbanes-Oxley Act of 2002, that: The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and The information contained in the Report fairly presents, in all material respects, the financial condition and result of operations of the Company. Dated: August 10, 2009 /s/ Kirk M. Warshaw Kirk M. Warshaw Chief Financial Officer A signed original of this certification has been provided to the Company and will be retained by the Company and furnished to the Securities and Exchange Commission or its staff upon request.
UNITED STATES  SECURITIES AND EXCHANGE COMMISSION  Washington, DC 20549 FORM 6-K REPORT OF FOREIGN PRIVATE ISSUER PURSUANT TO RULE 13A - 16 OR 15D - 16 OF THE SECURITIES EXCHANGE ACT OF 1934  01 October2012 Commission File No. 001-32846 CRH public limited company (Translation of registrant's name into English) Belgard Castle, Clondalkin,  Dublin 22, Ireland.  (Address of principal executive offices)   Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F:  Form 20-F X Form 40-F Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1): Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7): BLOCK LISTING SIX MONTHLY RETURN Information provided on this form must be typed or printed electronically and provided to an ris. Date: 1st October 2012 Name of applicant: CRH plc Name of scheme: 2000 Share Option Scheme (RA/CRHplc/00024) Period of return: From: To: Balance of unallotted securities under scheme(s) from previous return: Plus: The amount by which the block scheme(s) has been increased since the date of the last return (if any increase has been applied for): - Less: Number of securities issued/allotted under scheme(s) during period (see LR3.5.7G): - Equals: Balance under scheme(s) not yet issued/allotted at end of period: Name of contact: Neil Colgan Telephone number of contact: 00 BLOCK LISTING SIX MONTHLY RETURN Information provided on this form must be typed or printed electronically and provided to an ris. Date: 1st October 2012 Name of applicant: CRH plc Name of scheme: 2000 Share Option Scheme (United Kingdom) (RA/CRHplc/00023) Period of return: From: To: Balance of unallotted securities under scheme(s) from previous return: Plus: The amount by which the block scheme(s) has been increased since the date of the last return (if any increase has been applied for): - Less: Number of securities issued/allotted under scheme(s) during period (see LR3.5.7G): - Equals: Balance under scheme(s) not yet issued/allotted at end of period: Name of contact: Neil Colgan Telephone number of contact: 00 BLOCK LISTING SIX MONTHLY RETURN Information provided on this form must be typed or printed electronically and provided to an ris. Date: 1st October 2012 Name of applicant: CRH plc Name of scheme: 2000 Saving Related Share Option Scheme (Republic of Ireland) (RA/CRHplc/00024) Period of return: From: To: Balance of unallotted securities under scheme(s) from previous return: Plus: The amount by which the block scheme(s) has been increased since the date of the last return (if any increase has been applied for): - Less: Number of securities issued/allotted under scheme(s) during period (see LR3.5.7G): - Equals: Balance under scheme(s) not yet issued/allotted at end of period: Name of contact: Neil Colgan Telephone number of contact: 00 BLOCK LISTING SIX MONTHLY RETURN Information provided on this form must be typed or printed electronically and provided to an ris. Date: 1st October 2012 Name of applicant: CRH plc Name of scheme: 2000 Saving Related Share Option Scheme (United Kingdom) (RA/CRHplc/00020) Period of return: From: To: Balance of unallotted securities under scheme(s) from previous return: Plus: The amount by which the block scheme(s) has been increased since the date of the last return (if any increase has been applied for): - Less: Number of securities issued/allotted under scheme(s) during period (see LR3.5.7G): - Equals: Balance under scheme(s) not yet issued/allotted at end of period: Name of contact: Neil Colgan Telephone number of contact: 00 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. CRH public limited company (Registrant) Date01 October2012 By:/s/Maeve Carton M. Carton Finance Director
Exhibit 10.1 FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT This Amendment is entered into as of April 16, 2015 by and among FAIR ISAAC CORPORATION, a Delaware corporation (the “Borrower”), the Required Lenders (as defined in the Credit Agreement defined below) and WELLS FARGO BANK, NATIONAL ASSOCIATION (“Wells Fargo”), as administrative agent (in such capacity, together with any successor thereto, the “Administrative Agent”). The Borrower, the Administrative Agent, the several banks and other financial institutions or entities from time to time parties thereto (the “Lenders”), the Administrative Agent and certain other Persons are parties to an Amended and Restated Credit Agreement dated December 30, 2014, setting forth the terms on which the Lenders extended a revolving line of credit to the Borrower (as amended, supplemented, restated or otherwise modified from time to time, the “Credit Agreement”). The Borrower, the Lenders and the Administrative Agent wish to amend the Credit Agreement as provided herein. ACCORDINGLY, in consideration of the mutual covenants contained in the Credit Agreement and herein, the parties hereby agree as follows: 1. Definitions. All terms defined in the Credit Agreement that are not otherwise defined herein shall have the meanings given them in the Credit Agreement. 2. Amendment. The definition of “Change of Control” is hereby amended by deleting it in its entirety and substituting the following in lieu therefor: “Change of Control”: with respect to any Person, an event or series of events by which any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act, but excluding any employee benefit plan of such person or its Subsidiaries, and any Person acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the Beneficial Owner, directly or indirectly, of 30% or more of the Capital Stock of such Person entitled to vote for members of the board of directors or equivalent governing body of such Person. 3. Representations and Warranties. The Borrower represents and warrants to the (a) The Borrower has all requisite power and authority, corporate or otherwise, to execute and deliver this Amendment, and to perform this Amendment and the Credit Agreement as amended hereby. This Amendment has been duly and validly executed and delivered to the Required Lenders and the Administrative Agent by the Borrower, and this Amendment and the Credit Agreement as amended hereby constitute the Borrower’s legal, valid and binding obligations enforceable in accordance with their terms. (b) The execution, delivery and performance by the Borrower of this Amendment, and the performance of the Credit Agreement as amended hereby, have been duly authorized by all necessary corporate action and do not and will not (i) require any authorization, consent or approval by any governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, (ii) violate the Borrower’s certificate of incorporation or bylaws or any provision of any law, rule, regulation or order presently in effect having applicability to the Borrower, (iii) result in a breach of or constitute a default under any indenture or agreement to which the Borrower is a party or by which the Borrower or its properties may be bound or affected, or (iv) result in, or require, the creation or imposition of any Lien upon or with respect to any of the properties now owned or hereafter acquired by the Borrower. (c) Each of the representations and warranties made by the Borrower in Section 4 of the Credit Agreement that does not contain a materiality or Material Adverse Effect qualification is true and correct in all material respects on and as of the date hereof, and each of the representations and warranties made by the Borrower in Section 4 of the Credit Agreement that contains a materiality or Material Adverse Effect qualification are true and correct on and as of the date hereof (or, to the extent such representations and warranties specifically relate to an earlier date, that such representations and warranties were true and correct in all material respects, or true and correct, as the case may be, as of such earlier date). 4. Condition. The amendment set forth in Section 2 shall be effective only if, on or before the date hereof, the Administrative Agent and the Required Lenders have received this Amendment, duly executed by the Borrower. 5. Miscellaneous. The Borrower shall pay all costs and expenses of the Administrative Agent and the Lenders, including attorneys’ fees, incurred in connection with this Amendment and any related documents. This document shall be deemed a “Loan Document,” as defined in the Credit Agreement. Except as amended by this Amendment, all of the terms and conditions of the Credit Agreement shall remain in full force and effect. This Amendment may be executed in any number of an original and all of which counterparts of this Amendment, taken together, shall constitute but one and the same instrument. Delivery of an executed counterpart of a signature page to this Amendment by facsimile or by email transmission of a PDF or similar copy shall be equally as effective as delivery of an original executed counterpart of this Amendment. Any party delivering an executed counterpart signature page to this Amendment by facsimile or by email transmission shall also deliver an original executed counterpart of this Amendment but the failure to deliver an original executed counterpart shall not affect the validity, enforceability or binding effect of this Amendment. This Amendment shall be governed by the substantive law of the State of New York. Signature pages follow -2- IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date first above written. FAIR ISAAC CORPORATION By: /s/ Mark R. Scadina Name: Mark R. Scadina Title: EVP & General Counsel Signature Page to First Amendment to Credit Agreement WELLS FARGO BANK, NATIONAL ASSOCIATION, as Joint Lead Arranger, Administration Agent, Issue Lender and a Lender By: /s/ R. James Hancock Name: R. James Hancock Title: Vice President U.S. BANK NATIONAL ASSOCIATION, as Joint Lead Arranger, Syndication Agent and a Lender By: /s/ Mila Yakovlev Name: Mila Yakovlev Title: Vice President HSBC Bank USA, N.A., as a Lender By: /s/ Graeme Robertson Name: Graeme Robertson Title: Senior Vice President Bank of America, N.A., as a Lender By: /s/ Aaron Marks Name: Aaron Marks Title: Senior Vice President
Exhibit 10.2 L-3 COMMUNICATIONS HOLDINGS, INC. 2008 DIRECTORS STOCK INCENTIVE PLAN RESTRICTED STOCK UNIT AGREEMENT (Version 0001) This Restricted Stock Unit Agreement (this “Agreement”), effective as of the Grant Date (as defined below), is between L-3 Communications Holdings, Inc., a Delaware corporation (the “Corporation”), and the Participant (as defined below). 1. Definitions. The following terms shall have the following meanings for purposes of this Agreement: (a) “Award Letter” shall mean the letter to the Participant attached hereto as Exhibit A. (b) “Change in Control” means: (1) The acquisition by any person or group (including a group within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act), other than the Corporation or any of its subsidiaries, of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of a majority of the combined voting power of the Corporation’s then outstanding voting securities, other than by any employee benefit plan maintained by the Corporation; (2) The sale of all or substantially all the assets of the Corporation and its subsidiaries taken as a whole; or (3) The election, including the filling of vacancies, during any period of 24 months or less, of 50% or more of the members of the Board of Directors, without the approval of Continuing Directors, as constituted at the beginning of such period. “Continuing Directors” shall mean any director of the Corporation who either (i) is a member of the Board of Directors on the Grant Date, or (ii) is nominated for election to the Board of Directors by a majority of the Board which is comprised of directors who were, at the time of such nomination, Continuing Directors. (c) “Code” shall mean the Internal Revenue Code of 1986, as amended (d) “Grant Date” shall mean the “Grant Date” listed in the Award Letter. (e) “Participant” shall mean the “Participant” listed in the Award Letter. (f) “Restricted Period” shall mean the period beginning on the Grant Date and expiring on the earlier of (i) the date on which the Participant ceases to be a director of the Corporation or (ii) the occurrence of a Change in Control that constitutes a Section 409A Change in Control Event. (g) “Restricted Units” shall mean that number of restricted units listed in the Award Letter as “Awards Granted,” as the same may be adjusted from time to time in accordance with the terms hereof. (h) “Section 409A Change in Control Event” shall mean a change in ownership or effective control of the Corporation, or in the ownership of a substantial portion of the assets of the Corporation, within the meaning of Section 409A(a)(2)(A)(v) of the Code. (i) “Shares” shall mean a number of shares of the Corporation’s Common Stock, par value $0.01 per share, equal to the number of Restricted Units. (j) “Specified Employee” shall mean a “specified employee” as defined in Treasury Regulation Section 1.490A-1(i). (k) “Vesting Date” shall mean the earliest of: (a) the first anniversary of the Grant Date (or if earlier, the date of the Corporation’s first regular annual meeting of stockholders held after the Grant Date), (b) the termination of the Participant’s service as a director of the Corporation by reason of death or permanent disability or (c) the occurrence of a Change in Control (without regard to whether such event constitutes a Section 409A Change in Control Event). 2. Grant of Units. The Corporation hereby grants the Restricted Units to the Participant, each of which represents the right to receive one Share upon the expiration of the Restricted Period, subject the terms, conditions and restrictions set forth in the L-3 Communications Holdings, Inc. 2008 Directors Stock Incentive Plan (the “Plan”) and this Agreement. 3. Restricted Unit Account. The Corporation shall cause an account (the “Unit Account”) to be established and maintained on the books of the Corporation to record the number of Restricted Units credited to the Participant under the terms of this Agreement. The Participant’s interest in the Unit Account shall be that of a general, unsecured creditor of the Corporation. 4. Restrictions on Transfer During Restricted Period. Until the Restricted Period has expired or terminated, the Restricted Units shall not be sold, assigned, transferred, pledged, hypothecated, loaned, or otherwise disposed of, and during the Participant’s lifetime the Participant’s rights with respect to the Restricted Units shall be exercised only by such Participant or by his or her guardian or legal representative, except that the Restricted Units may be transferred by will or by the laws of descent and distribution. Any sale, assignment, transfer, pledge, hypothecation, loan or other disposition other than in accordance with this Section 4 shall be null and void. 5. Vesting; Forfeiture. Notwithstanding anything in this agreement to the contrary, the Participant shall forfeit the Restricted Units and all of the Participants rights hereunder shall cease (unless otherwise provided for by the Committee in accordance with the Plan) in the event that either: (a) the Restricted Period expires prior to the Vesting Date or (b) the Participant is removed as director of the Corporation for cause. 6. Dividend Equivalents. If the Corporation pays a cash dividend or distribution on its Common Stock, the Participant’s Unit Account shall be credited as of the payment date with an additional number of Restricted Units equal to the following calculation (rounded up or down to the nearest whole number): (i) the amount payable per share of Common Stock outstanding as of record date of the dividend or distribution, multiplied by (ii) the number of Restricted Units credited to the Participant’s Unit Account as of the record date for the dividend or distribution, divided by (iii) the Fair Market Value (as defined in the Plan) of a share of Common Stock as of the payment date. 7. No Right to Continue as a Director. Nothing in this Agreement or the Plan shall be interpreted or construed to confer upon the Participant any right to continue as a director of the 2 Corporation, nor shall this Agreement or the Plan interfere in any way with the right of the Corporation or its directors or stockholders to remove the Participant as a director in accordance with the by-laws of the Corporation. 8. No Rights as a Stockholder. The Participant’s interest in the Restricted Units shall not entitle the Participant to any rights as a stockholder of the Corporation. The Participant shall not be deemed to be the holder of, or have any of the rights and privileges of a stockholder of the Corporation in respect of, the Shares unless and until such Shares have been issued to the Participant in accordance Section 11. 9. Adjustments Upon Change in Capitalization. In the event of any reorganization, merger, consolidation, recapitalization, reclassification, stock split, stock dividend or similar capital adjustment, as a result of which shares of any class shall be issued in respect of outstanding shares of the Corporation’s Common Stock or shares of Corporation’s Common Stock shall be changed into a different number of shares or into another class or classes or into other property or cash, the Restricted Units, the Participant’s Unit Account and/or the Shares shall be adjusted to reflect such event so as to preserve (without enlarging) the value of the award hereunder, with the manner of such adjustment to be determined by the Committee in its sole discretion. This paragraph shall also apply with respect to any extraordinary dividend or other extraordinary distribution in respect of the Corporation’s Common Stock (whether in the form of cash or other property). 10. General Restrictions. Notwithstanding anything in this Agreement to the contrary, the Corporation shall have no obligation to issue or transfer the Shares as contemplated by this agreement unless and until such issuance or transfer shall comply with all relevant provisions of law and the requirements of any stock exchange on which the Corporation’s shares are listed for trading. 11. Issuance of Shares. Upon the expiration of the Restricted Period and subject to Sections 5 and 10 and payment by the Participant of any applicable withholding taxes, the Corporation shall, as soon as reasonably practicable (and in any event within 75 days of the expiration of the Restricted Period), issue the Shares to the Participant, free and clear of all restrictions; provided, that if the expiration of the Restricted Period results from a Section 409A Change in Control Event, then notwithstanding the foregoing, the Shares shall be issued within 30 days of the Section 409A Change in Control Event; provided further, that in the event the Participant is a Specified Employee and the expiration of the Restricted Period does not result from the death of the Participant or a Section 409A Change in Control Event, then notwithstanding the foregoing, the Shares shall be issued as soon as reasonably practicable following (and not prior to) the date that is six months after the expiration of the Restricted Period (and in any event within 75 days after such date). The Corporation shall not be required to deliver any fractional Shares, but shall pay, in lieu thereof, the Fair Market Value (as defined in the Plan) thereof as of the date on which the Shares first become issuable under this Section. The Corporation shall pay any costs incurred in connection with issuing the Shares. Upon the issuance of the Shares to the Participant, the Participant’s Unit Account shall be eliminated. Notwithstanding the provisions of this Section, if the Restricted Units have been transferred in accordance with the provisions of Section 4 prior to the issuance of the Shares to the Participant in accordance with this Section, then the issuance of the Shares and any payment in lieu of fractional Shares shall be made to the transferee(s). 12. Subsidiary. As used herein, the term “subsidiary” shall mean, as to any person, any corporation, association, partnership, joint venture or other business entity of which 50% or more of the voting stock or other equity interests (in the case of entities other than corporations), is owned or controlled (directly or indirectly) by that entity, or by one or more of the Subsidiaries of that entity, or by a combination thereof. 3 13. Plan Governs. The Participant hereby acknowledges receipt of a copy of the Plan and agrees to be bound by its terms, all of which are incorporated herein by reference. The Plan shall govern in the event of any conflict between this Agreement and the Plan. 14. Modification of Agreement. This Agreement may be modified, amended, suspended or terminated, and any terms or conditions may be waived, but, subject to the terms and conditions of the Plan and this Agreement, only by a written instrument executed by the parties hereto. 15. Severability. Should any provision of this Agreement be held by a court of competent jurisdiction to be unenforceable or invalid for any reason, the remaining provisions of this Agreement shall not be affected by such holding and shall continue in full force in accordance with their terms. 16. Governing Law. The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of New York without giving effect to the conflicts of laws principles thereof. If the Participant has received a copy of this Agreement (or the Plan or any other document related hereto or thereto) translated into a language other than English, such translated copy is qualified in its entirety by reference to the English version thereof, and in the event of any conflict the English version will govern. 17. Successors in Interest. This Agreement shall inure to the benefit of and be binding upon any successor to the Corporation. This Agreement shall inure to the benefit of the Participant or the Participant’s legal representatives. All obligations imposed upon the Participant and all rights granted to the Corporation under this Agreement shall be final, binding and conclusive upon the Participant’s heirs, executors, administrators and successors. 18. Administration. The Committee shall have the power to interpret the Plan and this Agreement and to adopt such rules for the administration, interpretation and application of the Plan as are consistent therewith and to interpret or revoke any such rules. All actions taken and all interpretations and determinations made by the Committee shall be final and binding upon the Participant, the Corporation and all other interested persons. No member of the Committee shall be personally liable for any action determination or interpretation made in good faith with respect to the Plan or the Restricted Units. In its absolute discretion, the Board of Directors may at any time and from time to time exercise any and all rights and duties of the Committee under the Plan and this Agreement. 19. Resolution of Disputes. Any dispute or disagreement which may arise under, or as a result of, or in any way related to, the interpretation, construction or application of this Agreement shall be determined by the Committee. Any determination made hereunder shall be final, binding and conclusive on the Participant and Corporation for all purposes. 20. Data Privacy Consent. As a condition of the grant of the Restricted Units, the Participant hereby consents to the collection, use and transfer of personal data as described in this paragraph. The Participant understands that the Corporation and its subsidiaries hold certain personal information about the Participant, including name, home address and telephone number, date of birth, social security number, salary, nationality, job title, ownership interests or directorships held in the Corporation or its subsidiaries, and details of all restricted units or other equity awards or other entitlements to shares of common stock awarded, cancelled, exercised, vested or unvested (“Data”). The Participant further understands that the Corporation and its subsidiaries will transfer Data among themselves as necessary for the purposes of implementation, administration and management of the Participant’s participation in the Plan, and that the Corporation and any of its subsidiaries may each further transfer Data to any third 4 parties assisting the Corporation in the implementation, administration and management of the Plan. The Participant understands that these recipients may be located in the European Economic Area or elsewhere, such as the United States. The Participant hereby authorizes them to receive, possess, use, retain and transfer such Data as may be required for the administration of the Plan or the subsequent holding of shares of common stock on the Participant’s behalf, in electronic or other form, for the purposes of implementing, administering and managing the Participant’s participation in the Plan, including any requisite transfer to a broker or other third party with whom the Participant may elect to deposit any shares of common stock acquired under the Plan. The Participant may, at any time, view such Data or require any necessary amendments to it. 21. Limitation on Rights; No Right to Future Grants. By accepting this Agreement and the grant of the Restricted Units contemplated hereunder, the Participant expressly acknowledges that (a) the Plan is discretionary in nature and may be suspended or terminated by the Corporation at any time; (b) the grant of Restricted Units is a one-time benefit that does not create any contractual or other right to receive future grants of restricted units, or benefits in lieu of restricted units; (c) all determinations with respect to future grants of restricted units, if any, including the grant date, the number of Shares granted and the restricted period, will be at the sole discretion of the Corporation; (d) the Participant’s participation in the Plan is voluntary; and (e) the future value of the underlying Shares is unknown and cannot be predicted with certainty. 22. Award Administrator. The Corporation may from time to time to designate a third party (an “Award Administrator”) to assist the Corporation in the implementation, administration and management of the Plan and any Restricted Units granted thereunder, including by sending Award Letters on behalf of the Corporation to Participants, and by facilitating through electronic means acceptance of Restricted Unit Agreements by Participants. 23. Section 409A. This Agreement is intended to comply with the provisions of Section 409A of the Code and the regulations promulgated thereunder. Without limiting the foregoing, the Committee shall have the right to amend the terms and conditions of this Agreement in any respect as may be necessary or appropriate to comply with Section 409A of the Code or any regulations promulgated thereunder, including without limitation by delaying the issuance of the Shares contemplated hereunder. 24. Book Entry Delivery of Shares. Whenever reference in this Agreement is made to the issuance or delivery of certificates representing one or more Shares, the Corporation may elect to issue or deliver such Shares in book entry form in lieu of certificates. 5 25. Acceptance. This Agreement shall not be enforceable until it has been executed by the Participant. In the event the Corporation has designated an Award Administrator, the acceptance (including through electronic means) of the Restricted Unit award contemplated by this Agreement in accordance with the procedures established from time to time by the Award Administrator shall be deemed to constitute the Participant’s acknowledgment and agreement to the terms and conditions of this Agreement and shall have the same legal effect in all respects of the Participant having executed this Agreement by hand. By: L-3 COMMUNICATIONS HOLDINGS, INC. -s- Michael T. Strianese [y01570y0157003.gif] Michael T. Strianese President and Chief Executive Officer -s- Steven M. Post [y01570y0157004.gif] Steven M. Post Senior Vice President, General Counsel and Corporate Secretary Acknowledged and Agreed as of the date first written above: Participant Signature 6
Exhibit 99.1 CYBER VENTURES, INC. AND AUTOTROPOLIS, INC. COMBINED FINANCIAL STATEMENTS DECEMBER 31, 2 CYBER VENTURES, INC. AND AUTOTROPOLIS, INC. COMBINED FINANCIAL STATEMENTS CONTENTS Page Report of Independent Auditors 3 Combined Balance Sheets 4 Combined Statements of Income 5 Combined Statement of Stockholders' Equity 6 Combined Statements of Cash Flows 7 Notes to the Combined Financial Statements 8 2 REPORT OF INDEPENDENT AUDITORS The Board of Directors Cyber Ventures, Inc. and Autotropolis, Inc. We have audited the accompanying combined balance sheets of Cyber Ventures, Inc. and Autotropolis, Inc. (the Company) as of December 31, 2009 and 2008, and the related combined statements of income, stockholders’ equity, and cash flowsfor the years then ended.These combined financial statements are the responsibility of the Company’s management.Our responsibility is to express an opinion on these combined financial statements based on our audits. We conducted our audits in accordance with auditing standards generally accepted in the United States.Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the combined financial statements are free of material misstatement.An audit includes consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting.Accordingly, we express no such opinion.An audit also includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, and evaluating the overall financial statement presentation.We believe that our audits provide a reasonable basis for our opinion. In our opinion, the financial statements referred to above present fairly, in all material respects, the combined financial position of Cyber Ventures, Inc. and Autotropolis, Inc. as of December 31, 2009 and 2008, and the combined results of their operations and their cash flowsfor the years then ended in conformity with U.S. generally accepted accounting principles. /s/ Ernst & Young LLP November 12, 2010 3 CYBER VENTURES, INC. AND AUTOTROPOLIS, INC. COMBINED BALANCE SHEETS December 31, December 31, Assets Current assets: Cash and cash equivalents $ $ Accounts receivable Prepaid expenses and other current assets — Total current assets Property and equipment, net Other long-term assets Total assets $ $ Liabilities and Stockholders’ Equity Current liabilities: Accounts payable $ $ Accrued expenses Deferred rent, current Short term debt Total current liabilities Long-term liabilities: Deferred rent, noncurrent Loans payable to stockholders Total long-term liabilities Total liabilities Commitments and contingencies (Note 4) — — Stockholders’ equity: Common stock, $1.00 par value; 2,000 shares authorized; 1,200 shares issued and outstanding at December 31, 2009 and 2008 Retained earnings Total stockholders’ equity Total liabilities and stockholders’ equity $ $ The accompanying notes are an integral part of these combined financial statements. 4 CYBER VENTURES, INC. AND AUTOTROPOLIS, INC. COMBINED STATEMENTS OF INCOME Year Ended December 31, Revenues $ $ Cost of revenues Operating expenses: Sales and marketing General and administrative Income from operations Other expense ) ) Net income $ $ The accompanying notes are an integral part of these combined financial statements. 5 CYBER VENTURES, INC. AND AUTOTROPOLIS, INC. COMBINED STATEMENT OF CHANGES IN STOCKHOLDERS’ EQUITY Total Common Stock Accumulated Stockholders’ Shares Amount Deficit Equity Balance at December 31, 2007 $ $ $ Net income Distributions ) ) Balance at December 31, 2008 Net income Distributions ) ) Balance at December 31, 2009 $ $ $ The accompanying notes are an integral part of these combined financial statements. 6 CYBER VENTURES, INC. AND AUTOTROPOLIS, INC. COMBINED STATEMENTS OF CASH FLOWS Year Ended December 31, Operating Activities: Net income $ $ Adjustments to reconcile net income to net cash provided by operating activities: Depreciation and amortization Changes in assets and liabilities: Accounts receivable ) Prepaid expenses and other assets ) Other long-term assets — ) Accounts payable and accrued expenses ) ) Deferred rent ) Net cash provided by operating activities Investing Activities: Purchases of property and equipment ) ) Net cash used in investing activities ) ) Financing Activities: Proceeds from borrowings on line of credit — Payment on line of credit — ) Distributions ) ) Net cash used in financing activities ) ) Net increase (decrease) in cash ) Cash and cash equivalents, at the beginning of year Cash and cash equivalents, end of year $ $ Supplemental disclosure of cash flow information Cash provided for interest $ $ The accompanying notes are an integral part of these combined financial statements. 7 CYBER VENTURES, INC. AND AUTOTROPOLIS, INC. NOTES TO THE COMBINED FINANCIAL STATEMENTS DECEMBER 31, 2 NOTE 1 – Business Description and Significant Accounting Policies Organization and Operations Autotropolis, Inc. and Cyber Ventures, Inc. are privately-held Florida corporations (collectively, the “Company”).The stockholders of each of these corporations have elected the S corporation status under the provisions of the federal and state tax code. Prior to the acquisition (see Note 7), the two corporations operated under common ownership in Tampa, Florida and shared operating staff and other administrative and operational resources.Cyber Ventures, Inc., through proprietary content, generates and sell in-market consumer automotive purchase requests.Autotropolis, Inc., through its Autotropolis.com website, provides new car purchase requests and related digital products directly to automotive dealers. Cyber Ventures, Inc. was incorporated in Florida in 2003 and Autotropolis, Inc. was incorporated in Florida in 2006. The principal corporate offices are located in Tampa, Florida. Basis of Presentation The combined financial statements include the accounts of Cyber Ventures, Inc. and Autotropolis, Inc. Use of Estimates The preparation of financial statements in conformity with accounting principles generally accepted in the United States requires the Company to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. On an ongoing basis, management evaluates its estimates, including those related to (i) the collectability of customer accounts; (ii) useful lives of tangible assets; and (iii) the recognition and disclosure of contingent liabilities.These estimates are based on historical data and experience, as well as various other factors that management believes to be reasonable under the circumstances, the results of which form the basis for making judgments about the carrying value of assets and liabilities that are not readily apparent from other sources.Such estimates often require the selection of appropriate valuation methodologies and models, and significant judgment and assumptions.Actual results may differ from those estimated under different assumptions or circumstances. 8 CYBER VENTURES, INC. AND AUTOTROPOLIS, INC. NOTES TO THE COMBINED FINANCIAL STATEMENTS DECEMBER 31, 2 Cash and Cash Equivalents The Company considers all highly liquid investments with an original maturity of 90 days or less at the date of purchase to be cash equivalents. Cash and cash equivalents represent amounts held by the Company for use by the Company, and are recorded at cost which approximates fair value. Concentrations of Credit Risk Financial instruments, which potentially subject the Company to concentrations of credit risk, are primarily cash and cash equivalents and accounts receivable.The Company maintains its cash balances in the form of bank demand deposits and money market accounts with financial institutions that management believes are creditworthy.The Company may be exposed to credit risk.The Company has not established an allowance for uncollectible accounts as historically their receivables have been 100% collectible. The Company records reductions to revenue for estimated adjustments for services that do not meet the customer requirements in the same period that the related revenue is recorded. Concentration of Customers The following customers account for more than 10% of accounts receivable (billed and unbilled) and 10% of revenue at December 31, 2009 and 2008 and for the years then ended: December 31, Revenue: Customer A 39
Exhibit AMENDMENT TO BUSINESS RELATIONS AGREEMENT THIS AMENDMENT TO BUSINESS RELATIONS AGREEMENT, dated as of September 23rd, 2008 by and between American Biltrite Inc., a Delaware corporation (“ABI”) and Congoleum Corporation, a Delaware corporation (“Congoleum”); WITNESSETH: THAT WHEREAS, ABI and Congoleum are parties to a Business Relations Agreement, dated as of March 11, 1993 (the “Business Relations Agreement”), as amended August 9, 1997, and as renewed annually through March 11, 2008, and as amended March 11, 2008, pursuant to which Congoleum granted to ABI the exclusive right and license (except as to Congoleum itself) to distribute Congoleum’s vinyl, vinyl composition and other floor tile in Canada, subject to certain terms and conditions set forth in the Business Relations Agreement, as amended; NOW, THEREFORE, in consideration of the agreement set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Extension of Term.The term of the Business Relations Agreement is renewed until the earlier of (a) the effective date of a plan of reorganization for Congoleum Corporation, et al., following a final order of confirmation, or (b) June 30, 2. Ratification.Each of ABI and Congoleum hereby ratifies and confirms all of the terms and provisions of the Business Relations Agreement, as amended hereby. 3. Counterparts.This Amendment to Business Relations Agreement may be executed in one or more counterparts, each of which shall be an original but all of which shall collectively constitute a single instrument. IN WITNESS WHEREOF, the parties hereto have executed and delivered this Amendment to Business Relations Agreement as of the date first above written. AMERICAN BILTRITE INC. By: _/s/ Richard G. Marcus Name:Richard G. Marcus Title:President CONGOLEUM CORPORATION By: /s/ Roger. S. Marcus Name:Roger S. Marcus Title:Chief Executive Officer
Title: Went to the dentist 3 weeks ago and I still can't feel my tongue Question: I went to the dentist for a routine filling and the dentist hit my lingual nerve. They brushed it off for a few days, then sent me to their dental surgeon who confirmed she caused nerve damage. This essentially means I have constant pins and needles in my tongue now. The surgeon said it could take up to 10 months to heal completely. Think there’s enough of a case for dental litigation? Answer #1: That's considered a normal risk of anesthesia, and part of the informed consent you likely signed, so you likely don't have much of a case. Especially since they didn't neglect you and referred you to a specialist. Edit: also, since you are feeling pins and needles, that is a sign the nerve is healing Answer #2: It wouldn't hurt to speak with a medical malpractice attorney. They provide free consultations and work on contingency. EDIT: As others noted, it's probably not medical malpractice though.Answer #3: Dental hygienists here ( I give anesthesia and have 20 years experience). This is a rare, but known risk anytime someone gets dental anesthesia. Yet, people generally prefer to be numb rather than lose the tooth or have a procedure that is intolerable from pain. Sadly, this isn't operator error, so no way to prevent it. Patient may have had anatomy that is different from the average too. Please understand that your dentist did absolutely nothing wrong or unusual. Unfortunately this is just something that will probably happen once in a career ( far more if you are an oral surgeon). It will get better SLOWLY. Most likely you'll notice a difference in 6 months. What you can do to prevent this is just brushing and flossing daily. Using fluoride toothpaste ( rx strength if you're cavity prone/ high risk). You can also request an in office fluoride treatment which protects you from cavities for 3 months.
Exhibit 10.1(5) EXECUTION COPY AMENDMENT NO. 5 TO THE UPS RETIREMENT PLAN AS AMENDED AND RESTATED EFFECTIVE JANUARY 1, 2010 WHEREAS, United Parcel Service of America, Inc. (“UPS”) and its affiliated corporations established the UPS Retirement Plan (“Plan”) for the benefit of its employees, in order to provide benefits to those employees upon their retirement, disability, or death, effective as of September 1, 1961; and WHEREAS, the Plan, as adopted and amended from time to time, was most recently amended and restated in its entirety, effective as of January 1, 2010; and WHEREAS, the Plan was most recently amended by Amendment No. 4; and WHEREAS, UPS desires to amend the Plan to: (i) change the definition of Compensation to change the method of calculating Eligible MIP Compensation; (ii) provide that a Participant who becomes disabled while performing qualified military service shall be entitled to the disability benefit provided under the Plan had the Participant resumed and then terminated employment on account of his or her disability; (iii) provide retiree medical benefits for certain participants, generally with 25 or more years of service, to clarify that an incapacitated child may be a Covered Dependent, to clarify the time for establishing RRA accounts and effective January 1, 2013 to create separate reimbursement accounts for incapacitated dependents age 65 or older; (iv) provide that a single participant's beneficiary will receive a survivor annuity if he or she dies within 90 days of the annuity starting date; (v) provide for the transfer of assets and liabilities attributable to certain UPS Freight employees to the UPS Pension Plan; and (vi) insert an addendum to comply with the requirements of the Puerto Rico Internal Revenue Code of 2011. NOW THEREFORE, pursuant to the authority vested in the Board of Directors by Section 7.1 of the UPS Retirement Plan (the “Plan”), the Plan is hereby amended, as follows: 1.Section 1.1(h)(v), Terminated and Rehired Employees, is hereby amended, effective as of January 1, 2010, to read as follows: (v) Terminated and Rehired Employees. An employee who was employed as an Employee on December 31, 2007 will continue to earn Benefit Service described in this Section 1.1(h) after 2007 for all purposes as long as he remains employed as an Employee, but an Employee who ceases to be employed as an Employee whether as a result of termination of employment or a transfer to a non-Employee position will cease to earn Benefit Service credit after such termination or transfer except as provided in this Section 1.1(h)(v). An Employee who is transferred to a non-Employee position (whether on, before or after January 1, 2008) and then is transferred back to an Employee position or rehired as an Employee on or after January 1, 2008 and who has not commenced benefits under a Final Average Compensation Formula or the Pre-2006 Motor Cargo Formula shall continue to earn Benefit Service as described in Section 1.1(h) following such transfer or rehire solely for purposes of determining early retirement subsidies, but not benefit accrual, under a Final Average Compensation Formula or the Pre-2006 Motor Cargo Formula for the benefit accrued before he terminated service or transferred to the non-Employee position until he terminates employment with the Employer Company and all Related Employers. 2. Section 1.1(o), Compensation, is hereby amended, effective as of January 1, 2012, to read as follows: (o) “Compensation” means, generally, remuneration currently earned and actually paid by an Employer Company or a domestic Related Employer to an employee who is a Participant in the Plan, and reported on such employee's Form W-2 for the applicable calendar year, including the items described in Section 1.1(o)(i) but excluding the items described in Section 1.1(o)(ii) and subject to the limitations of Sections 1.1(o)(iii) and (iv). (i) Inclusions. Compensation shall include: (A) Basic salary or wages (without reducing wages to account for the Participant's elective deferral of a portion of his salary or wages, if any, pursuant to a cash or deferred arrangement described in Code § 401(k), a plan described in Code § 125 or the UPS Deferred Compensation Plan; (B) Overtime pay; (C) Certain incentive and bonus payments; (D) Effective January 1, 2011, Eligible MIP/IMIP Compensation for such Plan Year; and (E) Effective before January 1, 2011, the value of awards made pursuant to the UPS Managers' Incentive Plan or management incentive awards under the United Parcel Service, Inc. Incentive Compensation Plan or the United Parcel Service, Inc. UPS 2009 Omnibus Incentive Compensation Plan. Notwithstanding anything to the contrary in the immediately preceding sentence, effective for management incentive awards made under the United Parcel Service, Inc. Incentive Compensation Plan on or after November 1, 2005 or under the United Parcel Service, Inc. 2009 Omnibus Incentive Compensation Plan, Compensation shall include the value (as of the award date) of the restricted stock unit portion of the award, even if unvested and not reported on the employee's Form W-2 related to the year of the award. (ii) Exclusions. Compensation shall not include any other payments received by the Participant, including, but not limited to, the following, notwithstanding that such payments may be included in the Participant's Form W-2 for the applicable year: (A) Payments in the nature of compensation from an insurance carrier, from a state unemployment or worker's compensation fund, or from any health and welfare or other benefit program or plan maintained by an Employer Company or a Related Employer other than as described in Sections 1.1(o)(i)(D) or (E); (B) Disability payments from an insurance carrier, a state disability insurance fund, this Plan or any other disability plan maintained by an Employer Company or a Related Employer; (C) “Foreign service differentials” or other supplemental payments made by an Employer Company or a Related Employer to a Participant working outside his country of citizenship on account of such foreign service; (D) Payment or reimbursement by an Employer Company or a Related Employer of relocation expenses incurred by a Participant or his family; (E) The value of employee fringe benefits provided by an Employer Company or a Related Employer, including but not limited to the payment of life insurance premiums, whether or not the value of such fringe benefits is includable in an employee's taxable income; (F) Payments made under deferred compensation plans or programs except to the extent included under Sections 1.1(o)(i)(D) or (E); (G) Employer contributions to any pension, profit-sharing or stock bonus plan to which the Employer Company or a Related Employer contributes; (H) Employer contributions to any welfare benefit plan to which an Employer Company or a Related Employer contributes; (I) Income attributable to awards under the UPS Stock Option Plan, the United Parcel 2009 Omnibus Incentive Compensation Plan except to the extent included under Sections 1.1(o)(i)(D) or (E); and (J) Effective January 1, 2006, bonuses paid pursuant to retention agreements paid in connection with mergers or acquisitions and any other bonuses or payments that are not directly related to the performance of the Participant's duties (1) any bonuses paid under a general bonus payroll code; (2) gift card awards; (3) loss prevention awards; (4) referral bonuses; and (5) sales lead incentive bonuses. (iii) Definitions. The following capitalized terms shall have the following meanings for purposes of this Section 1.1(o): (A) 2010 MIP Compensation -- means that portion of a Participant's Compensation for 2010 attributable to Section 1.1(o)(i)(E). (B) Annualized Salary -- means (I) for Participants in the UPS Management Incentive Program, the monthly rate of base salary determined as of December 1 multiplied by 12 and (II) for Participants in the UPS International Management Incentive Program, the rate of pay for a single fixed pay installment determined as of December 1 multiplied by the number of mandatory fixed pay installments for the year. (C) Eligible MIP/IMIP Compensation (1) General. Eligible MIP/IMIP Compensation means for each Participant for each Plan Year the sum of (I) the value of the ownership incentive award under the MIP or IMIP transferred to or on behalf of the Participant in that Plan Year and (II) the value of the Participant's Performance Incentive Award transferred to or on behalf of the Participant in that Plan Year not in excess of the Performance Incentive Award Limit. (2) Special Rules for 2011 and 2012. Notwithstanding the preceding paragraph (1) each Participant (I) who either was credited with 2010 MIP Compensation or is an eligible employee under the MIP or IMIP for 2011 and (II) who is employed as an Employee with an Employer Company on December 31, 2011 shall be deemed to have Eligible MIP/IMIP Compensation in 2011 equal to the greater of his 2010 MIP Compensation or any performance incentive award under the MIP or IMIP transferred to him in 2011. Additionally, any portion of the performance incentive award for the 2011 performance year transferred to a Participant in 2011 also shall be taken into account as Eligible MIP/IMIP Compensation in 2012. (3) Valuation. Except as provided in paragraph (2), the value of an award under the MIP or IMIP in any Plan Year shall be equal to the gross amount (in U.S. dollars) of the award transferred to or on behalf of the Participant in that Plan Year without regard to whether the award is paid in cash, shares of Class A common stock, restricted performance units or deferred under another retirement plan. (D) IMIP -- means the UPS International Management Incentive Program, as effective as of January 1, 2011 and as thereafter amended. (E) Legacy MIP Percentage -- means for Plan Years beginning on or after January 1, 2012, for each Participant the percentage described in Appendix O for his or her job group as determined based on his or her classification as of the Record Date in the preceding Plan Year. (F) MIP -- means the UPS Management Incentive Program, as effective as of January 1, 2010 and as thereafter amended. (G) MIP Factor -- means the factor expressed as a percentage determined by the UPS Salary Committee to reflect performance with respect to the MIP business elements identified for the MIP plan year. (H) Performance Incentive Award -- means for each Plan Year the performance incentive award under MIP or IMIP transferred to or on behalf of the Participant in that Plan Year. (I) Performance Incentive Award Limit -- means (1) for Plan Years beginning before January 1, 2012, the product of (a) 34%, (b) the Participant's Annualized Salary for the preceding Plan Year and (c) the MIP Factor for the preceding Plan Year, (2) for the Plan Year beginning January 1, 2012, the greater of (a) the product determined under (1) above and (b) the product determined under (3) below and (3) for Plan Years beginning on or after January 1, 2013, the product of the Legacy MIP Percentage and the value of the Performance Incentive Award. (J) Record Date -- means December 1 or such other record date as is determined under the MIP for each Participant who is eligible for a MIP award or under the IMIP for each Participant who is eligible for an IMIP award. (iv) Limitations. In no event shall the Compensation of any participant taken into account under the Plan for any Plan Year exceed the applicable dollar amounts for such Plan Year determined under Code § 401(a)(17) increased by the applicable cost-of-living adjustment, if any, for the calendar year sanctioned by Code § 401(a)(17). For Plan Years commencing before January 1, 1997, in determining the Compensation of a Participant, the rules of Code § 414(q)(6) (as in effect immediately prior to January 1, 1997) shall apply, except that in applying such rules, the term “family” shall include only the Participant's Spouse and any lineal descendants of the Participants who have not attained age 19 before the close of the Plan Year. If, as a result of the application of such rules the applicable Compensation limitation is exceeded, then such limitation shall be prorated among the affected individuals in proportion to each such individual's Compensation as determined under this Section prior to the application of this limitation. In determining a Participant's Final Average Compensation, the $200,000 Compensation limitation shall apply retroactively with respect to Compensation earned prior to 2002 by a Participant with at least one Hour of Service on or after January 1, 2002. Similarly, the $150,000 Compensation limitation shall apply retroactively with respect to Compensation earned prior to 1994 by a Participant with at least one Hour of Service on or after January 1, 1994 (but without an Hour of Service on or after January 1, 2002) and the $200,000 Compensation limitation in effect for 1989 shall be applied retroactively with respect to Compensation earned prior to 1989 by a Participant with at least one Hour of Service on or after January 1, 1989 (but without any Hours of Service on or after January 1, 1994). However, a Participant's Benefit shall not be less than that which had accrued or earned as of December 31, 2001 (December 31, 1993 in the case of a Participant without at least one Hour of Service on or after January 1, 2002 or December 31, 1988 in the case of a Participant without at least one Hour of Service on or after January 1, 1994), based on his Benefit Service and Final Average Compensation determined as of such date. Solely for the purpose of avoiding a double proration, within the meaning of Department of Labor Regulations Section 2530.204-2(d), in calculating a Participant's benefit; to the extent that a Participant is credited with less than a full year's Benefit Service for a calendar year, then the Participant's Compensation taken into account for such year for purposes of the Final Average Compensation Formula shall be annualized by dividing such Compensation by the number of months of Benefit Service earned by the Participant for such calendar year and multiplying the result by 12. The Compensation of an individual who became a Participant as a result of an acquisition or merger shall include compensation, if any, earned prior to the date such individual first became a Participant to the extent described in the applicable Appendix or in the definition of Final Average Compensation and for purposes of determining Final Average Compensation, Compensation for periods prior to such acquisition or merger shall be determined in accordance with this Section unless otherwise specified in the Appendix applicable to such Participants. 3. The second paragraph of Section 5.4(e), Cash-Out Benefits, is hereby amended, effective December 1, 2012, to read as follows: Effective December 1, 2012, if following a Participant's termination of employment with the Employer Company and all Related Employers and his receipt of the notice described in Code § 402(f), the Present Value of his entire vested benefit does not exceed $5,000, the Committee shall, in lieu of such benefit, pay, without his consent, such Present Value in a lump sum. For a Portable Account Participant who previously received distribution of his or her entire Portable Account in a single lump sum, the preceding sentence shall apply to his or her remaining vested benefit under the Plan, if any. If a Participant to which this paragraph applies does not elect to have such lump sum payment paid directly to an eligible retirement plan in a direct rollover or to receive such lump sum payment directly, the Committee shall pay the lump sum payment in a direct rollover to an individual retirement account designated by the Committee. 4. Section 5.4(f), Repayment of Cash-Out, hereby is amended, effective as of January 1, 2010, to read as follows: (f) Repayment of Cash-Out. After a distribution described in Section 5.4(e), the Participant's service with respect to which the distribution was made shall be disregarded for purposes of the Plan unless, following reemployment, the Participant repays the amount of the distribution to the Trustee together with interest at the rate of 120 percent of the Federal mid-term rate, as in effect under Code § 1274 for the first month of the Plan Year in which the restoration occurs or otherwise in accordance with Code § 411(a)(7). Such repayment must be made on or before the earlier of (i) the date that is five years after the Participant's resumption of employment or (ii) the last day of a period of six consecutive Breaks in Service ending after the cash-out distribution. Notwithstanding the foregoing, a Participant may not repay any distribution of his Portable Account. 5. Section 5.6, Preretirement Survivor Annuity, hereby is amended, effective as of January 1, 2013, to add new subsections (c) and (d) to read as follows and to renumber existing subsections (c)-(g) as subsections (e)-(i): (c) Special Rule for Certain Married Participants and Those With Domestic Partners Who Die Within Ninety Days of the Annuity Starting Date. Notwithstanding the forgoing, if each of the following conditions is satisfied, the amount of the Preretirement Survivor Annuity, if any, payable under the Final Average Compensation Formula or the Pre-2006 Motor Cargo Formula will be based on the optional form of benefit elected by the deceased Participant immediately prior to his or her death rather than the Joint and 50% Survivor Annuity. Each of the following conditions must be satisfied before the first sentence of this Section 5.6(c) will apply: (i) The Participant must die while married or with a Domestic Partner; (ii) The Participant elected a Joint and 75% Survivor Annuity, Joint and 100% Survivor Annuity or other available form of joint and survivor annuity that (A) satisfies the requirements of a Qualified Joint and Survivor Annuity and (B) provides a survivor benefit greater than 50% of the life annuity payable to him or her and named his or her Spouse or Domestic Partner as his or her Beneficiary; (iii) The Participant submitted to the Committee all of the documentation required to make the election described in clause (ii) and no more than ninety (90) days before the elected Annuity Starting Date; and (iv) The Participant's death occurs after (A) attaining the Earliest Commencement Age and (B) within the ninety (90) day period ending on what would have been his or her Annuity Starting Date had he or she survived. For a married Participant, this § 5.6(c) is intended to satisfy the requirement of Treas. Reg. § 1.401(a)-20, Q&A 18. (d) Special Death Benefit for Single Participants who Die within Ninety Days of Annuity Starting Date. If a Participant who is not married and does not have a Domestic Partner dies after satisfying each of the following conditions, his or her Beneficiary will be entitled to the survivor benefit elected by such Participant as if the Participant had separated from service on the date of his or her death (or his or her actual date of separation, if earlier), survived to the Annuity Starting Date and died on the following day. Each of the following conditions must be satisfied before the first sentence of this Section 5.6(d) will apply: (i) The Participant must die while single and without a Domestic Partner; (ii) The Participant elected an available form of joint and survivor annuity or life annuity with a guarantee (iii) submitted to the Committee all of the documentation required to make the election described in clause (ii) no more than ninety (90) days before the selected Annuity Starting Date; and (iv) The Participant's death occurs (A) after the deceased Participant attained the Earliest Commencement Age and (B) within the ninety (90) day period ending on what would have been his or her Annuity Starting Date had he or she survived. 6. Section 7.8, Merger and Consolidation of Plan, Transfer of Assets, is hereby amended, effective December 31, 2012, to read as follows: Section 7.8 Merger and Consolidation of Plan, Transfer of Assets. (a) In the case of any merger or consolidation with, or transfer of assets and liabilities to, any other plan, provisions shall be made so that each Participant in the Plan on the date thereof (if the Plan then terminated) would receive a benefit immediately after the merger, consolidation or transfer which immediately prior to the merger, consolidation or transfer if the Plan had been terminated. (b) Effective on December 31, 2012 (the “Transfer Time”), all assets and liabilities of the Plan attributable to all Freight Employees (as defined below) shall be and hereby are transferred to and shall become assets and liabilities of the UPS Pension Plan. This transfer is evidenced by a Memorandum of Understanding executed by UPS Freight and by the Teamsters National UPS Freight Negotiating Committee (the “Teamster Committee”) dated October 23, 2012. Freight Employee means an individual identified in the Memorandum of Understanding between UPS Freight and the Teamsters National UPS Freight Negotiating Committee executed on October 23, 2012, which is incorporated by reference herein and for convenience is set forth below: (i) each current, former or retired Employee who is, or was, represented by the International Brotherhood of Teamsters; (ii) last earned a benefit in the UPS Pension Plan as of January 1, 2013 or the date of his or her termination of employment, if earlier; and (iii) has accrued a benefit under this Plan. 7. Section 10.11, USERRA, hereby is amended, effective as of January 1, 2013, to insert a new paragraph at the end of such Section, to read as follows: SECTION 11.12 - USERRA Effective January 1, 2013, notwithstanding any contrary provision in the Plan, in the case of a Participant who incurs a “disability” (as described in Section 1.1(r) or in the applicable Appendix) while performing qualified military service (as defined in Section 414(u) of the Code), such Participant shall be entitled to the disability benefit to which the Participant otherwise would have been entitled to under the Plan had the Participant resumed employment in accordance with chapter 43 of Title 38 of the United States Code on the day before the date of his or her Disability and then terminated employment on account of his or her Disability and such period of qualified military service (as defined in Section 414(u) of the Code) shall be deemed to be Benefit Service for purposes of determining the disability benefit. 8. Section 12.2(b), Covered Dependent, hereby is amended, effective as of January 1, 2011, to read as follows: (b) “Covered Dependent” means a Retired Participant's Spouse or Domestic Partner at the time of retirement (as described in the definition of Retired Participant), and a child of the Retired Participant or the Spouse or Domestic Partner of a Retired Participant who meets one of the following conditions: (i) The child is unmarried, is the child of a Retired Participant or the Retired Participant's Spouse or Domestic Partner, is under 19 years of age and is dependent upon the Retired Participant or the Spouse or Covered Dependent of a Retired Participant for his or her principal support and maintenance. Said child shall be covered up to the end of the calendar year in which he or she attains age 19. (ii) The child is unmarried, is the child of a Retired Participant or the Retired Participant's Spouse or Domestic Partner, is not covered under clause (i), is under 25 years of age, and is dependent on the Retired Participant or the Spouse or Covered Dependent of a Retired Participant for his principal support and maintenance, and is a full-time student. Said child shall be covered up to the end of the calendar year in which he or she reaches age 25 or ceases to be a full-time student, whichever shall first occur. (iii) The child is unmarried, is the child of a Retired Participant or the (i) or (ii), is "incapacitated" within the meaning of the UPS Retired Employees' Health Care Plan and is dependent on the Retired Participant or the Spouse or Covered Dependent of a Retired Participant for his or her principal support and maintenance or was so dependent while the Retired Participant was alive. The term child shall include an adopted child, step-child, or foster child who is dependent on the Retired Participant or the Spouse of the Retired Participant for his principal support and maintenance. In no event will the term Covered Dependent include any person who is an eligible Retired Participant himself nor any person who is employed full-time with an Employer Company. If both parents of any Covered Dependent child are eligible Retired Participants, then for the purposes of the coverage, the Covered Dependent child is considered as a Covered Dependent of only the Retired Participant whose birth date is the earlier in the calendar year. 9. Section 12.2(o), Retired Participant, is hereby amended, effective as of January 1, 2013 to read as follows: (o) “Retired Participant” is defined, for purposes of this Article XII, as an individual who satisfies at least one of the subsections (i) through (vii): (i) A Participant who (A) was actively working as an Employee until his Early, Normal or Postponed Retirement Date, or who retires pursuant to Section 13.1, (B) in the case of a Participant who first became an Employee on or after January 1, 1989, had at least ten (10) Years of Service (five (5) Years of Service in the case of a Participant retiring under the provisions of Section 13.1) and at least one Year of Service as a Participant in this Plan, and (C) retired from employment as an Employee and was thereupon immediately eligible to receive an Early, Normal or Postponed Retirement Benefit hereunder (including an Early Retirement Benefit under Section 13.1); (ii) A Participant who attained his Early Retirement Date (with, in the case of a Participant who first became an Employee on or after January 1, 1989, at least 10 Years of Service at least one of which was as a Participant in this Plan) or his Normal Retirement Date (with, in the case of a Participant who first became an Employee on or after January 1, 1989, at least 5 Years of Service at least one of which was as a Participant in this Plan) and then dies while still employed as an Employee; (iii) A Participant who has at least one Year of Service, one year as a Participant in this Plan, has been an employee of an Employer Company or a Related Employer for at least 25 Years of Service (30 Years of Service for deaths prior to January 1, 2008) and then dies while still employed as such an employee shall be considered a “Retired Participant” whose Covered Dependents are eligible to receive Medical Benefits in accordance with this Article; (iv) An individual who terminates employment as a result of ceasing to be eligible for his current job classification as the result of the application of a federal statutory or regulatory age limitation shall be eligible for Medical Benefits under this Article XII immediately upon termination of employment, provided, such individual has at least one Year of Service as a Participant in this Plan; (v) A Participant who terminated employment pursuant to the UPS Special Voluntary Separation Opportunity (“SVSO”) on or after January 31, 2007 but prior to March 1, 2007 and who is entitled to benefits under the SVSO; (vi) A Participant who (A) as of the time he terminates employment with all Employer Companies and Related Employers is a full-time Employee and has been approved for long-term disability benefits under the UPS Income Protection Plan (or a successor long-term disability benefits plan) and who remains “totally disabled” for purposes of the UPS Income Protection Plan (or successor plan) until his Early or Normal Retirement Date, (B) in the case of a Participant who first became an Employee on or after January 1, 1989, had at least ten (10) Years of Service and at least one Year of Service as a Participant in this Plan, and (C) is eligible to receive an early retirement benefit pursuant to Section 5.2(b) or a Normal Retirement Benefit; or (vii) A Participant who (A) is identified on Appendix P, (B) is actively working for an Employer Company or a Related Employer at his early, normal or postponed retirement date, (C) is eligible for an early, normal or postponed retirement benefit under another defined benefit plan sponsored or contributed to by UPS after September 1, 2011 and (D) is not eligible for retiree medical benefits under another plan sponsored or contributed to by UPS. Except as expressly provided in Sections 12.2(e)(i) through (vi) above, the following shall not be a Retired Participant: (A) A deferred vested Participant who terminated employment with an Employer Company prior to retirement; (B) An individual who first became an Employee on or after January 1, 1989 and who retired with less than 10 Years of Service with an Employer Company or less than One Year of Service as a Participant in this Plan; (C) An individual employed, at the time of his retirement, by an Employer Company pursuant to a collective bargaining agreement under which retirement benefits for the individual are to be provided under this Plan, but which does not specifically state that Medical Benefits are also to be provided for said individual under this Article XII. For clarification, a member of one of the locals of the A.F.L.-C.I.O., International Association of Machinists or International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (“IBT”) identified on Appendix A hereto, which may be amended by resolution of the Committee from time to time, is employed by an Employer Company at the time of his retirement and is eligible, by reason of a collective bargaining agreement, for retirement benefits under this Plan, he shall not be eligible for Medical Benefits under this Plan; (D) A Participant who is a Crewmember; or (E) A Participant who is still employed by an Employer Company or Related Employer. 10. Paragraph (e) of Section 12.10, Participant Contributions, is hereby amended, effective as of January 1, 2011, to read as follows: (e) The Retired Participant and his or her Spouse or Domestic Partner each may apply the DDB Balance to purchase Medical Benefits. If the Retired Participant has Covered Dependents who are children (including adult children who are Covered Dependents), they will be treated as a unit with the younger of the Retired Participant and his or her Spouse or Domestic Partner. If the Retired Participant does not have a Spouse or Domestic Partner, the Covered Dependents who are children (including adult children who are Covered Dependents) will be treated as a separate unit and the Retired Participant and his or her Covered Dependent unit each may apply the DDB Balance to purchase Pre-Medicare Eligible Coverage or Medicare Eligible Coverage. If the Retired Participant and his or her Spouse or Domestic Partner who is a Covered Dependent predecease the Retired Participant's Covered Dependents who are children (including adult children who are Covered Dependents), such Covered Dependents who are children will be treated as a separate Covered Dependent unit having the deceased Retired Participant's Pre-Medicare Eligible Coverage DDB Balance unless the Covered Dependent is eligible for a Retiree Reimbursement Account (“RRA”) , as described below. A bookkeeping account, the RRA, will be established for a Retired Participant or his Spouse or Domestic Partner, if any, for each Plan Year in which the Retired Participant or his or her Spouse or Domestic Partner is at least age 65 and eligible for Medicare as a result of his or her age. The RRA established for each of the Retired Participant and his or her Spouse or Domestic Partner who is at least age 65 will be credited with the lesser of (i) the Retired Participant's Medicare Eligible Coverage DDB Balance amount or (ii) the maximum RRA credit established by the Committee for that Plan Year. No RRA will be established for periods prior to the Retired Participant or his or her Spouse or Domestic Partner becoming age 65 and eligible for Medicare. Effective January 1, 2013, a RRA will be established for a Covered Dependent described in Section 12.2(b)(iii) who is a child upon such Covered Dependent becoming age 65 and eligible for Medicare. Any unused DDB Balance or balance to a RRA may not be carried forward from one Plan Year to a future Plan Year. 11. The Plan hereby is amended to insert a new Appendix O, Legacy MIP Percentage by Job Group, and a new Appendix P, Certain Participants Eligible for Retiree Medical Benefits, each as attached hereto, after Appendix N. 12. The Plan is hereby amended to insert a new Appendix Q, as attached, at the end of the Plan, effective January 1, 2011 or such later effective date as is specified in Appendix Q, solely for purposes of administering the Plan for employees who work in Puerto Rico and securing the Plan's tax qualification in Puerto Rico. 13. Except as amended by this Amendment No. 5, the Plan as in effect immediately prior to the date of this Amendment shall remain in full force and effect. IN WITNESS WHEREOF, the undersigned certify that United Parcel Service of America, Inc. based upon action by the Board of Directors on December 18, 2012 has caused this Amendment No. 5 to be adopted. ATTEST: UNITED PARCEL SERVICE OF AMERICA, INC. /s/ Teri P. McClure /s/ D. Scott Davis Teri P. McClure D. Scott Davis Secretary Chairman UPS RETIREMENT PLAN APPENDIX O LEGACY MIP PERCENTAGE BY JOB GROUP JOB GROUP SUBGROUP (If Any) LEGACY MIP PERCENTAGE [AMOUNTS OMITTED] [AMOUNTS OMITTED] [AMOUNTS OMITTED] UPS RETIREMENT PLAN APPENDIX P CERTAIN PARTICIPANTS ELIGIBLE FOR RETIREE MEDICAL BENEFITS Employee ID [AMOUNTS OMITTED] UPS RETIREMENT PLAN APPENDIX Q PUERTO RICO QUALIFICATION Solely for purposes of administering and securing its tax qualification in Puerto Rico, the Plan shall be subject to the following terms and conditions: 1. Definition of “Employer”: “Company. Effective as of January 1, 2011, 'Company' means United Parcel Service of America, Inc. and each affiliated employer (or a division or unit of an Affiliated Employer) which is designated as participating employer by the Company and which adopts the Plan, or that is deemed an employer under Section 1081.01(a)(14) of the PR Code.” 2. Definition of “Affiliated Employer”: “Affiliated Employer. Effective as of January 1, 2011, 'Affiliated Employer' shall mean any domestic corporation, trade or business other than the Company which joins the Company as a member of a controlled group of corporations, an affiliated services group or is under common control, as defined by Section 3. Definition of “Compensation”: “Compensation. For taxable years commencing on and after January 1, 2012, the maximum amount of compensation that shall be taken into account for purposes of computing contributions under the Plan, as well as discrimination testing and the limitations to benefits and contributions under Section 1081.01(a) of the PR Code, shall not exceed annually $250,000 for the Plan Year 2012, $255,000 for the Plan Year 2013 or any other amount established under Section 401(a)(17) of the U.S. Internal Revenue Code of 1986, as amended, or by the Puerto Rico Treasury Department through regulations or administrative determinations.” 4. Limitation on Plan Benefits: “Pursuant to Section 1081.01(a)(11)(A) of the PR Code, the annual benefits accrued by a Participant, determined as a straight life annuity with no ancillary benefits and under a plan that does not allow for participants' contributions nor rollover contributions, may not exceed the lesser of: (i) $200,000 for Plan Year 2012, $205,000 for Plan Year 2013 or any other limitation amount imposed under Section 415(b) of the U.S. Internal Revenue Code of 1986, as amended, for the applicable Plan Year; or (ii) 100% of the Participant's average annual compensation for the period of consecutive natural years (no more than 3) during which the Participant's compensation was the highest, or whatever other dollar limitation may be imposed by the PR Code or the Puerto Rico Treasury Department by the way of regulations or administrative determinations. This provision shall be effective for Plan years commencing on or after January 1, 2012.” 5. Direct Rollovers. (a) Notwithstanding any provision of the Plan to the contrary that would otherwise limit a distributee's election under this Section 5, a distributee, that due to his termination of employment, receives all or part of the value of his benefit in a single lump sum distribution, within a single taxable year, in a distribution that otherwise meets the requirements of Section 1081.01(b)(2)(A) of the PR Code, may elect at the time and in the manner prescribed by the Committee, to have the total amount of such distribution rolled over into another Puerto Rico qualified plan or Puerto Rico Individual Retirement Account (“IRA”), specified by the distributee. (b) Direct rollovers under this Section 5 shall be made in accordance with rules and procedures established by the Committee. (c) For purposes of this Section 5, a distributee may include (1) a Participant, and, to the extent permitted by PR Code or by the Puerto Rico Treasury Department, (2) a Participant's Spouse, or (3) an alternate payee under a qualified domestic relations order who is the Spouse or former Spouse of a Participant. (d) Solely for purposes of administering and qualifying the Plan in Puerto Rico, the terms 'Eligible Rollover Distribution' and 'Eligible Retirement Plan' shall mean: (i) Eligible rollover distribution: An eligible rollover distribution is any distribution of all or part of the balance to the credit of the distributee within a single taxable year of the distributee, as a result of the termination of employment of the distributee, and that otherwise meets the requirements of Section 1081.01(b)(2)(A) of the PR Code. (ii) Eligible retirement plan: An eligible retirement plan is an individual retirement account described in Section 1081.02(a) of the PR Code, an individual retirement annuity described in Section 1081.02(b) of the PR Code, or a qualified trust described in Section 1081.01(a) of the PR Code, that accepts the distributee's eligible rollover distribution. However, in the case of an eligible rollover distribution to the surviving spouse, an eligible retirement plan is an individual retirement account or individual retirement annuity. 6. Taxation of Lump Sum Distributions. (a) The taxation in Puerto Rico of any lump sum distributions made by the Plan to a terminated participant shall be governed by this Section 6. (b) Under Section 1081.01(b) of the PR Code, the distribution of the entire interest of a Participant in the Plan (in excess of his or her After Tax Contributions), within the same taxable year, and as a result of his or her termination of employment, shall be treated as a long term capital gain taxable at a 20% rate. However, if the Plan: (i) uses a trust organized in Puerto Rico or a Puerto Rico co-trustee which will act a paying agent; and (ii) invest no less than 10% of its assets (determined on an average daily basis) in the Plan Year of the distribution and the two preceding Plan Years, in certain assets treated as located in Puerto Rico (as defined in the PR Code and the regulations issued thereunder), the long term capital gain arising from the distribution will be taxed instead at a rate of 10%. 7. Merger, Consolidation, Transfer of Assets of the Plan. “In the case of any merger or consolidation of the Plan with, or transfer of assets or liabilities of the Plan to, any other plan, each Participant shall (if the Plan had then terminated) be entitled to receive a benefit immediately after such merger, consolidation or transfer which shall be at least equal to the benefit he would have been entitled to receive immediately before such merger, consolidation or transfer (if the Plan had then terminated). In the event of any of the above transactions, the Plan shall be subject to the tax qualification requirements of Section 1081.01(a)(3)(D) of the PR Code.” 8. These amendments will govern the administration of the Plan, including its tax qualification, to the extent they are applicable to a Participant employed in Puerto Rico (a “Puerto Rico Participant”). To the extent the Plan covers any Puerto Rico Participant, it will be administered pursuant to, and in compliance with, the requirements of Sections 1033.09 and 1081.01 of the PR Code.
EXHIBIT4.2 SOUTHCORP CAPITAL, INC. A NEVADA CORPORATION 750,000,, NO PAR VALUE This certifies that is hereby issued fully paid and non-assessable Shares of Common Stock of SouthCorp Capital, Inc., transferable on the books of the Corporation by the holder hereof, in person or by duly authorized Attorney upon surrender of this Certificate properly endorsed. In Witness Whereof, SouthCorp Capital has caused this Certificate to be signed by its duly authorized officers and its Corporate Seal to be hereunto affixed as of this day of 20. President Secretary
Exhibit 10.144.1 English Translation - Certain confidential information in this Exhibit 10.144.1 was omitted and filed separately with the Securities and Exchange Commission (“SEC”) with a request for confidential treatment by Inter Parfums, Inc. Commercial Lease Contract between GEMFI and INTER PARFUMS Exhibit 10.144.1 - English Translation - Certain confidential information in this Exhibit 10.144.1 was omitted and filed separately with the Securities and Exchange Commission (“SEC”) with a request for confidential treatment by Inter Parfums, Inc. TABLE OF CONTENTS ARTICLE PAGE 1. DEFINITIONS-INTERPRETATIONS 7 2. TERMS AND CONDITIONS FOR THE CONSTRUCTION AND DELIVERY OF THE PREMISES 11 3. LEASE 18 4. DURATION - DATE OF ENTRY INTO FORCE 18 5. USE OF THE BUILDING 19 6. RENT - CHARGES AND ACCESSORIES - VAT - PAYMENT - INDEXATION - SECURITY DEPOSIT 20 7. CHARGES AND CONDITIONS 24 8. RESTORATION OF THE PREMISES AT THE END OF THE LEASE 40 9. RESOLUTORY CLAUSE 40 10. TECHNOLOGICAL OR NATURAL RISK PREVENTION PLAN 41 11. APPLICATION OF PAYMENTS 41 12. MODIFICATIONS - TOLERANCE - INDIVISIBILITY 42 13. REGISTRATION 42 14. NOTIFICATION – ELECTION OF RESIDENCE – TIME PERIODS 42 COMMERCIAL LEASE AGREEMENT BETWEEN: The company called "GEMFI" limited liability company with capital of 150,000 euros whose head office is located at 28 bis, rue Barbès - 92120 Montrouge registered in the Register of Commerce and Companies of Nanterre under the number B 339 753 72 Represented by Mr. Serge SAINT-GENES, manager, Hereinafter referred to as "THE LESSOR" OF THE FIRST PART AND: The company called "INTER PARFUMS" Limited company (S.A.) under French law with capital of 49,115,931 euros whose head office is located at 4 Rond-Point of the Champs-Elysées in 75008 PARIS, registered in the Register of Commerce and Companies of Paris under the number B 350 219 382, Represented by Mr. Philippe Benacin, President, duly empowered Hereinafter referred to as "THE LESSEE" OF THE SECOND PART The Lessor and the Lessee are hereinafter referred to individually as a "Party" and collectively as the "Parties". 3 HAVING PREVIOUSLY ESTABLISHED THE FOLLOWING: Designation of the Building (a) Designation of a plot of land located at Criquebeuf sur Seine (27340), the "Le Bosc Hetrel" business park and land registry section ZD number 251, 252, 254, 256, 258, 260, 262, 264, 266, 268, 56 , 57, 58, 59, 62, 63, 64, 65, 133, 135, 136, 137, 194, 270 with an area of [----------]1. (b) Designation of the Building The building will represent 1/ In a first phase, an area of 31.006,16 m² net floor area comprising: - Warehouse: 30,147.51 m² net floor area with 5 cells and technical areas, - Offices and Common Areas: 858.65 m² net floor areas, - Parking spaces for light vehicles: 164 The delivery date for this phase is scheduled for April 15, 2011 2 / In a second phase: The leased area will be extended by one or two new cells of [----------²]2 for warehouse use for products of the same categories as those of the first section. This extension option is granted to the Lessee for a time period expiring April 30, 2012. Upon exercise of this option by the LESSEE, the said extension will be delivered no later than April 30, 2013.The leased area will be extended by an extension of one OR two new cells for warehouse use of [----------]3. all in accordance with the plans and descriptions attached hereto as Appendices 1 and 2. Administrative authorizations Within the context of the construction of the building, the following administrative authorizations have been requested: (a) Authorization / Declaration under the regulations on the classified facilities (i) Request for an operating license as of July 4, 2008 supplemented by a dispatch dated July 16, 2009 and a new filing dated April 30, 2010 to create and operate a warehouse allowing the storage of products of the nomenclature of the classified facilities according to the type and quantities appearing in the table below. Storage cells. The storage area will be divided into eight sections. Cells 1510/2662/2663 Cells 1412/1432 Loading Area LOT 1 LOT 2 LOT 3 LOT 4 LOT 5 LOT 6 7 8 TOTAL ---------------]4 1 Confidential information omitted and filed separately with the SEC with a request for confidential treatment by Inter Parfums, Inc., no. 10.144.1.1. 2 Confidential information omitted and filed separately with the SEC with a request for confidential treatment by Inter Parfums, Inc., no. 10.144.1.2. 3 Confidential information omitted and filed separately with the SEC with a request for confidential treatment by Inter Parfums, Inc., no. 10.144.1.3. 4 Confidential information omitted and filed separately with the SEC with a request for confidential treatment by Inter Parfums, Inc., no. 10.144.1.4. Page 4 of 46 The said cells will allow the storage of products corresponding to the categories of the classified facilities for the items and quantities in the table below Category Description of Activity Installation capacity Rules 1412-2-a Storage in manufactured reservoirs of flammable gas liquids (aerosols), the total quantity possible of being present greater than or equal to 50 tons [----------- Authorization 1432-2-a Storage in manufactured reservoirs of flammable liquids, the capacity equivalent being greater than 100 m3 Authorization 1510-1 Covered storage (storage of products in quantities greater than 50 t) of a volume greater than or equal to 50,000 m3 Authorization 1530 Storage of wood, paper, cardboard or similar combustible material, the quantity stored being greater than 20,000 m3 Authorization 266 Storage of polymers (plastic materials, rubber, elastomeres, resins and synthetic adhesives), the volume possible of being stored being greater than 1,000 m3 Authorization 2663-1 Pneumatics and products of which 50% at least of the total unitary mass is made up of polymer (storage of): 1. In the alveolar or expanded state such as latex foam, polyurethane, polystyrene etc. Authorization 2663-2 up of polymers (storage of): 2. In other cases and for pneumatics, the volume possible of being stored is greater than 10,000 m3 Authorization 2910-A-2 Installation of combusion which consumes exclusively natural gas Not submitted 2925 Battery charging area with a maximum amount of continuous current which is greater than 50 kW ------------]5 Declaration 5 Confidential information omitted and filed separately with the SEC with a Page 5 of 46 In terms of the additional filing dated April 30, 2010, modifications were made to the initial request to adapt the required license to the Lessee's mode of operation. This means the integration of the option to store flammable materials in the entire area of the cells provided however that the height does not exceed 5m, that the flammables are contained in glass vials with a capacity not exceeding 100 ml and for an overall quantity of less than 190 liters per pallet in accordance with the advice of the CNPP of December 18, 2009. (b) Building Permit (i) Application for a building permit dated July 18, 2008 for construction on the parcels constituting the plot of land of a building with [------------]6 of net surface area (ii) Building permit order issued December 2, 2008 under number 027 188 08 A0022 and authorizing the construction of the said building, final in the absence of claims by third parties and suspension by the administrative authority, hereinafter appended as Appendix 4. The said building permit has been posted on the plot as has been noted in a statement prepared by Mr. THIERRY, Bailiff in Louviers on 15 December 2008. It is recalled that before the date of signature of this Lease, the Lessee has provided the following documents to the Lessor: - copy of the application for the building permit and its appendices, - copy of the building permit order, - copy of the current application for an operating license. The Lessor declares have full knowledge of the elements and information contained in the above mentioned documents of which he declares himself satisfied. 6 Confidential information omitted and filed separately with the SEC with a request for confidential treatment by Inter Parfums, Inc., no. 10.144.1.6 Page 6 of 46 IT HAS BEEN DECLARED AND AGREED AS FOLLOWS: 1. DEFINITIONS-INTERPRETATIONS 1.2 Force of Definitions The terms and expressions set out below in the body of this Contract and in its appendices shall have the following meanings: "Appendix(ces)" means the appendix(ces) to this Contract. "Building Architect" means the architect designated by the Lessor to monitor the status of the Building and the work of any nature whatsoever which may be carried out in the Building. "Operating license" means the authorization to be issued by the Prefecture in accordance with the request, a copy of which has already been provided to the Lessee as well as that arising out of the additional request appearing in Appendix 3. "Lease" means the commercial lease subject to Articles L. 145-1 to L. 145-60 and R.145-1 to R.145-33 of the Commercial Code (as well as the provisions not repealed of Decree No. 53-960 of September 30, 1953), subject of this Contract as well as all amendments to it. "Commercial Lease" means a commercial lease subject to Articles L. 145-1 to L. 145-60 and R.145-1 to R.145-33 of the Commercial Code (as well as the provisions not repealed by Decree No. 53-960 of September 30, 1953). "Lessor" means the person named in the beginning of this document in the first part, owner of the Building, and any beneficiary thereof. "Building" means the building more fully described in paragraph (b) of the above preamble. "Legitimate Reason(s) for Delay" means: - Days of bad weather where work is stopped; to be taken into account, these days of bad weather must have caused a real work stoppage declared by the prime contractor for the work - A record from the weather station closest to the worksite must show proof of one of the following three conditions: • Cold weather: temperatures at or below 0° C or uninterrupted snowfall • for the cranes for lifting equipment and aerial work on the roof and exterior facades, winds of 50 km/h between 6 am and 6 pm; or the presence of non-constant gusts • rainy weather before the building is enclosed and covered, or for any work outside, precipitation greater than 10 ml of rainfall between 6 am or rainfall exceeding 20 cm in the previous24 hours - Delays due to a general strike or specific activities related to the building construction industry or its associated industries, except strikes specific to the worksite. - Delays due to an interruption in supplies for the worksite because of transportation strikes, demonstrations or requisitions by public authorities - Administrative or legal injunctions to suspend or stop the work or to reduce the hours the worksite is open (as long as these are not based on negligence attributable to the Vendor or those involved in the construction operation). - Discord arising from hostilities, acts of war, riots, terrorism, disasters and revolutions in so far as these events have actually led to a delay in the progress of the work. Page 7 of 46 - Fires and disasters affecting the site, unless they are due to fault(s) or negligence of those involved in the construction operation. - Cases of force majeure. These events may in any case only be regarded as legitimate reasons for delay if they are reported to the Lessee by registered letter with delivery confirmation within 8 days of their occurrence and provided that a new delivery schedule is also notified. The implementation schedule for the delivery of the Building provided in this lease already includes a total number of 10 days of bad weather. Considered as a case of force majeure are any of the following events that are unforeseeable, uncontrollable and totally external to the person of the Seller and or Lessor, and to any of their contractors and/or their agents, and more generally any person authorized to enter the site by the Seller and/or his contractors and/or agents. Without the list being limiting, Parties consider notably as a case of force majeure, the following events: lightning, hurricanes, floods, earthquake or any other natural phenomena of a catastrophic nature, falling aircraft, general breakdown of the energy supply necessary to carry out the construction, popular movements, direct or indirect effects of explosions, releases of heat, radiation from the transmutation of the nucleus of atoms or radioactivity, radiation effects caused by particle acceleration. "Charges and Accessories" means all amounts charged to the Lessee under this Contract in addition to the Rent in principal, including, and without this list having a limiting nature, Common Expenses and the amounts described in articles 78and 9 "Common expenses" means the common expenses such as: - fees and honorariums for the Building manager, fees and honorariums for AFUL, equipment for the area and others ... - expenses related to the operation of the Building and its equipment and its maintenance, as well as its consumption such as: water, electricity, gas, steam, chilled water, telephone, or others, expenses related to compliance of the Building with Applicable Regulations, the cost of insurance premiums, Real Estate Taxes and charges to which the building is subject, the costs of labor, wages, benefits and payroll taxes for the personnel responsible for carrying out tasks for services or benefits provided in the Building, etc.. "Contract" means all of the documents comprising this Contract, all of its appendices to which reference is made, any amendments or modifications (to the exclusion of all other documents and particularly those prepared or exchanged between the parties prior to the date hereof and the signing of this Contract) all of which have been signed and approved by the Parties. "Delivery Date" means the date of delivery which is April 15, 2011. "Effective Date of the Lease" means the date the lease comes into effect, which is June 1, 2011. "Technical Description" means the description detailing the technical specifications, standards, the quality of materials and equipment to be used to construct the building as well as their mode of use and the general conditions for their implementation, of which a copy is attached as Appendix 2. Page 8 of 46 "Use" means the use that can be made of the Building and the activities that can be performed in it in accordance with Article5 of this Contract. "State of the Premises" means the state of the premises established in the presence of both the Lessor and the Lessee or by judicial bailiff in the presence of the Lessor and Lessee, which will be drawn up as an inventory on the day of delivery. "Expert" means the person designated by the parties to settle disputes related to the state of the Building at the time of delivery. "Force Majeure" is a case of force majeure, strikes, social movements, fires, floods and other unpredictable events or uncontrollable incidents beyond the will of one of the parties, disturbances resulting from riots, revolutions, wars or disasters. "Group" means the group within the meaning of Article L. 233-3-I of the Commercial Code. "Building” means the building more fully described in paragraph0 of the preamble above, the Common Parts, as well as all facilities and equipment for the use of the Building or the Common Parts of it and in which the Premises are located. "Late Payment Interest" means the interest payable on any amount owed by the Lessee to the Lessor under this Contract and not paid by the due date, at the legal rate in effect in France on the date the payment is due, plus [-------------]%7. "INSEE" means the National Institute of Statistics and Economic Studies. "Day(s)" means calendar day. "Delivery" means the making available of the Premises after completion by the Lessor for the benefit of the Lessee, in accordance with the conditions set out in Article 2.3. "Premises" means all or part of the Building more fully described and identified on the plans and in the description forming Appendix 1 and 2 and as far as these premises extend, continue and include as well as all of the facilities and equipment intended for the exclusive use of the said Premises. "Rent" means the annual rent excluding taxes and excluding Charges and Accessories payable at any given time under the Lease, as set out in the provisions of Article 6. "Availability" means the progressive availability of the Premises from February 15, 2011 until April 15, 2011 by cells and subject to proof of insurance by the Lessee. "Party(ies)" means each party or all parties to the Contract. "Common Areas" means the common parts including Building facilities and equipment, as defined in Appendix 5 (list of common areas to be established including facilities and areas for sprinklers, heating, caretaking ...) . 7 Confidential information omitted and filed separately with the SEC with a request for confidential treatment by Inter Parfums, Inc., no. 10.144.1.7. Page 9 of 46 "Lessee" means the person named at the beginning of this document in the second part, or any assignee thereof as permitted pursuant to the provisions of this Contract, to the exclusion of all other persons. "Internal regulations" means as far as necessary the internal regulations defining the organization and management of the Building. "Applicable Regulations" means all treaties, directives, laws, decrees, regulations, instructions, orders, circulars, codes, customs, practices, rules and standards of the industry, as well as the decisions, orders, injunctions, instructions and recommendations of the competent authorities, as applicable both to the Building and to the Parties, including notably the area of environmental protection, hygiene, public health, safety of goods and persons applicable in matters of construction, buildings, operations and occupancy of real estate property. "VAT" means the value added tax. 1.3 Interpretation Under this Contract and unless the context otherwise requires it: (a) references to articles, paragraphs and Appendices shall be construed as being references to articles, paragraphs and Appendices of this Contract and the references to this Contract including its Appendices; (b) references to a time of day, unless specifically indicated, refer to Paris time; (c) reference to a person includes his assignees and subsequent successors; and (d) reference to a document means this document, as it may be amended, replaced by novation or completed. The term Lessor and Lessee defines the legal entity of the contractor, regardless of the number, the person or legal entity thereof, refers to his direct involvement or by proxy, and implies, unless otherwise expressly stated, solidarity in cases of multiple people, responding to the same denomination. 1.4 Two parts The Parties agree to establish the Contract in two parts: 1st PART: TERMS AND CONDITIONS OF CONSTRUCTION AND DELIVERY OF THE PREMISES [BUILDING] 2nd PART: CONDITIONS APPLICABLE FROM THE DATE THE LEASE COMES INTO EFFECT Page 10 of 46 1st Part Conditions applicable during the construction period 2. The following is agreed upon concerning the carrying out of the construction work and its delivery. 2.1 Time periods - specific conditions relative to the time period for Delivery comprising the first stage The Lessor, pursuant to this Contract, is committed towards the Lessee to construct the Building [the Premises] in accordance with the Technical Specification in two phases. The Premises [the Building] constituting the first stage will be completed and delivered to Lessee, no later than April 15, 2011. The Deadline for Completion will be adjusted in the event of an occurrence of a Legitimate Reason for Delay beyond the 10 days included in the schedule. In the event of a Legitimate Reason for Delay, provided that these legitimate reasons for delay are reported to the Lessee by certified letter with return receipt within 8 days of their occurrence and provided that notice of a new delivery schedule is provided, the Deadline for Completion will be adjusted by a time equal to that during which the event in question would have been an obstacle to the continuation of the work. 2.2 comprising the second phase The Premises [the Building] constituting the second phase will be completed and delivered to the Lessee no later than April 30, 2013 in the event of the exercise of the option stipulated below. The Lessee not having to this date taken a firm decision as to his willingness to lease the premises constituting the second phase, the construction of the latter requiring an additional building permit for the additional [-------------²]8 net floor area to the permit obtained and a modified operating license, the following has been agreed: As of April 15, 2011, the Lessor will file an application for an additional building permit to the effect of allowing the construction of the [-------------]9 net floor area constituting the second section. Within ten consecutive days of the filing of this application, the Lessee will then became operator and will file an application for a modified operating license. The file for the operating license will be drawn up in conjunction with the Lessor and with the environmental firm who carried out the study for the original file, the cost of which will be borne by the Lessor. The Parties undertake to inform each other of the exchanges and responses of the administrative services during the process of completion of these files. 8 Confidential information omitted and filed separately with the SEC with a request for confidential treatment by Inter Parfums, Inc., no. 10.144.1.8. 9 Confidential information omitted and filed separately with the SEC with a request for confidential treatment by Inter Parfums, Inc., no. 10.144.1.9. Page 11 of 46 The Lessee shall have a period expiring April 30, 2012 to require the Lessor to construct the premises constituting the second phase. delivered to the Lessee, no later than April 30, 2013. 2.3 Completion of work - availability of the Premises (a) Definition of completion The buildings will be considered to be completed when the work has been carried out and all items of equipment have been installed in accordance with the building permits, the Technical Description, the Technical Description of the Lessee's work, the rules of practice and the standards and the Applicable Regulations on the Delivery Date, taking into account the intended use and the nature of the Premises. In this regard, it is specified, in accordance with the laws in force (Article R.261-1 of the Construction and Housing Code), and by transposition of these rules, that for the assessment of completion, non-compliance is not taken into consideration when it is not of a substantial nature. It is the same for defects which do not render the work or the equipment items unfit for use. The defects, imperfections and non-conformities may be subject to reservations by the Lessee as described below in Article2.3(b)). (b) Delivery and lifting of reservations (i) Visit prior to the Delivery of the Premises The Lessor will inform the Lessee, 10 days in advance and by registered letter with return receipt, of the proposed timetable for a visit prior to Delivery, at least 10 days before the date set out as the Delivery Date. Its purpose is to allow the Lessee to formulate his observations on the performance of the work.All installations, adjustments, tests and checks must be completed by the Delivery Date (it being understood that the adjustments relating to heating and air conditioning if they exist will be made after the Date of Delivery if they cannot be made before the Date of Delivery given the climatic conditions existing at that date). The Lessor undertakes to declare in the statement of acceptance of the work to be concluded between the Lessor and the Builder, all of the observations made by the Lessee during the visit and not withdrawn on acceptance. (ii) Procedure for Delivery and Date of Delivery The Lessor shall convene the Lessee by registered letter with return receipt sent at least ten (10) Business Days before the date of delivery. The statement which will be drawn up between the Parties will serve as an inventory of the premises, and will declare the Delivery of the Premises with or without reservations by the Lessor. The statement will be established between the parties or by a bailiff at the Lessee's expense. Page 12 of 46 In the event that the Lessee does not attend this meeting, there will be a second notice sent by registered mail with return receipt at least ten (10) Days in advance or by Bailiff Three full days in advance. In the event that the Lessee is present at this second meeting and he gives his agreement on the state of completion, the Building will be deemed to have been Delivered on the date set out for the first meeting. In the event that the Lessee is not present at this second meeting, the Building will be deemed to have been made available on the date set out for the first meeting. Failing establishment of a statement of Delivery due to the non-attendance of the Lessee on the scheduled date for Delivery referred to above, the Premises shall be deemed completed under the conditions of Article 2.3, without prejudice to the lifting of any possible reservations made by the Lessee during the Prior Visit. In the event of disagreement between the Parties on the state of completion in accordance with the definition referred to above in Article 2.3, the Parties will submit to the decision of the Expert appointed by mutual agreement between the parties or by a Summary Order at the request of the most diligent party who will be responsible for this finding and which will, where applicable, prescribe the work required for completion. The Expert must render its decision at the latest within one month from the date of his appointment. The decision of the Expert shall be final and shall not be subject to any form of redress. It will be up to the Expert to designate the Party who shall bear the consulting costs and fees. If the expert concludes the completion of the construction in accordance with the contractual definition referred to in Article 2.3 above, the Delivery will be deemed to have occurred on the date specified in the first notice of meeting by the Lessor as referred to above and all charges resulting from the intervention of the Expert shall be borne by the Lessee. In the contrary situation, the Lessor shall make or have made the work prescribed by the Expert to achieve completion and will reconvene the Lessee in the manner prescribed above, the costs resulting from the intervention of the Expert then being borne by the Lessor. The Lessee may not require any work in the Premises after Delivery as visible defects, with the exception of those which have been subject of reservations. (iii) Lifting of reservations The Lessee may possibly formulate reservations during the Prior Visit and/or Delivery with respect to defects, imperfections and/or non-conformities The reservations formulated by the Lessee and/or by the Lessor must be lifted no later than July 25, 2011. From the time of the lifting of the last reservations, the Lessee can no longer require the Lessor to do any rework, either for poor workmanship or non-conformity with respect to the reservations made upon Delivery. Page 13 of 46 The Lessee will nevertheless bring to the Lessor's attention any disorder/defects that he is aware of, which could be repaired under the guarantee of perfect completion due to the Vendor by companies. The Lessor shall ensure that the Seller takes action against the companies concerned as soon as possible when necessary or upon request of the Lessee to the extent that such disorders/defects relating to the work will be covered by this guarantee. Once all reservations have been lifted, the Lessor shall notify the Lessee by registered letter with acknowledgment of receipt and with this notification shall convene the Lessee with a prior notice of fifteen (15) calendar days to a visit in order to certify the removal of the said reservations. A statement of the lifting of the said reservations will be established between the Parties and will establish the statement of Delivery. In the event of disagreement between the Parties on the lifting of all reservations raised at the Prior Visit and/or on Delivery, the Parties shall submit to the decision of the Expert, who will be responsible for determining whether all reservations raised at the Prior visit and/or on Delivery have been lifted. of his appointment. (iv) Access to the Premises by Lessor or its companies after the Date of Delivery. The Lessor may involve companies responsible for the lifting of the reservations in the Premises provided that such companies comply with the rules and regulations which may be reasonably imposed by the Lessee. The companies will make their best efforts to minimize disruption to the use of the Premises by the Lessee. The Lessee is obliged to allow these companies to enter the premises any day of the week, at reasonable times, in order to proceed with the lifting of the reservations and undertakes to make his best efforts to facilitate the involvement of the Lessor's companies. The Lessee may not claim any compensation due to the inconvenience caused by the presence of such companies to carry out the lifting of reservations in application of this article. - Availability and Delivery of the Premises As of February 15, 2011 the Building will be made available to the Lessee so that he or his companies may carry out their own work and install their own processes at the Lessee's expense for which they are responsible to obtain insurance under the terms of Article 7.8. The Availability will take place cell by cell after the foundation has been poured and dried.From the time that cell by cell becomes available in the order indicated in the plan comprising Appendix 7, the Project Manager may begin to carry out his own work. Page 14 of 46 Such Availability shall not prevent the Lessor's companies from carrying out their work in the area. During this period the Lessee shall have carried out by his own providers and companies only work for the refurbishment and installation of his processes in the warehouse. It is further specified here that the facilities provided will not be completed within the meaning of this Contra ct, but only covered by steel framing and enclosed by single skin sheet cladding and the floor foundation poured and clean and dry. Prior to the availability of each cell, an inventory of the premises will be drawn up between the parties. While all or part of the building is made available to the Lessee or to his companies or service providers before the delivery of the building, these last will be responsible for the protection and guarding of all materials or equipment All of the companies selected by the Lessee must comply with all of the site regulations. The Lessee will manage the expanding health and safety mission, and must establish an update of the General Coordination Plan with the Promoter’s construction coordinator and subscribe to any necessary insurance for a policy covering any damages which may result from the involvement of the companies that he has selected and for whom he will assume liability. In addition, the Lessee shall communicate to the Lessor the amount of the development work that he is undertaking so that the Lessor may subscribe to any additional and necessary insurance policies The additional premium arising from this work will be reinvoiced by the Lessor to the Lessee. Delivery of the Building will take place April 15, 2011 with the Lessee being responsible for the proof of insurance under the terms of Article 7.8, the effective date of the lease being postponed to June 1, 2011. 2.4 Modifications and additional work In the event that the Lessee, after the signing of this Lease and prior to the completion of work, would like to make changes to the plans and specifications or have additional work carried out, he must make this request to the Lessor who will, in conjunction with the builder, assess whether the requested work is feasible. The Lessor, if the changes can be made, will indicate to the Lessee the potential impact on the Rent and the time period for Delivery, and the agreement between the Parties shall be set out in a written amendment. 2.5 HEQ AFILOG 1* certification In order to obtain HEQAFILOG 1* certification of the Building, the Lessor and the Lessee have defined by common agreement the terms and conditions of their respective commitments to achieve this goal. Page 15 of 46 The Lessor has defined in terms of an Appendix hereto the additional elements of the construction program required in order to obtain this certification. The builder has evaluated this additional investment, which represents a budget of approximately €[-------------]10 (Appendix 9).The additional elements set out in this statement are enunciative and may be substituted for others insofar as concerns the external factors and the CMV, as part of the certification process which will be cared out. The compliance audit will be conducted by the ELAN office which will coordinate the program certification and develop a charter based on the retained AFILOG reference criteria.This Charter will define the objectives and means of implementation and the respective obligations of the Lessor in his capacity as Project Manager and the Lessee as an operator.It will be signed by both parties and will become, upon ratification, an appendix to the Lease. In consideration of the economies for operating expenses, the Lessee has agreed to participate in this investment for up to € [-------------]11. This sum shall be paid to the Lessor when the certificate of compliance for the equipment additional to the specifications is obtained, issued by the ELAN office. Each of the parties undertakes to make his best efforts to obtain this certification. 2.6 Surface Area Tolerance In the event that the surface area as it will be measured by the Surveyor under the conditions described above is less by more than [-------------]12% of the surface area defined in the lease by the Lessor, the rent will be reduced by € [------------]13/ M² net floor area for the missing area, beyond the threshold of [-------------]14%. 2.7 List of documents to be provided by the Lessor to the Lessee The following documents shall be delivered by the Lessor to the Lessee as and when they are drawn up and at the latest within [three (3)] months following the Date of Delivery: - DIUO (post-construction works file) - DOE (construction specifications file) 10 Confidential information omitted and filed separately with the SEC with a request for confidential treatment by Inter Parfums, Inc., no. 10.144.1.10. 11 Confidential information omitted and filed separately with the SEC with a request for confidential treatment by Inter Parfums, Inc., no. 10.144.1.11. 12 Confidential information omitted and filed separately with the SEC with a request for confidential treatment by Inter Parfums, Inc., no. 10.144.1.12. 13 Confidential information omitted and filed separately with the SEC with a request for confidential treatment by Inter Parfums, Inc., no. 10.144.1.13. 14 Confidential information omitted and filed separately with the SEC with a request for confidential treatment by Inter Parfums, Inc., no. 10.144.1.14. Page 16 of 46 2.8 Failure to carry out reciprocal commitments Obligation to take on the Lease Within two months of the signing of the lease, the Lessee must provide a bank guarantee for the payment of a security deposit equal to [-------------]15 months’ rent before taxes, the Payment of this security deposit is due on the day the lease comes into effect. Without prejudice to any right to compensation for damages suffered by the Lessor, it is understood that in the event of refusal to lease the goods delivered without good reason (notably in the event of non-conformity of the goods to this Contract or in the absence of an operating license), the Lessee will be liable for all of the rents and charges until the end of the time periods for which leave has been renounced. As such, the Lessee agrees to pay irrevocably as a provision against the amount for which it would be recognized as liable for the damages suffered by the Lessor in the event that it defaults on its commitment to lease the property delivered, an amount representing the aggregate of 12 months of rent/before taxes and an amount of € [-------------]16/before taxes representing the cost of the specific arrangements made for his establishment in the facility during construction of the building to meet his process requirements. The said sum will be payable upon the first request by the Lessor and payable within fifteen days of the receipt thereof. Failing this payment under the conditions set out above, the Lessee shall be liable for an additional lump sum payment by full right of the law of -------------]17% of this amount. Delayed Delivery In case of delay in delivery not exceeding a period of one month and for any fact not attributable to a legitimate reason for delay, the Lessor shall be liable by full right of the law for compensation of € [-------------]18 before taxes per day of delay. This compensation shall be without prejudice to any right to compensation for damages suffered by the Lessee.It will be paid by the Lessor to the Lessee on the day of delivery. In the event of a delay in delivery exceeding [-------------]19, the Lessor irrevocably undertakes to pay as compensation, an amount equivalent to [-------------]20 rent credited against the amount of compensation for damages suffered by the Tenant which would be obtained by any legal remedy in respect of the damages suffered. The said sum will be payable upon the first request by the Lessee and payable within fifteen days of the receipt thereof. 15 Confidential information omitted and filed separately with the SEC with a request for confidential treatment by Inter Parfums, Inc., no. 10.144.1.15. 16 Confidential information omitted and filed separately with the SEC with a request for confidential treatment by Inter Parfums, Inc., no. 10.144.1.16. 17 Confidential information omitted and filed separately with the SEC with a request for confidential treatment by Inter Parfums, Inc., no. 10.144.1.17. 18 Confidential information omitted and filed separately with the SEC with a request for confidential treatment by Inter Parfums, Inc., no. 10.144.1.18. 19 Confidential information omitted and filed separately with the SEC with a request for confidential treatment by Inter Parfums, Inc., no. 10.144.1.19. 20 Confidential information omitted and filed separately with the SEC with a request for confidential treatment by Inter Parfums, Inc., no. 10.144.1.20. Page 17 of 46 Relationship between the parties during construction In the event of the sale of the building before the completion of construction, GEMFI will remain the sole interlocutor for INTER PARFUMS until the perfect delivery of the premises and will remain the guarantor towards the Lessee for all obligations resulting from this contract and the lease.In addition, all of the said commitments will be binding upon the purchaser for the benefit of the Lessee. 2nd Part Conditions applicable from the Effective Date of the Lease 3. LEASE The Lessor provides a Commercial Building Lease to the Lessee who accepts it for its duration, subject to the rent being paid for the leases below as well as the charges and conditions hereafter set forth, summarized in the following specific conditions as well as those which may arise from law and custom, that the Lessee undertakes to observe and this under penalty of immediate termination of the Lease in accordance with Article 9 of this Agreement and without prejudice of any other compensation and damages-interest. The parties expressly submit the Leases to Articles L. 145-1 and following and R.145-1 and following of the Commercial Code and the provisions not repealed of Decree No. 53-960 of September 30, 1953, intending that the leases be subject to the statutes for commercial leases. 4. 4.1 Effective Date of the Leases DURATION OF THE LEASES: 1) For the 4 cells representing [-------------]21 of net floor area and [-------------]22 net floor area for use as office space and social space corresponding to Lot Nos. 1 to 4 on the map attached as an appendix hereto, the main Lease will take effect on June 1, 2011 and will be extended for a fixed and irrevocable 9 full and consecutive years and the Lessee expressly waives his right to give notice during this fixed term of nine years after it takes effect such that the rental of these 4 cells and premises have a minimum duration of nine years. 2) For a cell of approximately [-------------]²23 net floor area corresponding to Lot No. 5 on the plan attached as an appendix hereto, the Lease shall take effect from June 1, 2011 and will be extended for a fixed and irrevocable term of 6 full and consecutive years, the Lessee renouncing from the time of this Contract his ability to give notice of termination during this term of six years following the effective date such that the rental of this cell has a minimum duration of six years. 3) Upon exercise of the option of extension applying to one or two cells consisting of [-------------]24 of net floor area per the plan attached as an appendix hereto, the Lease will be extended under the same terms and conditions for a period of 9 years from the Delivery of this additional surface area with a duration of a minimum of four years, the Lessee renouncing from this time forward his ability to give leave of notice for a period of 4 years following its delivery. 21 Confidential information omitted and filed separately with the SEC with a request for confidential treatment by Inter Parfums, Inc., no. 10.144.1.21. 22 Confidential information omitted and filed separately with the SEC with a request for confidential treatment by Inter Parfums, Inc., no. 10.144.1.22. 23 Confidential information omitted and filed separately with the SEC with a request for confidential treatment by Inter Parfums, Inc., no. 10.144.1.23. 24 Confidential information omitted and filed separately with the SEC with a request for confidential treatment by Inter Parfums, Inc., no. 10.144.1.24. Page 18 of 46 The Lessee may give notice to the Lessor by extrajudicial process at least six (6) months in advance for each of the terms set out above. The Lessor may terminate the leases, by extrajudicial process, as provided by law and as provided in this Contract, in particular in Article 9. If renewed, the Parties agree that the lease renewal will be for nine (9) full and consecutive years with the possibility for the Lessee to terminate the renewal at the end of the third year and the sixth year. 4.2 Taking possession The Lessee will take possession of the Building as of April 15, 2011, the date of Delivery, the prior period being defined as a single period of availability for the carrying out of the Lessee's own work and the installation of his processes, the effective date of the lease being deferred to June 1, 2011. 5. USE OF THE BUILDING 5.1 Use of the Building The building may only be used for the exclusive storage of products that meet the criteria for which the operating license will be issued. 5.2 Permitted Activities The Lessee may only exercise warehousing, logistics operations and office operations related to this activity in the Building. As an essential and determining condition without which the Lessor would not have entered into this Contract, the Lessee undertakes unless otherwise agreed and in writing from the Lessor, to retain the building for its intended use, to the exclusion of any other use or activity of any kind, extent and duration such that it is, under penalty of termination of the Lease by the Lessor, as he sees fit. The Lessee may not, under any pretext, alter or modify, even momentarily, the nature of the activity exercised in the Building or add related or additional activities without having complied with the procedure provided for this purpose by Articles L. 145-47 to L. 145-55 of the Commercial Code. The Lessee may carry on his activities in the Building in a personal, constant and uninterrupted manner barring the implementation of the termination clause set forth below, subject to the provisions of Article 7.1 below. Page 19 of 46 6. 6.1 Rent The Lease is entered into and accepted provided that an annual Rent is paid from the time the lease takes effect of € [-------------]25/m² net floor area increased by a rent supplement of € [-------------]26/m²net floor area excluding VAT, for paved areas corresponding to norm T34 category 1, payable quarterly in advance. Taking into account the exemption granted by the LESSOR, this rent shall be payable only from the [-------------]27 month following the effective date of the lease, which will be indexed in accordance with Article 6.5 below For the one or two cells covered by the option to extend the subject of the lease, the rent on the date of delivery will be set at the base value above updated for the effect of any variation in the index of construction costs, on the day of their delivery in application of Article 6.5 below. 6.2 Charges and Accessories In addition to the Rent, the Lessee shall pay to Landlord all Charges and Accessories and more generally any sums due under this Contract in such manner that the Lessor shall not be pursued and shall be held harmless and that the rent is still perceived to be net of all fees and charges whatsoever by the Lessor, subject to the provisions of Article 7.6 of this lease. 6.3 VAT The rent in principal, the Charges and Accessories are exclusive of VAT.The Lessor having decided to opt for the VAT, the Lessee agrees to pay, in the hands of Lessor, the amount of the VAT payable on the rent, Charges and Accessories, or any other taxes or new taxes, in addition or as a replacement, at the rates in effect on the day the VAT is payable or any tax that is substituted for it. If for any reason whatsoever or due to a change in the law, the sums owed by Lessee under this lease became subject to the tax on leases or to any other tax or fee, the Lessee shall bear the expense in addition to the rents, Charges and Accessories. 6.4 Payment of the Rent, Charges and Accessories and the VAT The Lessor will send the Lessee a quarterly invoice with a breakdown of the amounts payable in respect of rent, Charges and Accessories and the VAT. (a) Date of payment of rent The rent and the associated VAT will be payable per quarter quarterly and in advance on the first day of each calendar quarter.If the first day of a calendar quarter is a Sunday or a statutory holiday, payment must take place on the last business day preceding this Sunday or this statutory holiday. [For the calendar quarter in progress on the date the Lease comes into effect, the Lessee shall pay no later than within a time period of fifteen (15) Days the proportion attributable to the period of occupancy during the said quarter.] 25 Confidential information omitted and filed separately with the SEC with a request for confidential treatment by Inter Parfums, Inc., no. 10.144.1.25. 26 Confidential information omitted and filed separately with the SEC with a request for confidential treatment by Inter Parfums, Inc., no. 10.144.1.26. 27 Confidential information omitted and filed separately with the SEC with a request for confidential treatment by Inter Parfums, Inc., no. 10.144.1.27. Page 20 of 46 (b) Date of payment of Charges and Accessories (i) Provisional payments The Lessee shall pay the Charges and Accessories, plus the VAT, at the same time as the rent and under the same conditions, by the payment of a provisional payment calculated quarterly by the Lessor, based on the budget estimates prepared by him for each year. In the event that during the year, the aforementioned provisional payment is found to be insufficient, the Lessor will adjust the amount of this provisional payment and shall notify the Lessee of the adjusted amount of the provisional payment with the supporting documents. The Lessee will pay the amount claimed to the Lessor within fifteen (15) days after receipt of the notification. (ii) Financial statements The Lessor shall prepare and provide to the Lessee on or before the end of the second quarter of each year, a statement of financial accounts for the Charges and Accessories applying to the previous year, and will make available to the Lessee all supporting documents for a period of two (2) months after receipt of the said notice by the Lessee. The parties shall have a time period of two (2) months after receipt by the Lessee of the said notice, to question or express reservations with respect to the financial statements for the Charges and Accessories.Beyond the time period of two (2) months mentioned above, the said financial statements will become final without one or other of the parties being able to dispute them. If the provisional payments made by the Lessee prove to be less than the actual Charges and Accessories appearing in the financial statements referred to above, the Lessee agrees to pay the Lessor, within fifteen (15) Days from the receipt of the Lessor's request, any additional amounts that may be required.In the event that the provisional payments made by the Lessee exceed the amount of the actual Charges and Accessories appearing in the financial statements referred to above, the overpayment will be deducted automatically from the requests for provisional payments for the current year. (iii) Financial statements at the end of the Lease In the event that for whatever reason the Lessee leaves the Building, the Lessor shall prepare and provide to the Lessee a statement of accounts at the end of the Lease which includes the Charges and Accessories and any amounts which may be owed by the Lessee under Article 8 within a time period of three (3) months from the date on which the amounts due under Article8shall be determined. The amount appearing on the financial statements at the end of the lease will be deducted automatically from the provisional payments made by the Lessee. If the amount of the provisional payments made by the Lessee up to his departure prove to be less than the amount owed by the Lessee, the amount corresponding to that difference will be deducted automatically from the security deposit.In the event that the security deposit is insufficient, the Lessee shall pay to Lessor the amount of the difference within a time period of one (1) month after receipt by the Lessee of the notification of the financial statements at the end of the Lease. Page 21 of 46 If the amount of the provisional payments paid by the Lessee to the Lessor exceed the amount appearing on the financial statements at the end of the Lease, the Lessor shall return to the Lessee the excess amount within a time period of one (1) month after the receipt of the letter of agreement Lessee on the financial statements at the end of the lease unless other sums are payable by the Lessee to the Lessor for other reasons by virtue of this Contract. (iv) Payment Methods - Discharge of debts The Lessee shall make all payments by automatic bank transfer, to the head officer of the Lessor or to any other place notified by him to the Lessee. The cost of the transfers will be borne by the Lessee. Any payments made by the Lessee to the Lessor under this contract shall have a liberating effect on the day on which the Lessor has at his disposal the sums which are subject of the payment, as a consequence, a payment shall be deemed to have been made only after such date. (v) Failure to make payment on the due date A failure to make payment of a single term of rent, the Charges and Accessories, and more generally any sums due under this Contract on the due dates set out or as notified by the Lessor to the Lessee, will lead to the sums due being increased automatically and without any formality by Late Payment Interest, all of these being invoiced with the VAT, without this increase leading to an extended time period for payment, from the due date until the date of payment. In the event that the failure to pay exceeds fifteen (15) Days from the due date set out, all amounts payable will be increased by a lump sum payment automatically in the form of a penalty of [-------------]28, plus VAT, plus Late Payment Interest, without any need for any notification or warning notice, and without prejudice to the application of the resolutory clause set out in Article9 below. 6.5 Indexation (a) Index The Parties agree to index the rent according to the change in the National Cost of Construction Index published quarterly by INSEE, the two parties acknowledging that this index is directly related to this Contract, without prejudice to the provisions of Articles L. 145-37 and L. 145-38 of the Commercial Code. If for any reason, the index chosen above ceases to be published, it will be replaced by the index which will be officially substituted for it.If necessary, linking indexes will be calculated by the Parties.In the absence of an official index substitution, an index will be selected by mutual agreement between the Parties. 28 Confidential information omitted and filed separately with the SEC with a request for confidential treatment by Inter Parfums, Inc., no. 10.144.1.28. Page 22 of 46 Failing agreement on the choice of a new index to adopt, the parties shall rely on the decision of an expert to be appointed by order of the President of the District Court for the area in which the Building is located on the request of the most diligent Party.The fees and honorariums related to this application and to the order shall be borne equally by each of the Parties. Here it is specified here that this Article is an essential and determining condition of the Lease without which it would not have been entered into. (b) Calculation of indexation The rent excluding VAT will be adjusted automatically by the Lessor every year on the anniversary date of the Lease. The rent will vary according to the same percentage as the variation in the chosen index. The change in the index will be considered both in the event of an increase as in the event of a decrease in the index. However, in no case will the application of indexation result in a rent less than the initial rent. The base index retained for the duration of the Lease will be the last index published on the date the lease comes into effect and the index of comparison will be the last index published on the anniversary date of the date that the lease takes effect. The indexation calculation will be based on the following formula: L1 = LxI1 I in which L1 equals the new rent L is equal to the initial rent set out in Article 6.1 I is equal to the base index: the last index published on the date the lease comes into effect I1 is equal to the revision index Upon publication of the comparison index, the Lessor shall notify the Lessee of the amount of the new rent and possibly a statement of adjustment in the event that the comparison index is published late. The Lessee shall pay to Lessor within fifteen (15) days from the receipt of the statement of adjustment all accrued additional rent. Capping of the escalation clause: It is agreed between the parties that in consideration of the Lessee belonging to the INTER PARFUMS Group, the Lessor agrees to cap the variation to the decrease or increase observed from one year to another. This cap will be applied whenever the variation of the index does not exceed [-------------]29. In this case, the increase or decrease resulting from indexation will be applied to the rent only by up to one half. In the event that the variation of the index exceeds [-------------]30 as a decrease or an increase, the parties undertake to come together in order to determine the percentage change to be applied in consideration of the effects of the situation. 29 Confidential information omitted and filed separately with the SEC with a request for confidential treatment by Inter Parfums, Inc., no. 10.144.1.29. 30 Confidential information omitted and filed separately with the SEC with a request for confidential treatment by Inter Parfums, Inc., no. 10.144.1.30 Page 23 of 46 The application of this capping mechanism will cease in any event from the moment that the Lessee is no longer part of the INTER PARFUMS Group. In addition, it is agreed that in no case will the application of indexation on this basis have the effect of determining an amount of rent below the amount of the initial rent. 6.6 Security deposit On the day of Delivery the Lessee shall pay to the Lessor a sum equal to [--------------------]31 of rent (exclusive of taxes) as security against (i) payment of all sums payable by the Lessee to the Lessor under this Contract, including in particular the rents, Charges and Accessories, including any Late Payment Interest, penalties and damages, (ii) proper execution of the articles and conditions of this Contract, (iii) the restoration of the Building at the end of the Lease in the conditions set out in Article 8 of this Contract and in accordance with their Use. The security deposit shall in no way be used by the Lessee for the payment of rent including the last rent. The security deposit will be adjusted annually in the same proportion as the main rent, in application of Article 6.5 above, so that it corresponds to an amount equivalent to [-------------]32 month's rent excluding VAT In no case, will the security deposit bear interest for the benefit of the Lessee, the main rent, moreover, having been set taking into account this provision. The Landlord may charge in full light of the law, if necessary, the amounts appearing in the financial statements at the end of the Lease set out in Article6.4(b)(ii) against the security deposit. The balance of the security deposit, if any, will be returned to the Lessee within one (1) month after receipt of his letter of agreement on the financial statements at the end of the Lease set out in Article 6.4(b)(ii) The Lessee agrees that the security deposit paid to the Lessor will be delivered to the acquirer of the Building in the case of transfer and renounces any claim against the Lessor for repayment of the deposit after the transfer of the Building, the Lessee's rights being preserved against the acquirer of the Building. In addition, the Lessee shall furnish the Building and keep it constantly filled with furniture, equipment and stock, in sufficient quantity to meet the payment of the rent, Charges and Accessories and to carry out the charges and conditions of this contract. 7. CHARGES AND CONDITIONS 7.1 General terms of use (a) Occupation of the Premises (i) The Lessee shall occupy the Premises himself, peacefully and in accordance with: (A) Articles 1728 and 1729 of the Civil Code; 31 Confidential information omitted and filed separately with the SEC with a request for confidential treatment by Inter Parfums, Inc., no. 10.144.1.31. 32 Confidential information omitted and filed separately with the SEC with a request for confidential treatment by Inter Parfums, Inc., no. 10.144.1.32. Page 24 of 46 (B) the Use set out Article5 of this Contract, to the exclusion of any other occupation or use, and (C) Internal Regulations if applicable. (ii) The Lessee shall have the right to subcontract all or part of any logistic services by any logistician of his choice and if choosing a single logistics provider to transfer the operating license; the occupation corresponding to this sub-contracting will in no case be considered by the Lessor as a sub-lease. (iii) The Lessee shall comply with all requirements of the city and police which are usually required of tenants and shall comply strictly for the conduct of his business and the carrying out of all work required by Applicable Regulations with respect to roads, safety, inspection of work, urban planning, sanitation, safety, environment, means of firefighting and the monitoring and guarding of the building. (iv) The activities of the Lessee shall not give rise to any violation, or any claim or complaint from anyone whosoever, particularly from the neighboring buildings. The Tenant must take responsibility as his personal affair and bear alone the consequences of the complaints made about him to the Lessor, so that the former is held harmless and is secured by the Lessee against any consequences that may result. (v) The Tenant agrees to submit to all measures of order and cleanliness of the Building.He shall not deposit or store goods or articles on green space and/or points of access. (vi) The Lessee will ensure that suppliers use the space reserved for deliveries so as not to obstruct access to the Building. (vii) He will neither deposit nor store any objects in the parking spaces reserved for visitor vehicles, nor perform any repairs, maintenance, testing, cleaning or washing of cars in these areas.Vehicles will operate at reduced speed in the parking areas. (viii) [The Lessee will be personally responsible and in an appropriate manner for the guarding and supervision of the Building, the Lessor having no obligation or responsibility in this regard.] (b) Conditions of standing The Lessee agrees not to do anything that will impair or diminish the proper appearance that the Landlord intends to retain for the Building. (c) Administrative authorizations The Lessor shall transfer to Lessee or the Logistician chosen by the Lessee the operating license (i) The authorization provided to the Lessee to exercise the activities described in Article 5.2 of this Contract shall not imply on the part of the Lessor, nor on the date of this Contract, or during the course of the Lease, any guarantee for the obtaining of subsequent administrative authorizations necessary for the exercise of such activities. Page 25 of 46 Accordingly, the Lessor shall not be held responsible for any refusal or delay in obtaining these approvals. (ii) The Lessee will be personally responsible to obtain any administrative authorization for the exercise of his activities with the exception of the operating license previously cited, for which the Lessor is committed, the issuance of this authorization being due in respect of the obligation to deliver a Building compliant with the activity exercised and the payment of all sums, fees, taxes and others which may be claimed in exchange for the granting or maintaining of such licenses and related to the activities exercised in the Building, the use of the building, particularly in application of the laws with respect to construction permits, use of premises as warehouses, premises receiving the public, health, safety, cleanliness, etc.. The Lessee agrees not to engage in any new activity subject to licensing without obtaining such prior authorization. He agrees to provide to the Lessor, upon request of the latter, a photocopy of all supporting documents relating to applications and administrative authorizations obtained for the exercise of his activities. The Lessee guarantees the Lessor against any conviction, any direct or indirect damages resulting from the fact of failing to comply with any article of this Lease and in particular Article 7.1(c)of this Contract, without prejudice to the Lessor to request termination of the lease as well as damages-interest. It is further expressly agreed that, in the event that, due to violation of the special regulations on the activities of the Lessee or the use of the Building, the Lessee or Lessor is ordered to temporarily or permanently close the Building, such closure will not result in termination of the Lease, nor the reduction or elimination of the financial charges which the Lessee is required to pay under this Lease, and without prejudice to the rights reserved to the Lessor to terminate the Lease contract for non-use of the Building. He will therefore remain bound, throughout the whole duration of this possible closure, for the payment of rent and other Charges and Accessories payable under the Lease as for the execution of all articles and all conditions of this Lease. (iii) In application of the regulations relative to installations classified for the protection of the environment, all of the lots provided under the lease have been subject of a single application for an operating license filed on July 4, 2008 against a receipt issued to the Lessor by the prefecture of Eure. (iv) In order to meet the needs of the Lessee, this application has been subject to additions and amendments and an application for additional authorization dated (v) A change of use declaration will be made by the Lessor at the prefecture of Eure. (vi) In the context of relations with the competent authority in terms of installations classified for protection of the environment, the Lessee will be the legal operator.As such, the Lessee agrees not to make any approach towards this administration without the prior written consent of the Lessor. Page 26 of 46 Failing to comply with the above prohibition, the Lessee will assume all of the consequences that may ensue. In the event that the unauthorized actions of the Lessee result in a reconsideration of the order of the prefect, the Lessee shall pay Lessor the equivalent of [-------------]33 of rent as additional damages and interest, and this, notwithstanding the provisions of Article 9. In the event that by fault of the Lessee, this approval is subject to removal and/or the Lessor is held legally liable because of the operations of the Lessee, the Lease will be automatically terminated without compensation to the Lessee, the Lessor reserves to be compensated for his loss by the Lessee. (d) Use of devices- Storage - Floor load (i) Use of devices and others The Lessee shall not make use of slow-burning appliances or devices producing noxious gases, other than machinery for the filming of pallets, and more generally any dangerous device, the Lessor not being responsible for accidents and injury which may ensue. He shall not use equipment that may be heard outside the Building or that will disturb the neighborhood. The Lessee will be personally responsible, when using radio, television or others, for the noise cancellation or other interference disturbing his own airwave reception, without recourse against the Lessor. The Lessee shall be personally responsible, at his own risk, perils and costs, for any claim by neighbors or third parties, particularly for noise, lightning, heat, interference, vibrations. The Lessee shall subscribe to the maintenance contracts necessary to meet his obligations and maintain these as current throughout the duration of the Lease and will provide copies of these to the Lessor.This obligation to subscribe to maintenance contracts will not apply to a particular item of equipment in the event that the Lessor subscribes himself to such a maintenance contract for this equipment and notifies the Lessee.In this case, the Lessee shall repay the Lessor for all of the costs arising from the maintenance contracts subscribed to by him. The Lessee shall subscribe, with certified agencies, to contracts for equipment verification, electrical installations, fire extinguishers, sprinkler systems and heating, and will comply with the requirements of these agencies. The Lessee shall carry out all periodical safety audits on all of these facilities and provide proof of this to the Lessor. He must show proof, on the first request of the Lessor, of the subscription to all contracts necessary or useful for the technical management of the Building with qualified companies, the respect of the conditions of guarantee for the various builders or installers and of the implementation of these controls.In case of an observed deficiency, the Lessor may, after notice by registered letter with return receipt which remains unfruitful for more than 15 days, appoint a certified inspection body and have these verifications carried out at the Lessee's expense. 33 Confidential information omitted and filed separately with the SEC with a request for confidential treatment by Inter Parfums, Inc., no. 10.144.1.33. Page 27 of 46 The Tenant shall also subscribe to a fire prevention policy (Prevention et Conseil Incendie AP) with an agency certified by APSAD (Assemblée Plénière des Sociétés d'Assurances Dommages), and agrees to comply with the measures advocated by this agency to maintain compliance with fire safety standards for the facilities delivered by the Lessor who is responsible for such compliance on the delivery date.Similarly, he agrees to respect (i) the APSAD rules governing methods of storage and operation of premises equipped with sprinklers, and (ii) the APSAD rules governing installation of Fire Hose Cabinets and Portable Fire Extinguishers. In addition, in the event that the Lessee wishes terms of storage or to store specific goods other than those permitted by the APSAD rules for sprinklers, and if it is thus necessary to modify or expand the installation of sprinklers to accommodate this, the Lessee agrees to reimburse the Lessor for all of the costs incurred by the Lessor for the modification or extension of the system. (ii) Storage The Lessee is prohibited from storing or placing in the Building, any gas, combustible or toxic materials and more generally any hazardous materials other than the products which were subject of the Operating License and under the conditions prescribed by the Operating License and the applicable regulations for installations classified for protection of the environment. (iii) Floor load The Lessee shall not surpass the floor load capacity and, if in doubt, will verify the authorized weight with the Building Architect. (e) Aesthetics - Signs - Antenna The Lessee may affix any sign, plaque and other objects visible from outside the Building; the Lessor should however beheld harmless in this regard. In particular, the Lessee will be personally responsible to obtain all necessary approvals from the competent services with respect to signs or other stresses and strains which may result from weather conditions and validate the system envisaged with the architect who designed the building. (f) Common areas The Lessee agrees to comply with the terms and conditions of any internal rules which may apply to the Building, including those relating to the enjoyment and use of Common Areas, so that Lessor shall be held harmless with respect to other owners or occupants of the Building. 7.2 Environmental Protection (a) The Lessor must deliver to the Lessee a Building with no pollution of any kind and declares in terms of a pollution research audit that will be presented by the Lessor to the Lessee within a period not exceeding three months from the date of signing of this Lease, that there is no pollution affecting the said Building.The Lessor shall remain liable for any pollution that is discovered after the Lease comes into effect and which has its origin in the past. Page 28 of 46 The Lessee will take all necessary measures and comply with all measures prescribed by law or by the regulations in force in order to preserve the Building, at any time, from any form of pollution. If one way or another, as a result of actions or lack of actions of the Lessee, his employees, agents or contractors, pollution is revealed, the Lessee will be held liable.He must then perform all of the work necessary to remove the source of pollution and to eliminate all of the consequences, in or on the property of the Lessor, as well as in or on adjacent properties in such a way that the Lessor is free from any liability. (b) To this end, he undertakes to inform the Lessor immediately upon the discovery of pollution which would be imputable to him and to appoint, at his expense, an expert who is recognized and certified, in advance, by the Lessor, whose purpose will be to investigate the nature and extent of the pollution and the means to be implemented in order to remove the source and eliminate all of the consequences. A copy of the report will be communicated, without delay, by the Lessee to the Lessor. In addition, in the event that the Lessor has incurred expenses for research and monitoring, related either to the establishment of the remedial work to be carried out, or to monitor the work carried out by the Lessee, the latter agrees to reimburse the Lessor for all of these costs. (c) If, following the discovery of pollution, negotiations must be entered into with the competent authorities or third parties, the Lessee shall be responsible for conducting these negotiations. He must however keep the Lessor fully and completely informed of the progress of the negotiations and, at the request of the Lessor, involve the Lessor in these negotiations. The work to remove sources of pollution that are imputable to him and the elimination of its consequences will be carried out by the Lessee at its own expense exclusively and under the supervision of the expert appointed in accordance with Article7.2(b) above. The Lessee and the expert must keep the Lessor regularly informed of the progress of the work. (d) On the completion of the work by the Lessee, the expert will be required to verify the elimination of the sources of pollution and the elimination of all of its consequences, to prescribe additional work, where appropriate, and to monitor the carrying out of this work. (e) At the end of the Lease, prior to his departure: (i) The Lessee will confirm to the Landlord in writing that no pollution has occurred or, otherwise, that all sources and consequences of pollution have been eliminated. The Lessor may have the declarations by the Lessee verified by any recognized expert of his choice. If the Lessor's expert concludes that pollution exists, in any form whatsoever, the Lessee undertakes to perform all of the necessary work, in order to remove the sources and eliminate all of the consequences, under the conditions stipulated in this Article7.2, under the supervision and control of the expert appointed by the Lessor. All of the costs for the work and the expertise will be borne by the Lessee; Page 29 of 46 (ii) without prejudice to the provisions of paragraph (i) above, the Lessee will submit to the Lessor a copy of all documents related to the cessation of activity sent or received from the competent authorities relating to installations classified for the protection of the environment, confirming that no pollution has occurred on the site, or otherwise, that all measures for reinstatement prescribed by the prefectural authority have been carried out (in particular, the file declaring the cessation of activity, the notification receipt, the latest land control plan, brief and statement of re-examination conducted by the competent authorities, remediation report, phase 1-phase 2). 7.3 Maintenance Repairs Work (a) Maintenance Repair Work on the Premises (i) State of the Premises upon the entry into possession The Lessee will accept the Premises in the condition that they are found on the Date of Delivery, as has been set out in Article 2.3 of this Contract. (ii) Modification Work The Lessee may not make any modifications to the Premises nor carry out any work, demolition, construction, make holes in the walls, ceilings, beams and flooring, partitioning and interior layout without the express written authorization by the Lessor and if applicable according to the conditions defined by him. For this purpose, the Lessee shall deliver to the Lessor a file containing the plans and a detailed description of the project that the Lessee proposes to undertake. The Lessor will make his decision within a period of one (1) month after receipt of the plans and descriptions. Exceptionally, partitioning and work on the internal layout by the Lessee shall only be subject to prior notification in writing by the Lessor. Work which is of a structural nature will be carried out under the supervision of the Building Architect, and the fees of the latter will be borne by the Lessee. For the complete duration of the Lease, the Lessee shall carry out the necessary work so that the Premises are continuously in compliance with all Applicable Regulations, present or future, particularly in matters of health, safety and the environment. (iii) Maintenance Repairs The Lessee shall, for the duration of the Lease, maintain the Premises in a good state of repair and carry out under his responsibility and at his expense all repairs of any kind whatsoever in the Premises, so that on his departure, the Premises are returned in good condition and state of repair. It is specified that work resulting from wear and obsolescence is at the Lessee's expense. The Lessor shall be under no obligation in this respect. The Lessee shall maintain in good condition and state of repair, operation, security and cleanliness, under his own responsibility and at his own expense, the Premises, all of the installations, equipment, furnishings, accessories, and windows located on the Premises. Page 30 of 46 The Lessee agrees to comply with any changes in the regulations applicable to his activity and to respect scrupulously and to implement at his own expense all of the requirements for compliance or others that may be imposed by any governmental authority as regulations for classified facilities (DRIRE, SDIS, ...) from the date the lease comes into effect, and until the expiration of the Lease and its successive renewals, regardless of the form in which these requirements have been imposed and to carry out at his own expense all of the necessary work, with the exception of work pertaining to the real estate property, the Lessor being bound for compliance of the Premises to the He must carry out at his own expense the repainting of the interior of the Premises as often as necessary, as well as on the expiration of the Lease at its original term or in case of early termination. The Lessee shall maintain the flooring in good condition and in particular remedy all defects. (iv) Failure of Lessee to carry out work The Lessee agrees that failure to have carried out himself any of the maintenance, repair and replacement work under his responsibility by virtue of paragraphs (ii) and (iii) above, the Lessor will have the work done in his place within thirty (30) days after a formal notice sent to the Lessee remains without response. The costs and expenses for the said work shall be considered as Charges and Accessories and will be reimbursed by the Lessee to the Lessor in accordance with Article 6.4 of this Contract. (v) Results of improvements and work All of the work, embellishments, modifications, improvements, installations and construction whatsoever, including, where appropriate that which may be imposed by laws or regulations carried out in the Premises by the Lessee at his expense, will automatically and without formality become property of the Lessor at the end of this Contract or if the Lessee leaves before the end of the occupation of the Premises, without compensation. The Premises must be returned in good condition and state of repair. The Lessor however reserves the right to require that the Premises be restored to the original state at the expense of the Lessee. (b) Maintenance Repair Work on the Building and the Common Areas (i) The Lessor shall be responsible for routine maintenance, the completion of maintenance, repair, improvement, replacement work and generally all necessary work related to the Building and the Common Areas. The Lessor will delegate the carrying out of the maintenance and other work to a Building manager, subject to the provisions of Article 7.6 below. The Tenant will accommodate without compensation or reduction of Rent, notwithstanding Articles 1723 and 1724 of the Civil Code, any repairs, any work, any modifications, any raising of new stories or even any new construction carried out by the Lessor, or any other person duly authorized by the Lessor, in the Premises, the Building or the adjacent buildings, the Common Areas, whatever its duration, even if it exceeds forty (40) days, as well as the work prescribed by the administrative authorities, and this without prejudice of Article 7.3(a) of this Lease. Page 31 of 46 The Lessor shall have the right (with reasonable notice and at a time agreed with the Lessee) to maintain, use, repair and replace the ducts, conduits, cables and wiring serving the Building and which passes through the Premises. The Lessee shall bear at his own expense, all changes of inlets and connections, all replacements of meters and interior installations which may be required by companies or agencies distributing water, gas, electricity, heating or telephone. (ii) The Lessee shall install at his own expense and without delay all of the formwork, decorations and installations in the Premises, either for the research and repairing of leaks of any kind, or in general for the carrying out of any work. He must install at his own expense and without delay, at the time that renovations are being carried out, all fixtures, signs and other installations on the facade of the building, whose removal is useful for the carrying out of the work. The Lessee shall immediately notify the Lessor of any claim which may involve the liability of the former and of any repairs of which he assumes control, which may become necessary during the Lease, under penalty of being held personally liable to repay to the Lessor the amount of the direct or indirect prejudice which may result from the claim and/or delay in the declaration being made with the insurance company. It is expressly agreed that when work becomes necessary because of construction defects occurring within ten (10) years from the date of acceptance of work subject to a ten-year warranty and when the repair costs for these defects will be covered by construction insurance policies, in this case, the Lessor will enact such construction insurance policies. If the Lessee fails to immediately notify the Lessor of the occurrence of damage to enable the latter to enact and report within the time period stipulated in the building insurance policies subscribed to, and if by reason of such failure, the damages cannot be repaired under such insurance, the Lessee must at his own expense, carry out the necessary work to repair the damages in question. Similarly if the Lessee has by his fault prevented the enactment of the said insurance. 7.4 Reimbursement for Charges and Accessories The Lessor intends to collect a rent net of all taxes, levies, charges and expenses of any kind.Accordingly, the Lessee shall bear the expenses for the Premises and his Share of Common Expenses under the conditions described below. (a) Premises When an expense, provision of service or tax concerns only the Premises, it shall be borne exclusively by the Lessee. As such, the financial cost for maintenance, repairs and all work mentioned above in Articles 7.3(a) and 0 are the responsibility of the Lessee, except for the work and repairs as set out in Article 606 of the Civil Code. Page 32 of 46 (b) Common Expenses The Lessee shall repay to the Lessor in addition to the Rent and in accordance with Article 6.4(b) his share of the Common Expenses, plus VAT. The common areas are defined as the parts of the building not intended for the exclusive use of the Lessee. They include: 1) The expenses related to the building where the Tenant is not the sole tenant of the whole building, including in particular: the installations and premises associated with the boiler and sprinkler, the local caretaker, the roofs, the Passageways, the parking spaces, the networks of fluids of all kinds serving the building, the green spaces and more generally all equipment or areas and volumes contributing to the building services, or safety, the said list being only indicative and not exhaustive The Lessee shall bear such expenses in proportion to the surface area leased with respect to the total surface area for the building. 2) The expenses related to the Building, i.e., in particular those concerning green spaces and common passageways for the buildings, if applicable the tenants' association (ASL) charges. These also include the cost of equipment maintenance in the Hétrel Bosc area (infiltration basins, retention pond, sewage treatment, irrigation valves, fire network), and the cost of waste analysis which will be invoiced to him by the municipality or responsible agency. These expenses will be borne by the Tenant in proportion to the surface area of the buildings located on the property tax base shown in the overall plan attached below (Appendix 8).As a guide, the annual budget to be allocated was € [------------]34 in 2009. In the event that the reimbursement of certain expenses, taxes and services become prohibited by a legal provision, the Lessee agrees from this point forward that the main Rent is increased by an amount equal to the amount refunded for the previous year if application of the clause becomes illegal. 7.5 Duties/levies and taxes The Lessee shall repay to the Lessor, his share, for the Common Areas inclusive, of all taxes, duties and levies for which the Lessor is liable, and in particular the municipal taxes (waste removal tax, street sweeping tax, sanitation tax), property tax, the annual tax on the premises used as offices, storage, and for business, or for polluting establishments without the said being limiting and all fees and taxes that may subsequently be in addition to these or replace them, such that the Lessor shall be held harmless. Generally, he shall reimburse the Lessor for his proportionate share of any new tax, fee or charge, municipal, regional, national or European, which may be created and apply to the Premises and/or the Building. 34 Confidential information omitted and filed separately with the SEC with a request for confidential treatment by Inter Parfums, Inc., no. 10.144.1.34. Page 33 of 46 7.6 Exception to the repayment of expenses The Lessee carrying out his equipping of the Premises during the three months preceding June 1, without however storing merchandise, it is agreed between the parties that the Charges will be applicable as of June 1, 2011. 1) the management fees for the building which will only be chargeable under the rental expenses up to a ceiling of € [----------------]35 per year provided that the Lessee leases the Entire Building and that he be transferred the operating license and that he provides directly the maintenance for the building, green spaces and facilities. 2) the Lessor's insurance premiums referred to in Article 7.8 for which a quote from various solvent companies having their headquarters in France will be requested by both the Lessee and the Lessor on the basis of an identical policy providing the same coverage. The invoicing will be done based on the lowest bidding company. The Lessor reserves however the option to choose the company but may not seek reimbursement from the Lessee except for the amount of the lowest premium. 7.7 Visits to the Premises (a) The Lessee shall allow entry to the Premises at any time, to the Lessor, his agents, architects, contractors, workers, to (i) visit and check the condition of the Premises and the Building, subject to the respect of a prior warning period of 48 hours except in the case of an emergency (ii) to repair and maintain the Building and the Premises in case of default by the Lessee if he has not fulfilled the obligations set out in Article 7.3of this Contract. When notice of a holiday has been served by one or other of the parties, or in the event of the sale of the Premises or the Building, the Lessee shall allow visits to the Premises by all persons accompanied by a representative of the Lessor, each working day between ten (10) a.m. and five 5) p.m. In addition, the Lessor shall have the right to affix a sign listing the rental or sale of all or part of the building. 7.8 Insurance (a) Insurance by the Lessor The Lessor shall insure with legally solvent insurance companies: (i) The Building including all buildings by use or accession and all fixtures, equipment and common installations, including the sprinklers against all risks usually insured by an owner, including: - fire and lightning, - all explosions, - electrical damage, - falling aircraft and airborne objects, - impact by vehicles belonging to a third party, - hurricanes, cyclones, tornadoes, storms, - smoke, - strikes, riots and civil commotions, 35 Confidential information omitted and filed separately with the SEC with a request for confidential treatment by Inter Parfums, Inc., no. 10.144.1.35. Page 34 of 46 - vandalism and malicious acts, - water damage, - broken windows for the common areas, - attacks. The insurance provides extended coverage including in particular the loss of rents for a minimum duration of two (2 years) and expert fees as well as all other events not mentioned above which appear appropriate to the Lessor. In the event that the building is destroyed and if the building can be rebuilt, the policy will cover the reconstruction costs for the building and the losses related to this situation such as loss of rent. In the event that the building cannot be rebuilt, the policy will provide for the repayment of the highest value, either the market value for the Building excluding the land value such that it would have been on the date preceding the day of the loss or the purchase price of the Building by the Lessor excluding the land value as well as all losses related to this situation. (ii) His civil liability due to injury and/or material damage and/or consequential damage caused to third parties because of the Building and common facilities, as well as the activities of personnel responsible for the maintenance and monitoring of these facilities. The Lessor reserves the right to cover any other risks. All of the insurance will be subject to the terms and conditions, limitations and exclusions of the policies subscribed to by the Lessor. The Lessee shall repay to the Lessor (i) the insurance premiums that the Lessor must pay in respect of all insurance policies taken out by him for the Building against fire and loss and other risks generally insured and (ii) any premium borne by the Lessor because of the Lessee or the activity carried out by him, subject to the provisions of Article 7.6. The payment of insurance premiums will be made in accordance with Article6.4 of this Contract, the latter being considered as Charges and Accessories. In addition, the Lessor undertakes to: - renounce and to have renounced by his insurer or insurers any recourse against the Lessee and his insurer or insurers in the event of damage caused to the Building such as defined in Article 7.10including the events mentioned above, as well as all losses and particularly any resulting rental losses; - renounce and have renounced by his insurer or insurers any recourse against the other tenants or occupants of the Building and their respective insurers, this renunciation being expressly granted provided that the other tenants and/or occupants and their respective insurers have granted a similar renunciation with respect to the Lessor and his insurers. Page 35 of 46 (b) Insurance by the Lessee The Lessee undertakes to take out insurance for the duration of the Lease from a legally solvent insurance company having its head office or any of its branches in France, covering: (i) his civil liability, recourse by third parties and neighbors, and claims that may be brought against him by third parties due to his use by fact or otherwise; (ii) all of the amenities, installations that have been made to the Building and all objects, materials or merchandise garnishing the Building against fire hazards, explosions, floods, strikes, riots, thefts, attacks and broken windows; (iii) his civil liability for any injury or material damage caused directly or indirectly or by virtue of the carrying out of work in the Building or because of his activity or use of the facilities and installations in the Building, or because of his employees. (iv) Operating losses incurred due to claim events covered for the minimum amount of time of 12 months. In addition, the Lessee shall subscribe to fire protection coverage (Prévention et Conseil Incendie AP) with an agency approved by the APSAD (Assemblé Plénière des Sociétés d'Assurances Dommages), and agrees to comply with the measures advocated by this organization. Similarly, he agrees to respect (i) the APSAD rules governing the storage conditions and the use of premises equipped with sprinklers, and (ii) the APSAD rules governing installations of Fire Hose Cabinets or Portable Fire Extinguishers, in such a way in particular that the Lessor is not subject to any extra premiums for his own insurance policies, particularly those set out in Article 7.8(a)(i).Failing compliance with the obligations incumbent on him under this Article, the Lessee agrees from this point forward to assume the costs of the extra premiums which are claimed by the Lessor's insurers, due to this non-compliance. If non-compliance is found during at the time of a claim, and if because of this the Lessor's insurers apply a proportional rule when settling the claim, the Lessee shall repay to Lessor all sums for which he is not paid by his insurers because of the proportional rule. - not violate in any way whatsoever any of the clauses of his insurance policy(ies) which may lead to their termination thereof or therein; - Lessee and his insurer or insurers in the event of damage caused to his goods as defined above, particularly by the events mentioned above, as well as all losses and particularly resulting in operating losses; - Page 36 of 46 - regularly pay at their due date, the premiums for his insurance policy(ies); - provide proof on the first request of the Lessor of the execution of the preceding articles, by the production of the insurance policy or policies and receipts for the premiums relating thereto; - notify the Lessee immediately of the occurrence of any incident, under penalty of remaining personally liable for damages for the amounts that could not, as a result of the failure or delay of such notification, be usefully claimed from the Lessor's insurance company. Mention must be made in the Lessee's insurance policy(ies) that the termination of this or these may only be effective fifteen (15) days after notification made to the Lessor by the insurer. The Lessee delegates to the Lessor the benefit of his or her insurance policies on first request by him, to enable him to exercise his lien as lessor on any compensation that should be paid to him in the event of a claim. 7.9 Liability and Recourse The Lessee expressly waives all claims and actions whatsoever against the Lessor and in particular in the following cases, without this being limiting: - either because of the partial or total destruction of his furniture or his merchandise, or because of loss of use, even if total or partial loss of his business, including intangibles attached to the said business; - in case of theft, embezzlement, attacks, any other criminal acts or other assaults that the Lessee may be victim of in the Building, the Lessee making it his personal business to ensure as he deems proper the guarding and monitoring of the Building and his property; - for any accidents or damage which may occur in the Building, particularly due a result of broken water mains, gas, water, electricity or any equipment whatsoever; - for any irregularity, accident or interruption in water, gas, electricity, heating services, elevators, air conditioning, telephone, sewer or other similar services, the Lessor is not obliged in addition to forewarn the Lessee of such interruptions; and in the event of absence or insufficient maintenance and repairs on the building the Lessee may not request any compensation or reduction in rent for any interruption or irregularity in these services; - In case of defect or failure of the Building, the Tenant waiving invocation of the provisions of sections 1719 (with the exception of article 1719-1°), 1720 and 1721 of the Civil Code; - for any action based on Article 1719-3° of the Civil Code in respect of disturbances that may be caused directly or indirectly by third parties, by assault or otherwise. 7.10 Destruction of the Premises (a) If the Premises are destroyed completely by obsolescence, flood, strike, acts of war, civil war, riot or other cause beyond the control of the Lessor, the Lease will be automatically terminated, without compensation. In the event of expropriation for public utility, nothing may be claimed of the Lessor, all rights of the Lessee being reserved against the expropriating party. Page 37 of 46 (b) If the Premises are destroyed or rendered unusable in part through decay, flood, strike, acts of war, civil war, riot or other cause beyond the control of the Lessor: The Lessor alone shall have the option either to legally terminate without compensation, or not to terminate the lease by granting an abatement of Rent for the partial loss of use. It is specified that in this second case, and provided that the Lessor rebuilds the Building within a time period of three (3) years maximum, the Lease will continue to apply to the whole of the Premises and the abatement of rent will be calculated based on the useful area destroyed.This calculation will be done by an expert selected by common agreement between the Parties. Failing agreement, an expert will be appointed, at the request of Lessor, by the President of the District Court ruling in summary proceedings. The fees and expenses for the proceedings and the expert appointed by agreement or judicially shall be borne equally between the Lessor and the Lessee. 7.11 Transfer Sublet - Lease management - Security pledge The Lessee is prohibited from granting the use of the Premises to anyone and in any form whatsoever, whether temporarily or for free and precariously. The Lessee shall have the right to subcontract all or part his logistical services to any logistician of his choice and in the event of choice of a single logistics provider to transfer the operating license to him. (a) Transfer The Lessee may not assign his lease to anyone except to a successor of his business .In this case, the Lessee shall notify the Lessor at least two (2) months before the expected date of signing of the transfer deed for the business, so that he may contribute in the conveyance, accompanied by the transfer documents, financial statements and operating accounts for the last three fiscal years and documents attesting to the experience and competence of the transferee to operate a site constituting a site classified for protection of the environment. In the case of transfer of the Lease rights (even included in the transfer of the business), the Lessee shall remain jointly guarantor for his assignee and all subsequent assignees for the payment of the Rent, and the Charges and Accessories, and the execution of the articles and conditions of the Lease. It is understood that the term "transfer" includes any form of transfer, capital investment, merger, division. The transfer will become effective only when the original of the Security Deposit fully paid is provided to the Lessor. To be valid, any transfer of the rights to the Lease must be done by deed legally with the contribution of the Lessor duly summoned as provided for above. An executable copy of the deed of transfer shall be issued without charge to the Landlord. Page 38 of 46 (b) Sublet - election of residence The Tenant may not sublet, domicile, or substitute any person or company, even freely, in the Premises except with the prior written consent of the Lessor.It is recalled that logistics services provided in the Building will not be treated as a sublease. The express authorization of partial subletting which may possibly be granted does not imply, in any event, derogation from the indivisibility of the Lease agreement set forth in Article 12.1 of this Contract for the exclusive benefit of the Lessor. In the event that a sublease or domiciliation is nonetheless expressly authorized by the Lessor, the Lessee shall remain the guarantor of the obligations of his sub lessee(s) as well as any resident; he agrees to refer in the text of the sublease and any domiciliation documents to the prior and written consent of the Lessor. The Premises forming an indivisible whole in the common intention of the Parties, the sublease(s) will not be opposable to the Lessor and will include an express waiver by the sub-lessee(s) for any action and any right to renewal of the sublease against the Lessor. Moreover, the Lessee agrees to pay his sub lessee(s) any compensation, of any nature whatsoever, which may be due under in application of the Commercial Code or the Decree on commercial leases, with the Lessor being saved and held harmless from legal action. The outfitting and restoration of the Premises, resulting from sub-letting, are the sole responsibility of the Lessee. This article must be reproduced in all sublease and domiciliation contracts. (c) Lease management The Lessee shall not, without the express and written consent of the Lessor, provide his business operated in the Premises for lease management, under penalty of unenforceability to the Lessor of the lease management granted in violation of this article and even termination of the Lease, if the Lessor sees fit. The Lessee shall personally use the Premises. 7.12 Information and cooperation provided by the Lessee Within fifteen (15) days of a request made to him by the Lessor, the Lessee shall provide to the Lessor, as soon as they have been approved by the general meeting of the Lessee's shareholders, the balance sheets, income statements, schedules and certified annual report, relative to his latest fiscal period. The Lessee agrees to accept, within fifteen (15) days of the Lessor's request, an assignment or partial delegation by the Lessor, to any third party/any bank of the rights to the receivables under the Lease, within the limits of the amounts owed to the Lessor under the Lease as well as in the limit of the amounts that the Lessor owes to the delegate/transferee. In addition, in the event of sale of the Building or transfer of the Lessor's company, the Lessee shall, at the request of the Lessor, at any time issue a statement certifying that: - the usage of the Premises is in compliance with the Lease and its Appendices; Page 39 of 46 - he has complied with all obligations imposed upon him by the Lease and its Appendices; - if necessary, that there exists on the date of the declaration, no legal action pending or disagreement with the Lessor which could lead to a subsequent judicial action. - The Lessor agrees to notify the Lessee not later than within 15 days of the event of the transfer of the Building or of any transfer of control of the leasing Company. 8. At the end of the Lease for any reason whatsoever and on the departure of the Lessee, an inventory of the premises will be performed jointly either by the Parties or by bailiff order in the presence of the Parties and at their shared expense. This inventory of the premises will include notably a statement of the repairs, work, restoration and maintenance work for which the Lessee is responsible under the Lease and not performed by him. The cost to carry out these said repairs and this work will be estimated either by the Building Architect if the Parties are in agreement, or failing agreement by an expert appointed by order made by the President of the District Court in a summary proceeding on the request of the Lessor. The costs estimated by the Building Architect or the expert as well as the costs relating to the establishment of the inventory of the premises, the fees of the expert or of the Building Architect shall be borne by the Lessee and the amount included in the statement of account issued at the end of Lease and referred to in Article 6.4(b)(iii). 9. RESOLUTORY CLAUSE The Lessor shall be entitled, if he sees fit, to invoke the legal termination of the Lease, without the need to have the termination ordered in court nor to complete any other formalities in any of the following situations: (a) failure to pay in full when it is due of a single term of rent, the Charges and Accessories, or any other amounts payable by the Lessee under the Lease, one (1) month after a simple request for payment remains without effect; (b) in the event of failure by the Lessee to carry out any of the clauses, charges and conditions of the Lease, one (1) month after a simple warning remains without effect in the carrying out of the clause, charge or condition at issue. If the Lessee refuses to leave immediately, he will be evicted on simple provisional order, notwithstanding any subsequent offers, conciliations or execution. In all cases, the cost of the order or proceedings and, possibly, the attorney or bailiff fees shall be reimbursed by the Lessee to the Lessor. In addition, in the event that the Lessor pursues legal action or takes precautionary measures against the Lessee, he shall be entitled to compensation at the flat rate of 10% of the amounts for which the procedure is initiated, the said compensation being intended to cover the miscellaneous expenses and fees incurred for the recovery. Page 40 of 46 In all cases where the Lease is terminated pursuant to this Article, the Lessee will be required to pay the rent and the Charges and Accessories up to the date of his departure. Moreover, if, by delaying tactics, the Lessee succeeds in staying temporarily in the Building, he shall be required to pay the Lessor compensation for occupancy equal to double the normal rent (plus the amount of the Charges and Accessories) not subject to review, payable for the period between the date of discharge or termination and that of the actual departure of the Lessee from the Building without the Lessor being required to prove any damages of any kind (any month being due in its entirety). In addition, the amount of the security deposit will be forfeited to the Lessor as a penalty clause, without prejudice to his right to pursue by all legal means, the payment of the amounts owed by the Lessee, the carrying out of the conditions of this Contract (notably insofar as concerns the return of the Building) and payment of all damages-interest. 10. 10.1 Existence of a technological risk prevention plan (PPRT) and a natural risk prevention plan (NRPP) In accordance with Articles L. 125-5 and R. 125-23 to R. 125-27 of the Environment Code, the tenants of real estate property located in an area covered by a prescribed or approved PPRT or NRPP, or in a NRPP for which have been made effective immediately or within a seismic zone, are informed by the lessor of the existence of these risks. The Lessor declares that to his knowledge, the Building is not as of this date located in an area covered by a prescribed or approved PPRT or NRPP, or a NRPP for which some provisions have been made effective immediately or within a seismic zone. Theconsultation of Files on PRIM Net however shows that the Criquebeuf-sur-Seine site is located in a risk zone for the Transportation of Dangerous Goods. A copy of this statement is attached as Appendix 6. The Lessee declares that he has full knowledge of this statement, and that he will make it his personal business without recourse against the Lessor. 10.2 Existence of an event giving rise to insurance compensation for a "natural disaster" or "technological disaster" According to Articles L. 125-5-IV and R 125-27 of the previously cited Environment Code, when a built building has suffered damage leading to the payment of compensation pursuant to Article L. 125-2 or Article L. 128-2 of the Insurance Code, the lessor is obliged to notify the tenant of any event occurring during the period that he has owned the building or of which he himself has been informed in application of these said provisions. The Lessor declares that to his knowledge, the Building has not been subject to any event that has resulted in the payment of insurance compensation for natural disaster risks (Art. L. 125-2 of the Insurance Code) or technological risks (Article L. 128-2 of the Insurance Code). 11. APPLICATION OF PAYMENTS In the event of dispute, the application of payments made by the Lessee will be made by the Lessor in the following order: Page 41 of 46 - recovery and procedural costs, - damages and interest, - interest, - security deposit and adjustment of the security deposit, - rent receivables and occupation allowances; for this item, the application of the charges will be made by priority by the Lessor against the amounts that have not been the subject of dispute, - provisions for expenses. 12. 12.1 The parties expressly agree that the building forms an indivisible whole. The Lease is declared indivisible for the sole benefit of the Lessor. In the case of transfer and subletting expressly authorized by the Lessor, the Lessee, the co-lessees, transferees, assignees and successive assignees will stand jointly both for the payment of the rent, the Charges and Accessories as for the execution of the clauses, charges and conditions of the Lease. 12.2 This Contract expresses the complete agreement between the Parties with respect to the Lease and annuls and replaces any previous agreements, written or verbal, relating directly or indirectly. 12.3 Any modification of the Lease will only result from an amendment signed by both Parties. Such modification shall in no case be inferred either from the tolerance or the passivity of the Lessor, the former remaining free to request at any time and without notice the respect and full application of all terms and conditions of the Lease. 13. REGISTRATION The parties grant all powers to the bearer of a copy of this contract for the purpose of requesting the formality of Registration from the competent Office. 14. 14.1 Notification Any notification provided for under this Contract shall, to be valid, be made to the residence herein elected either by registered letter with return receipt requested, or by order of bailiff. The first presentation of a registered letter will be considered to be the receipt thereof. 14.2 Election of residence Parties elect residence for the purposes of this document, its effects and consequences respectively at their addresses indicated above. To be enforceable, any change of residence must be notified to the other Party in the manner provided for in Article 14.1. Page 42 of 46 14.3 Time periods All of the time periods provided for in this Contract, unless otherwise stated, refer to calendar days and months. In the case of notification, they do not include the day of receipt. Page 43 of 46 3rd PART Specific conditions applicable to the above leases (see calculation sheet in Appendix 10) Specific conditions No. 1 Designation of the premises Cells 1 to 4 representing [-------------]36 net floor area for a warehouse, loading areas, water station and technical areas and 858.65 m² net floor area for offices and social areas in accordance with the plans attached hereto. Duration A fixed and irrevocable duration of 9 complete and consecutive years from June 1, 2011 Rent The amount of the rent is set at: € [-------------]37 excluding VAT/expenses per year [-------------]38. The Lessor grants to the Lessee an exemption of rent for a duration of three months from the date the lease comes into effect. Security deposit The amount of the security deposit is set at: €[ ------------]39 excluding VAT. [------------]40 Provisions for expenses. By way of derogation, for the first year, the common charges will be paid quarterly by the Lessee to the Lessor upon the presentation of invoices. Specific conditions No. 2 Designation of the premises A cell No. 5 of [-------------]41 net floor area for warehouse, loading zone, water station in accordance with the plans on the plan included as an appendix hereto. 36 Confidential information omitted and filed separately with the SEC with a request for confidential treatment by Inter Parfums, Inc., no. 10.144.1.36. 37 Confidential information omitted and filed separately with the SEC with a request for confidential treatment by Inter Parfums, Inc., no. 10.144.1.37. 38 Confidential information omitted and filed separately with the SEC with a request for confidential treatment by Inter Parfums, Inc., no. 10.144.1.38. 39 Confidential information omitted and filed separately with the SEC with a request for confidential treatment by Inter Parfums, Inc., no. 10.144.1.39. 40 Confidential information omitted and filed separately with the SEC with a request for confidential treatment by Inter Parfums, Inc., no. 10.144.1.40. 41 Confidential information omitted and filed separately with the SEC with a request for confidential treatment by Inter Parfums, Inc., no. 10.144.1.41. Page 44 of 46 Duration A fixed and irrevocable duration of 6 complete and consecutive years from June 1, 2011 Rent The amount of the rent is set at: € [------------]42 excluding taxes/expenses per year [------------]43 Security deposit taxes. [-------------]45 Provisions for expenses. Specific conditions No. 3 Designation of the premises An extension of [-------------]²46 net floor area or [-------------]47 net floor area made up of one or two cells in accordance with the plans attached hereto Duration A duration of 9 years from the time of Delivery, including a fixed period of 4 complete and consecutive years, the right to terminate as set out in Article L 145-4 of the Commercial Code at the end of the first three year period will be postponed to the end of the fourth year according to the same terms. Rent The amount of the rent is set based on [-------------]48 €/m² of net floor area plus a rent supplement of [------------]49€/m² of net floor area excluding VAT, for the paved areas corresponding to the normeT34 Category 1, adjusted for the effect of the variation in the index of construction costs between the date the main lease takes effect and the day of Delivery. 42 Confidential information omitted and filed separately with the SEC with a request for confidential treatment by Inter Parfums, Inc., no. 10.144.1.42. 43 Confidential information omitted and filed separately with the SEC with a request for confidential treatment by Inter Parfums, Inc., no. 10.144.1.43. 44 Confidential information omitted and filed separately with the SEC with a request for confidential treatment by Inter Parfums, Inc., no. 10.144.1.44. 45 Confidential information omitted and filed separately with the SEC with a request for confidential treatment by Inter Parfums, Inc., no. 10.144.1.45. 46 Confidential information omitted and filed separately with the SEC with a request for confidential treatment by Inter Parfums, Inc., no. 10.144.1.46. 47 Confidential information omitted and filed separately with the SEC with a request for confidential treatment by Inter Parfums, Inc., no. 10.144.1.47. 48 Confidential information omitted and filed separately with the SEC with a request for confidential treatment by Inter Parfums, Inc., no. 10.144.1.48. 49 Confidential information omitted and filed separately with the SEC with a request for confidential treatment by Inter Parfums, Inc., no. 10.144.1.49. Page 45 of 46 Security deposit The amount of the security deposit will be set at [------------]50 months of the annual rent before taxes as set out above. Provisions for expenses. The amount of the provision for expenses for the first year is set at the amount of the expenses for the previous year in proportion to the surface area. APPENDICES Appendix 1 - Plans Appendix 2 - Description Appendix 3 - Additional submission for operating license Appendix 4 - Building permit order of December 2, 2008 Appendix 5 - List of common areas Appendix 6 - Statement of natural and technological risks Appendix 7 - Availability plan Appendix 8 - Layout plan Appendix 9 - HEQ work statement Schedule 10 - Rent calculation worksheet Completed and signed in two (2) original copies in Paris May 12, 2010 The LESSOR, the company GEMFI, represented by Mr. Serge SAINT-GENES /s/ Serge SAINT-GENES The LESSEE, the company INTER PARFUMS, represented by Mr. Philippe BENACIN /s/ Philippe BENACIN 50 Confidential information omitted and filed separately with the SEC with a request for confidential treatment by Inter Parfums, Inc., no. 10.144.1.50. Page 46 of 46
Exhibit 10.2 Execution Version EMPLOYMENT AGREEMENT THIS EMPLOYMENT AGREEMENT (the “Agreement”) by and between Global GP LLC, a Delaware limited liability company (the “Company”), and Andrew P. Slifka (the “Executive”) shall be effective as of the Closing Date set forth and defined in the Contribution Agreement by and between Global Partners LP and AE Holdings Corp. dated November 21, 2011 (the “Effective Date”). WHEREAS, the Company and the Executive have agreed that the Executive will be employed as an Executive Vice President of the Company and shall serve as the President of the Alliance Gasoline Division of Global Partners LP, a Delaware limited partnership (the “Partnership”) of which the Company is the general partner, and WHEREAS, the Company and the Executive mutually desire to agree upon the terms of the Executive’s employment by the Company, and to agree as to certain benefits of such employment. NOW, THEREFORE, for and in consideration of the mutual promises, covenants and obligations contained herein, the sufficiency of which the Company and the Executive each acknowledges, the Company and the Executive hereby agree as follows: 1. Employment and Term of Employment. Subject to the terms of this Agreement, the employment term hereunder will commence on the Effective Date and continue for thirty-six (36) months; provided that, commencing on the third anniversary of this Agreement (the “Renewal Date”), the term of the Executive’s employment by the Company shall be automatically renewed so as to terminate on the date that is thirty-six (36) months from such Renewal Date, unless the Company or the Executive provides the other with prior written notice of its or his desire not to renew delivered in accordance with Section 20 (“Notice”) at least ninety (90) days in advance of the Renewal Date. The Company and the Executive agree to begin discussions concerning the renewal of this Agreement promptly following the second anniversary of this Agreement with the objective of reaching a final agreement within six months. Notwithstanding the foregoing, either the Company or the Executive may terminate the Executive’s employment with the Company at any time, subject to the terms and conditions of Section 7 hereof. The employment period as described herein is referred to herein as the “Term.” 2. Position and Duties. During the Term, the Company shall employ the Executive as an Executive Vice President of the Company and the Executive shall serve as the President of the Alliance Gasoline Division of the Partnership, or in such other positions as the parties mutually agree. The Executive shall have such powers and duties and responsibilities as are customary to such positions and as are assigned to the Executive by the President and Chief Executive Officer of the Company in connection with the Executive’s management and supervision of the Alliance Gasoline Division and related operations of the Company and of the Partnership. The Executive’s employment shall also be subject to the policies maintained and established by the Company that are of general applicability to the Company’s employees as such policies may be amended from time to time. 3. Other Interests. During the Term, the Executive shall devote his full time, attention, energies and business efforts during normal business hours to his duties and responsibilities as an Executive Vice President of the Company, including serving as the President of the Alliance Gasoline Division of the Partnership. During the Term, except as otherwise restricted by the non-competition covenants set forth in Annex I attached hereto and incorporated herein by reference, the parties recognize and agree that the Executive may engage in other business activities that do not conflict with the business and affairs of the Company or of the Partnership or interfere with the Executive’s performance of his duties and responsibilities hereunder. Additionally, the non-competition covenants set forth in Annex I shall apply to the Executive upon separation of service from the Company pursuant to Section 7(c) and Section 7(d) hereof, and in each case, said non-competition covenants shall continue until the first anniversary of the Date of Termination (as defined in Section 7(h) hereof). 4. Duty of Loyalty. (a) The Executive acknowledges and agrees that the Executive owes a fiduciary duty of loyalty to act in the best interests of the Company and of the Partnership. In keeping with such duty, the Executive shall, during the Term, make full disclosure to the Company of all business opportunities pertaining to the business of the Company or of the Partnership or any of its subsidiaries and, during the Term, shall not appropriate for the Executive’s own benefit business opportunities concerning the business of the Company, the Partnership or any of its subsidiaries, except as otherwise permitted by the non-competition covenants set forth in Annex I or as consented to in writing by the Board of (b) The Company shall indemnify the Executive to the extent permitted by the Company’s limited liability company agreement, as amended from time to time, and by applicable law, against all costs, charges and expenses, including without limitation, attorney’s fees, incurred or sustained by the Executive in connection with any action, suit or proceeding to which the Executive may be made a party by reason of being an officer, director or employee of the Company or of the Partnership. In connection with the foregoing, the Executive will be covered under any liability insurance policy that protects the other officers of the Company. 5. Place of Performance. Subject to such business travel from time to time as may be reasonably required in the discharge of his duties and responsibilities as an Executive Vice President of the Company and in his role as President of the Alliance Gasoline Division of the Partnership, the Executive shall perform his obligations hereunder in, or within forty (40) miles of, Waltham, Massachusetts. 2 6. Compensation. (a) Base Salary. During the Term, the Executive shall be entitled to an annual base salary of $425,000, subject to increase as of each January 1 if so determined by the Compensation Committee. The Executive’s base salary, as from time to time increased in accordance with this Section 6(a), is hereafter referred to as “Base Salary.” The Base Salary shall be paid in equal installments pursuant to the Company’s customary payroll policies and procedures in force at the time of payment, but in no event less frequently than monthly. (b) Bonus. From time to time during the Term, the Executive may be eligible to receive a cash bonus (a “Bonus”) in an amount to be determined at the discretion of the Compensation Committee. (c) Incentive Compensation. The Executive shall participate in the annual short-term incentive compensation plan set forth in attached Exhibit A (the “Short-Term Incentive Plan”), and the long-term incentive compensation plan set forth in attached Exhibit B (the “Long-Term Equity-Based Incentive Plan”), and as determined by the Compensation Committee may be eligible to participate in any other incentive plans in which management employees may participate. (d) Reimbursements. During the Term, the Company shall pay or reimburse the Executive for all reasonable expenses incurred by the Executive on business trips, and for all other business and entertainment expenses reasonably incurred or paid by him during the Term in the performance of his services under this Agreement, in accordance with past practice and with the Company’s expense reimbursement policy as in effect from time to time, upon presentation of expense statements or vouchers or such other supporting documentation as the Company may reasonably require. (e) Fringe Benefits. During the Term, the Executive shall be entitled to participate in the Company’s health insurance, 401(k) and other benefit plans in accordance with Company policies and on the same general basis as other executives of the Company. Additionally, the Company shall pay on behalf of the Executive certain membership dues and professional fees for tax and estate planning services in an amount not to exceed $15,000 and the Executive shall be eligible to receive such other benefits as may be approved by the Compensation Committee. (f) Vacation. During the Term, the Executive shall be eligible for 25 days of paid vacation each calendar year with any unused vacation days to be subject to the Company’s standard vacation policy with respect to the carryover or payment for any such unused vacation days. 7. Separation from Service. (a) In General. If the Executive’s employment is terminated for any reason, he (or his estate) shall be paid on the Date of Termination (i) all amounts of Base Salary due and owing up through the Date of Termination, (ii) any previously awarded but unpaid Bonus and short-term cash incentive plan amounts, (iii) all reimbursements of expenses appropriately and 3 timely submitted, and (iv) any and all other amounts that may be due to him as of the Date of Termination (the “Accrued Obligations”). Additionally, the Executive shall be entitled to retain the following items currently supplied to him by the Company: personal computer, laptop computer and iPad. Promptly following the Date of Termination, the Executive shall return to the Company all confidential and proprietary information of the Company in his possession. (b) Termination Due to the Death or Disability of Executive. The Executive’s employment hereunder shall be terminated automatically upon the death or Disability of the Executive. The Company shall pay to the Executive (or his estate) or on his (or its) behalf upon his termination under this Section 7(b) on the Date of Termination or as soon as reasonably practical (but no more than ten days) thereafter the Accrued Obligations. Additionally, the Company shall continue to pay the Executive (or his estate) the Base Salary then in effect as well as all fringe benefits the Executive was receiving as of the Date of Termination through the end of the applicable Term. Furthermore, if the Executive’s employment is terminated due to his Disability, the Company shall pay the monthly amounts due for all group health, dental, life, disability, vision and similar insurance premiums on behalf of the Executive and his spouse and dependents, if any, for 24 months following the Date of Termination and shall pay to the Executive in 24 equal monthly installments commencing on the last day of the month following the last day of the Term an amount equal to the product of 75% and the sum of (i) the Base Salary in effect as of the Date of Termination; and (ii) the average of the aggregate Bonuses and short-term cash incentive amounts awarded to the Executive pursuant to this Agreement, if any, for the two calendar years immediately preceding the termination of this Agreement. (c) Termination by the Company Without Cause or by the Executive for Reasons Constituting Constructive Termination. The Executive’s employment hereunder may be terminated by the Company without Cause or by the Executive for reasons constituting Constructive Termination. The Company shall pay to the Executive upon his termination under this Section 7(c) on the Date of Termination or as soon as reasonably practical (but no more than ten days) thereafter the Accrued Obligations. Additionally, if the Executive’s employment is terminated pursuant to this paragraph 7(c), then (X) if the Date of Termination is before July 1, 2013, the Company shall (1) pay the Executive in a lump sum on the Date of Termination the Base Salary as in effect on the Date of Termination that would have been payable to the Executive for each year or portion of a year commencing on the Date of Termination and ending on the last day of the Term, (2) pay the Executive in a lump sum on the Date of Termination an amount equal to the aggregate Bonus and short-term cash incentive amounts awarded to the Executive pursuant to the terms of this Agreement, if any, in the calendar year immediately preceding the Date of Termination, (3) provide the fringe benefits as in effect on the Date of Termination until the last day of the Term, and (4) pay the Executive, in a lump sum on the Date of Termination, an amount equal to the product of 75% and the sum of (i) the Base Salary as in effect on the Date of Termination and (ii) the average of any Bonuses and short-term cash incentive amounts awarded pursuant to this Agreement, if any, in the two calendar years immediately preceding the Date of Termination (the “Severance Amount”), or (Y) if the Date of Termination is on or after July 1, 2013, (1) all compensation and all benefits to the Executive hereunder shall continue to be provided until the last day of the Term pursuant to the terms of this Agreement, and (2) the Executive shall be paid by the Company an amount equal to the product of 75% and the sum of (i) the Base Salary as in effect on the Date of Termination and (ii) 4 the average of any Bonuses and short-term cash incentive amounts awarded pursuant to this Agreement, if any, in the two calendar years immediately preceding the Date of Termination in twenty-four (24) equal monthly installments commencing on the first day of the month following the month in which the Date of Termination occurs. (d) Termination by the Company for Cause. The Company’s Board of Directors may terminate the Executive’s employment hereunder for Cause, in which case on the Date of Termination, the Executive will receive payment of the Accrued Obligations. Notwithstanding any provision herein to the contrary, prior to a termination for Cause, the following shall apply: (i) the Company will provide notice to the Executive setting forth its intention to terminate the Executive for Cause, describing in detail the nature of the circumstances that support such determination, and the date and time established for a hearing before the Board, which hearing shall be not less than fifteen (15) business days from the date of such notice, (ii) the Executive will have the right to be heard by the Board, and the Executive shall be entitled to representation by counsel at such hearing, provided, however, that such counsel shall be subject to limitations on direct interaction with the Board members during such hearing as such limitations are established by the Board and provided to the Executive with the notice of the hearing, and (iii) following such hearing, the Board may authorize a termination of the Executive’s employment for Cause only with a 2/3 majority vote of the full Board. If the Executive retains counsel for the hearing with the Board, and the Board does not terminate Executive for Cause within five business days following the hearing, the Company shall promptly reimburse the Executive for any legal fees and expenses incurred by him in connection with such a hearing. (e) Nonrenewal of the Agreement. If the Agreement is not renewed by the Company at the end of the applicable Term, and the Executive does not continue to serve as an Executive Vice President of the Company or President of the Alliance Gasoline Division of the Partnership following the expiration of this Agreement pursuant to a different employment agreement with the Company, the Company, upon the Executive’s separation of service from the Company, shall pay the Executive in 12 equal monthly installments an amount equal to the greater of (X) the product of 75% and the sum of (i) the Base Salary in effect as of the end of the Agreement; and (ii) the average of the aggregate Bonuses and short-term cash incentive amounts awarded to the Executive pursuant to this Agreement, if any, for the two calendar years immediately preceding the expiration of this Agreement; and (Y) the Base Salary in effect as of the end of the Agreement. (f) Definitions. (i) For the purposes of this Agreement, “Cause” shall mean the Executive (A) has engaged in gross negligence or willful misconduct in the performance of his duties, (B) has committed an act of fraud, embezzlement or willful breach of a fiduciary duty to the Company or any of its subsidiaries (including the unauthorized disclosure of any material secret, confidential and/or proprietary information, knowledge or data of the Company or any of its subsidiaries); (C) has been convicted of a crime involving fraud or moral turpitude or any felony or (D) has breached any material provision of this 5 Agreement. The Executive must be provided a written notice from the Company, giving him at least 30 days to affect a cure of any claimed occurrence under (A), (B) or (D) above that is capable of being cured, prior to the delivery of any notice described under Section 7(d)(i) hereof. (ii) “Change in Control” shall occur upon: (A) the date that any one person, entity or group (other than Alfred Slifka, Richard Slifka or the Executive, or their respective family members or entities they control, individually or in the aggregate, directly or indirectly (collectively referred to hereinafter as the “Slifkas”)) acquires ownership of the membership interests of the Company that, together with the membership interests of the Company already held by such person, entity or group, constitutes more than 50% of the total voting power of the membership interests of the Company; provided, however, if any one person, entity or group is considered to control more than 50% of the total voting power of the membership interests of the Company, the acquisition of additional membership interests by the same person, entity or group shall not be deemed to be a Change in Control; (B) a consolidation or merger (in one transaction or a series of related transactions) of the Company pursuant to which the holders of the Company’s equity securities immediately prior to such transaction or series of related transactions would not be the holders immediately after such transaction or series of related transactions of at least 50% of the voting power of the entity surviving such transaction or series of related transactions; or (C) the sale, lease, exchange or other transfer (in one transaction or a series of related transactions) of all or substantially all of the assets of the Company to a person other than the Slifkas or any of them. In all respects, the definition of “Change in Control” shall be interpreted to comply with Section 409A(a)(2)(A)(v) of the Internal Revenue Code of 1986 (the “Code”) and any successor statute, and/or guidance thereunder, and the provisions of Treasury Regulation Section 1.409A and any successor regulation and guidance thereto; provided, however, an interpretation in compliance with Section 409A of the Code shall not expand the definition of Change in Control in any way or cause an acquisition by the Slifkas to result in a Change in Control. (iii) “Constructive Termination” means termination of this Agreement by the Executive as a result of any (A) substantial diminution, without the Executive’s written consent, in the Executive’s working conditions consisting of (1) a material reduction in the Executive’s duties and responsibilities, (2) any change in the reporting structure so that the Executive no longer reports solely to the President and Chief Executive Officer of the Company, or (3) a relocation of the Executive’s place of work further than forty (40) miles from Waltham, Massachusetts, or (B) a material breach of this Agreement by the Company. To be able to terminate his employment with the Company for Constructive Termination, the Executive must provide notice to the Company of the existence of any of the conditions set forth in the immediately preceding sentence within 90 days of the initial existence of such condition(s), and the Company must fail to remedy such condition(s) within 30 days of such notice. In no event shall the 6 Date of Termination in connection with a Constructive Termination occur any later than one year following the initial existence of the condition(s) constituting a Constructive Termination hereunder. (iv) “Disability” shall mean a physical or mental condition which (A) renders the Executive, with or without reasonable accommodation, unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, or (B) by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, results in the Executive receiving income replacement benefits for a period of not less than three (3) months under an accident and health plan covering employees of the Company. (g) Notice of Termination. Any termination or non-renewal (except due to the death of Executive) by the Company or the Executive shall be communicated by written Notice of Termination to the other party hereto. For purposes of this Agreement, a “Notice of Termination” shall mean a notice which (i) shall state the effective date of such termination, (ii) shall indicate the specific termination provision in this Agreement relied upon and (iii) shall set forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of the Executive’s employment under the provision so indicated. Any such notice shall be provided in accordance with the requirements of Section 20 hereof. Any notice of Constructive Termination by the Executive shall be given by the Executive within 90 days of the initial existence of the condition upon which the Constructive Termination is based. (h) Date of Termination. The “Date of Termination” shall mean (i) the date of death, if the Executive’s employment is terminated because of death, (ii) the date the Executive is determined to have a Disability, if the Executive’s termination is based on his Disability, and (iii) if the Executive’s employment is terminated for any other reason, the date specified in the Notice of Termination, which date shall be in accordance with the timing rules set out in (d) or (g) of this Section 7, as applicable. With respect to any compensation payable under this Agreement that is subject to Section 409A of the Code, references to the Executive’s Date of Termination or termination of employment (and variations thereof) shall be deemed to refer only to the Executive’s “separation from service” within the meaning of Section 1.409A-1(h) of the U.S. Treasury Regulations, applying the default terms thereof. (i) Delayed Payments. Notwithstanding any other provision with respect to the timing of payments under this Section 7, if, at the time of the Executive’s termination, the Executive is deemed to be a “specified employee” (within the meaning of Section 409A of the Code, and any successor statute, regulation and guidance thereto) of the Company, then only to the extent necessary to comply with the requirements of Section 409A of the Code, any payments to which the Executive may become entitled under Section 7 as a result of his “separation from service” (within the meaning of Section 409A of the Code, and any successor statute, regulation and guidance thereto) which are subject to Section 409A of the Code (and not otherwise exempt from its application) will be withheld until the first business day of the seventh month following the termination of the Executive’s employment, at which time the Executive 7 shall be paid an aggregate amount equal to six months of payments otherwise due to the Executive under the terms of this Section 7, as applicable, plus (to the extent not prohibited by Section 409A of the Code) interest on such amounts at the then applicable prime rate of interest as established from time to time by Bank of America Corporation or its successor. After the first business day of the seventh month following the termination of the Executive’s employment and continuing each month thereafter, the Executive shall be paid the regular payments otherwise due to the Executive in accordance with the terms of this Section 7, as applicable. (j) Nonsolicitation of Employees. The Executive agrees that for a period of one year following his Date of Termination he will not solicit or induce any employee of the Company or of the Partnership or any of its subsidiaries to terminate his/her employment with, or otherwise cease his/her relationship with the Company or the Partnership or its subsidiaries. (k) Nondisparagement. Each of the Company and the Executive agree not to make any disparaging comments or remarks, orally or in writing, about the other party following the termination or expiration of this Agreement. 8. Section 409A. The parties hereto intend that this Agreement comply with the requirements of Section 409A of the Code and the regulatory guidance thereunder. If any provision provided herein may result in the imposition of an additional tax or penalty under the provisions of Section 409A of the Code, the Executive and the Company agree to amend any such provision to avoid imposition of any such additional tax, to the extent possible, in the manner that the Executive and the Company mutually agree is appropriate to comply with Section 409A of the Code; provided that, to the extent possible, any such amendment shall minimize any decrease in the payments or benefits to the Executive contemplated herein. 9. Confidential Information; Unauthorized Disclosure. (a) During the Term and for the period ending two years following the Date of Termination, the Executive shall not, without the written consent of the Board or a person authorized thereby, disclose to any person, other than an employee of the Company, the Partnership or its subsidiaries or a person to whom disclosure is reasonably necessary or appropriate in connection with the performance by the Executive of his duties as an Executive Vice President of the Company and the Partnership, any secret, confidential and/or proprietary information, knowledge or data obtained by him while in the employ of the Company or any of its affiliates with respect to the Company, the Partnership or any of its subsidiaries and their respective businesses, the disclosure of which he knows or should know will be damaging to the Company, the Partnership or any of its subsidiaries; provided however, that such information, knowledge or data shall not include (i) any information, knowledge or data known generally to the public (other than as a result of unauthorized disclosure by the Executive) or (ii) any information, knowledge or data which the Executive may be required to disclose by any applicable law, order, or judicial or administrative proceeding. (b) The Executive acknowledges that money damages would not be sufficient remedy for any breach of this Section 9 by the Executive, and the Company, the Partnership or its subsidiaries shall be entitled to enforce the provisions of this Section 9 by seeking specific 8 performance and injunctive relief as remedies for such breach or any threatened breach. Such remedies shall not be deemed the exclusive remedies for a breach of this Section 9 but shall be in addition to all remedies available at law or in equity, including the recovery of damages from the Executive and his agents. 10. Payment Obligations Absolute. Except as specifically provided in this Agreement, the Company’s obligation to pay the Executive the amounts and to make the arrangements provided herein shall be absolute and unconditional and shall not be affected by any circumstances, including, without limitation, any set-off, counterclaim, recoupment, defense or other right which the Company or the Partnership (including its subsidiaries) may have against him or anyone else. All amounts payable by the Company shall be paid without notice or demand. The Executive shall not be obligated to seek other employment in mitigation of the amounts payable or arrangements made under any provision of this Agreement, and except as provided in Section 7(c) above, the obtaining of any such other employment shall in no event effect any reduction of the Company’s obligations to make the payments and arrangements required to be made under this Agreement. 11. Successors. This Agreement shall inure to the benefit of and be binding upon the Company and its successors and permitted assigns and any such successor or permitted assignee shall be deemed substituted for the Company under the terms of this Agreement for all purposes. As used herein, “successor” and “assignee” shall be limited to any person, firm, corporation or other business entity which at any time, whether by purchase, merger or otherwise, directly or indirectly acquires the equity of the Company or to which the Company assigns this Agreement by operation of law or otherwise in connection with any sale of all or substantially all of the assets of the Company, provided that any successor or permitted assignee promptly assumes in a writing delivered to the Executive this Agreement and, in no event, shall any such succession or assignment release the Company from its obligations hereunder. The Company will require any successor (whether direct or indirect, by purchase, merger or otherwise) to all or substantially all of the business and/or assets of the Company to assume expressly and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. As used in this Agreement, “Company” shall mean the Company as herein before defined and any successor to all or substantially all of its business and/or assets as aforesaid which assumes and agrees to perform this Agreement by operation of law, or otherwise. 12. Assignment. The Executive shall not have any right to pledge, hypothecate, anticipate or assign this Agreement or the rights hereunder, except by will or the laws of descent and distribution, or delegate his duties or obligations hereunder. 13. Governing Law. The provisions of this Agreement shall be construed in accordance with, and governed by, the laws of the Commonwealth of Massachusetts without regard to principles of conflict of laws. 14. Entire Agreement. This Agreement together with the attached Annex I and Exhibits A and B constitute the entire agreement of the parties with regard to the subject matter hereof, and contain all of the covenants, promises, representations, warranties and agreements 9 between the parties with respect to such subject matter. Without limiting the scope of the preceding sentence, as of the Effective Date, all understandings and agreements preceding the Effective Date and relating to the subject matter hereof are hereby null and void and of no further force and effect, including, without limitation all prior employment and severance agreements, if any, by and between the Company and the Executive; provided that, nothing contained in the foregoing shall be deemed to supersede or make invalid any prior agreements between the Executive and the Company concerning long-term incentive plan awards and any agreement by and between the Executive and the Company, the Partnership or any affiliated entity or member of the Partnership in his capacity as an interest holder, including without limitation the Omnibus Agreement. 15. Modification. Any modification of this Agreement will be effective only if it is in writing and signed by the parties hereto. 16. No Waiver. No failure by either party hereto at any time to give notice of any breach by the other party of, or to require compliance with, any condition or provision of this Agreement shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. 17. Severability. Any provision in this Agreement which is prohibited or unenforceable in any jurisdiction by reason of applicable law shall, as to such jurisdiction, be ineffective only to the extent of such prohibition or unenforceability without invalidating or affecting the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. 18. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together will constitute one and the same Agreement. 19. Withholding of Taxes and Other Employee Deductions. The Company may withhold from any benefits and payments made pursuant to this Agreement all federal, state, city and other taxes as may be required pursuant to any law or governmental regulation or ruling and all other normal employee deductions made with respect to the Company’s employees generally. 20. Notice. For the purpose of this Agreement, notices and all other communications provided for in this Agreement shall be in writing and shall be deemed to have been duly given when delivered by hand, or by a nationally recognized overnight delivery service or mailed by U.S. registered mail, return receipt requested, postage prepaid, addressed to the parties at their addresses set forth below, or to such other addresses as either party may have furnished to the other in writing in accordance herewith except that notices of change of address shall be effective only upon receipt. If to the Company: 10 Global GP LLC P.O. Box 9161 800 South Street Waltham, Massachusetts 02454-9161 Attention: General Counsel, the Chairman of the Board and the Vice Chairman of the Board with a copy to: Alan P. Baden 666 Fifth Avenue 25th Floor New York, New York 10103 If to the Executive: At the Executive’s last known home address listed in the Company’s personnel records from time to time Michael A. Hickey K & L Gates LLP One Lincoln Street Boston, Massachusetts 02111 21. Headings. The section headings have been inserted for purposes of convenience and shall not be used for interpretive purposes. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above. GLOBAL GP LLC By: /s/ Andrew Slifka Andrew Slifka 11 Execution Version ANNEX I Non-Competition Provisions 1. Definitions. The following terms shall have the meanings respectively set forth below in this Annex I: (a) “Affiliate” is defined in the Partnership Agreement. (b) “Assets” means all assets conveyed, contributed or otherwise Transferred by the Sponsors and Affiliates thereof to the Partnership Group at any time, including any such assets held by a Person whose ownership interests were Transferred by the Sponsors and Affiliates thereof to the Partnership Group by means of operation of law or otherwise. (c) “Conflicts Committee” is defined in the Partnership Agreement. (d) “Contribution Agreement” means that certain Contribution, Conveyance and Assumption Agreement, dated as of October 4, 2005, among Global Petroleum Corp., a Massachusetts corporation, Montello Oil Corporation, a New Jersey corporation, Chelsea Terminal Limited Partnership, a Massachusetts limited partnership, Sandwich Terminal, LLC, a Massachusetts limited liability company, the Company, Global Partners LP, a Delaware limited partnership (the “Partnership”), Global Operating LLC, a Delaware limited liability company, and certain other parties, together with the additional conveyance documents and instruments contemplated or referenced thereunder. (e) “Partnership Agreement” means the Third Amended and Restated Agreement of Limited Partnership of the Partnership, dated as of December 9, 2009, as amended from time to time. (f) “Partnership Group” means the Partnership and its direct and indirect Subsidiaries, treated as a single consolidated entity. (g) “Person” means an individual or a corporation, limited liability company, partnership, joint venture, trust, unincorporated organization, association, government agency or political subdivision thereof or other entity. (h) “Retained Assets” means the assets and investments owned by the Sponsors and any of their Affiliates that were not conveyed, contributed or otherwise Transferred to the Partnership Group pursuant to the Contribution Agreement and other documents relating to the transactions referred to in the Contribution Agreement, and not otherwise subsequently Transferred to the Partnership Group, including, without limitation, the replacements and natural extensions thereof. (i) “Sponsors” means Alfred Slifka, Richard Slifka or the Executive, or their respective family members. (j) “Sponsor Persons” means the Sponsors and any Person controlled thereby individually or in the aggregate, directly or indirectly, other than the Company, the Partnership and its direct and indirect Subsidiaries. (k) “Subsidiary” means, with respect to any Person, (a) a corporation of which more than 50% of the voting power of shares entitled (without regard to the occurrence of any contingency) to vote in the election of directors or other governing body of such corporation is owned, directly or indirectly, at the date of determination, by such Person, by one or more Subsidiaries of such Person or a combination thereof, (b) a partnership (whether general or limited) in which such Person or a Subsidiary of such Person is, at the date of determination, a general or limited partner of such partnership, but only if more than 50% of the partnership interests of such partnership (considering all of the partnership interests of the partnership as a single class) is owned, directly or indirectly, at the date of determination, by such Person, by one or more Subsidiaries of such Person, or a combination thereof, or (c) any other Person (other than a corporation or a partnership) in which such Person, one or more Subsidiaries of such Person, or a combination thereof, directly or indirectly, at the date of determination, has (i) at least a majority ownership interest or (ii) the power to elect or direct the election of a majority of the directors or other governing body of such Person. (l) “Transfer” including the correlative terms “Transferring” or “Transferred” means any direct or indirect transfer, assignment, sale, gift, pledge, hypothecation or other encumbrance, or any other disposition (whether voluntary, involuntary or by operation of law) of the Assets, any assets, property or rights. Capitalized terms that are used and not defined in this Annex I shall have the meanings respectively ascribed to them in the Employment Agreement by and between the Company and the Executive to which this Annex I is attached. 2. Restricted Investments and Businesses. During the Term, except as expressly permitted by Section 3 below, the Executive and his Affiliates other than the Company, the Partnership and its direct and indirect Subsidiaries, shall be prohibited from engaging in or acquiring or investing in any business having assets engaged in the following businesses: (a) wholesale and/or retail marketing, sale, distribution and transportation (other than transportation by truck) of refined petroleum products, crude oil, natural gas, ethanol, propane and/or biofuels; 2 (b) storage of refined petroleum products, crude oil, natural gas, ethanol, propane, biofuels and/or asphalt or asphalt products in connection with any of the activities described in 2(a) above; and (c) such other activities in which the Partnership or its subsidiaries are engaged at any time during the Term or, to the knowledge of the Executive, the Partnership or its subsidiaries are planning to become engaged. 3. Exceptions to Restricted Investments and Businesses. Notwithstanding any provision of Section 2 to the contrary, the Executive and his Affiliates may engage in the following activities under the following circumstances: (a) the ownership and/or operation of (i) any of the Retained Assets, and (ii) any other ownership interests held by the Sponsors and/or their Affiliates as of the date of execution of this Agreement (the “Pre-Existing Holdings”); (b) the ownership, individually or collectively, of not more than Five Hundred Thousand Dollars ($500,000) of ownership interests of a publicly traded entity that competes with the Partnership Group, so long as none of the Slifkas serves on the board of directors of such entity; provided, however, that Pre-Existing Holdings held by the Executive and his Affiliates may exceed the ownership threshold set forth in this Section 3(b), and (c) the acquisition of or the investment in any asset or business that competes with any business of the Partnership (each such asset or business, a “Competing Asset or Business”); provided the Partnership has been offered the opportunity to acquire such Competing Asset or Business in accordance with the provisions of Section 4 below and the Partnership (with the concurrence of the Conflicts Committee) has elected not to purchase such Competing Asset or Business. 4. Procedures. In the event that the Executive and/or his Affiliates become aware of an opportunity to acquire or invest in a Competing Asset or Business, then as soon as practicable, the Executive and/or his Affiliates shall notify the Company of such opportunity and deliver to the Company all information prepared by or on behalf of the Executive and/or his Affiliates relating to such potential transaction. As soon as practicable but in any event within 30 days after receipt of such notification and information, the Company, on behalf of the Partnership, shall notify the Executive and/or his Affiliates that either (a) the Company, on behalf of the Partnership, has elected, with the concurrence of the Conflicts Committee, not to cause a member of the Partnership Group to pursue the opportunity to acquire or invest in the Competing Asset or Business, or (b) the Company, on behalf of the Partnership, has elected (with the concurrence of the Conflicts Committee) to cause a member Competing Asset or Business. If, at any time, the Company abandons such opportunity with the approval of the Conflicts Committee (as evidenced in writing by the Company following the request of the Executive), the Executive and/or his Affiliates may pursue such opportunity. Any Competing Asset or Business that is permitted to be acquired or invested in by the Executive and/or his Affiliates must be so acquired 3 or invested in (A) within 12 months of the later to occur of (i) the date that the Executive and/or his Affiliates become able to pursue such opportunity in accordance with the provisions of this Section 4, and (ii) the date upon which all required governmental approvals to consummate such acquisition or investment have been obtained, and (B) on terms not materially more favorable to the Executive and/or his Affiliates than were offered to the Partnership. If either of these conditions is not satisfied, the opportunity must be reoffered to the Partnership in accordance with this Section 4. 5. The Executive for himself and his Affiliates agrees and acknowledges that the Partnership Group does not have an adequate remedy at law for the breach by the Executive and/or his Affiliates of the covenants and agreements set forth in this Annex I, and that any material breach by the Executive and/or his Affiliates of the covenants and agreements set forth in this Annex I would result in irreparable injury to the Partnership Group. The Executive for himself and his Affiliates further agrees and acknowledges that any member of the Partnership Group may, in addition to the other remedies which may be available to the Partnership Group, file a suit in equity to enjoin the Executive and/or his Affiliates from such breach, and consents to the issuance of injunctive relief under this Agreement. 6. If any court determines that any provision of this Annex I is invalid or unenforceable, the remainder of such provisions shall not thereby be affected and shall be given full effect without regard to the invalid provision. If any court construes any provision of this Annex I, or any part thereof, to be unreasonable because of the duration of such provision or the geographic scope thereof, such court shall have the power to reduce the duration or restrict the geographic scope of such provision and to enforce such provision as so reduced or restricted. 4 Execution Version EXHIBIT A Short-Term Annual Cash Incentive Plan The Executive shall participate in an annual short-term cash incentive plan with 50% of any cash incentive amounts earned for a fiscal year to be determined based upon the achievement of financial metrics established by the Company’s Compensation Committee (the “financial metrics”) and 50% of such cash incentive amounts to be determined at the discretion of the Company’s Compensation Committee. The annual “award target” cash incentive amount shall be $200,000, and the annual maximum cash incentive amount that may be awarded shall be $400,000. The Company’s Compensation Committee may also establish threshold financial metrics required to be met for any cash incentive amount to be awarded, and a formula for the amount of the cash incentive that will be awarded relative to the amount by which the financial metrics threshold are or are not met or exceeded. The targets, metrics (including any thresholds) and formula will be established by the Company’s Compensation Committee in the first calendar quarter of each fiscal year. Any amounts earned or awarded under any short-term cash incentive plan shall be paid within 2 and ½ months of the end of the fiscal year for which the cash incentives were earned or awarded. Execution Version EXHIBIT B Long-Term Equity-Based Incentive Plan Performance-Restricted Units Executive shall be eligible to participate in the Company’s Long-Term Equity-Based Incentive Plan (the “Plan”) throughout the term of the Employment Agreement. The Company’s Compensation Committee shall determine whether and in what amounts to grant the Executive Performance-Restricted Units, Phantom Units or some functional equivalent of Global Partners LP, and shall establish the terms and conditions of such grants, including the timing of the grants, the vesting periods, if any, and any applicable milestones, all in accordance with the Plan and in compliance with Section 409A of the Code and any successor
As filed with the Securities and Exchange Commission on August 29, 2011 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM N-Q QUARTERLY SCHEDULE OF PORTFOLIO HOLDINGS OF REGISTERED MANAGEMENT INVESTMENT COMPANY Investment Company Act file number 811-22503 Rochdale Alternative Total Return Fund LLC (Exact name of registrant as specified in charter) 570 Lexington Avenue New York, New York 10022-6837 (Address of principal executive offices) (Zip code) Kurt Hawkesworth 570 Lexington Avenue New York, New York 10022-6837 (Name and address of agent for service) (800) 245-9888 Registrant's telephone number, including area code Date of fiscal year end:September 30 Date of reporting period:June 30, 2011 Item 1. Schedule of Investments. Rochdale Alternative Total Return Fund LLC SCHEDULE OF INVESTMENTS, June 30, 2011 (Unaudited) Percentage of Long-Term Investments1, 2, 3, 4: Members' Capital Cost Fair Value Life Settlement Contracts: American General Life #U100 5.9 % $ $ American General Life #UM00 AXA Equitable Life #1572 Beneficial Life #BL22 John Hancock Life #9373 John Hancock Life #9379 John Hancock Life #9390 Lincoln National Life #JJ70 Massachusetts Mutual Life #1560 Massachusetts Mutual Life #1563 Penn Mutual Life #8193 Reliastar/ ING #2047 Sun Life #2015 Total Long-Term Investments 58.7 % $ $ Short-Term Investment: Money Market Fund: Federated Prime Obligations Fund-Institutional Class, 0.09% 5 38.8 % $ $ Total Investments 97.5 % $ $ 1 Illiquid securities. 2 Fair valued by Valuation Committee as delegated by the Fund's Board of Managers using the fair value method. 3 All investments are non-income producing. 4 Restricted securities. 5 7-Day Yield. For information on the Fund's policy regarding valuation of investments and other significant accounting policies, please refer to the Fund's most recent semi-annual financial statements. Rochdale Alternative Total Return Fund LLC SCHEDULE OF INVESTMENTS, June 30, 2011 (Unaudited), Continued Summary of Fair Value Exposure The Fund adopted fair valuation accounting standards which establish an authoritative definition of fair value and set out a hierarchy for measuring fair value.These standards require additional disclosures about the various inputs and valuation techniques used to develop the measurements of fair value and a discussion in changes in valuation techniques and related inputs during the period.These standards define fair value as the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date.Management has determined that these standards have no material impact on the Fund’s financial statements. The fair value hierarchy is organized into three levels based upon the assumptions (referred to as “inputs”) used in pricing the asset or liability. These standards state that “observable inputs” reflect the assumptions market participants would use in pricing the asset or liability based on market data obtained from independent sources and “unobservable inputs” reflect an entity’s own assumptions about the assumptions market participants would use in pricing the asset or liability. Various inputs are used in determining the value of the Fund's investments.These inputs are summarized in the three broad levels listed below: Level 1 - Unadjusted quoted prices in active markets for identical assets or liabilities that the Fund has the ability to access. Level 2 - Observable inputs other than quoted prices included in Level 1 that are observable for the asset or liability, either directly or indirectly.These inputs may include quoted prices for the identical instrument on an inactive market, prices for similar instruments, interest rates, prepayment speeds, credit risk, yield curves, default rates and similar data. Level 3 - Unobservable inputs for the asset or liability, to the extent relevant observable inputs are not available, representing the Fund’s own assumptions about the assumptions a market participant would use in valuing the asset or liability, 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 Fund's investments as of June 30, 2011: Level 1 Level 2 Level 3 Total Long-Term Investment Policies $