Miscellaneous Contract Clauses (41,182)

Miscellaneous. The recitals set forth above are complete and accurate in all respects, and are hereby incorporated into this Amendment. Unless indicated otherwise, all capitalized terms used in this Amendment shall have the same meaning as set forth in the Agreement or the Note, as applicable. This Amendment shall be governed by, and construed in accordance with, the laws of the State of Florida. This Amendment may be executed in counterparts, each of which shall be an original and both of which together shall... constitute one and the same instrument. Any such counterpart, to the extent delivered by means of a facsimile machine or by .pdf, .tif, .gif, .jpeg or similar attachment to an electronic mail message, shall be treated in all manner and respects as an original executed counterpart and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. Each party hereby irrevocably waives any objection that it has or may have in the future as to the validity of any such electronic transmission of a signature page. The parties have executed this Amendment to Seed Capital Acceleration Loan Agreement and Seed Capital Loan Note as of the Effective Date. MAKER: Sun BioPharma, Inc. By: Name: David Kaysen Title: Chief Executive Officer Date: LENDER: INSTITUTE FOR COMMERCIALIZATION OF PUBLIC RESEARCH, INC. By: Name: Jane Teague Title: Chief Operating Officer Date: EXHIBIT A Note EX-10.1 2 ex_144620.htm EXHIBIT 10.1 ex_144620.htm Exhibit 10.1 AMENDMENT TO SEED CAPITAL ACCELERATOR LOAN AGREEMENT AND SEED CAPITAL LOAN NOTE This Amendment to Seed Capital Acceleration Loan Agreement and Seed Capital Loan Note (this "Amendment") is made and entered into as of the date below and effective as of October 26, 2017 (the "Effective Date") by and between Sun BioPharma, Inc., a Delaware corporation ("Maker") and Institute for Commercialization of Public Research, Inc. ("Lender"). RECITALS A. Maker and Lender entered into that Seed Capital Accelerator Loan Agreement dated October 26, 2012 (the "Loan Agreement") pursuant to which Maker issued to Lender that Seed Capital Loan Note dated October 26, 2012 whose total principal amount is $300,000 and attached hereto as Exhibit A (the "Note"). B. Maker and Lender desire to extend the Maturity Date of the Note as set forth in, and on the terms and conditions of, this Amendment. NOW, THEREFORE, in consideration of the promises set forth in this Amendment, and for other good and valuable consideration, the receipt and adequacy of which are by execution of this Amendment acknowledged, Maker and Lender agree as follows: 1. Maturity Date. Notwithstanding anything to the contrary in the Loan Agreement or the Note, the Maturity Date of the Note shall be the earliest to occur of the following events: (a) the date on which a Mandatory Repayment Event has occurred or has been deemed to have occurred; or (b) May 1, 2019. View More

Miscellaneous. This Agreement contains the entire agreement between the parties and supersedes and replaces all such prior agreements with respect to matters expressly set forth herein. No modification shall be made to this Agreement except in writing and signed by both parties. This Agreement shall be binding upon the parties and their respective heirs, executors, administrators, successors, assigns and personal representatives.

Miscellaneous. (a) Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted and confirmed by any standard form of telecommunication. Notices to the Underwriters shall be given to c/o J. P. Morgan Securities LLC, 383 Madison Avenue, New York, New York 10179 (fax: (212) 622-8358), Attention: Equity Syndicate Desk and Merrill Lynch, Pierce, Fenner & Smith Incorporated, One Bryant Park, New York, New York 10036, Attention: Synd...icate Department (facsimile: (646) 855-3073), with a copy to ECM Legal (facsimile: (212) 230-8730), with a copy to Latham & Watkins LLP, 12670 High Bluff Drive, San Diego, CA 92130, Attention: Cheston J. Larson and Michael E. Sullivan. Notices to the Company shall be given to it at 5500 Flatiron Parkway, Suite 100, Boulder, Colorado 80301 (fax: (303) 245-0360); Attention: Paul Gross, with a copy to Willkie Farr & Gallagher LLP, 787 Seventh Avenue, New York, NY 10019 (fax: (212) 728-8111); Attention: Thomas Mark. (b) 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 applicable to agreements made and to be performed in such state. (c) Counterparts. This Agreement may be signed in counterparts (which may include counterparts delivered by any standard form of telecommunication), each of which shall be an original and all of which together shall constitute one and the same instrument. (d) Amendments or Waivers. No amendment or waiver of any provision of this Agreement, nor any consent or approval to any departure therefrom, shall in any event be effective unless the same shall be in writing and signed by the parties hereto. (e) Headings. The headings herein are included for convenience of reference only and are not intended to be part of, or to affect the meaning or interpretation of, this Agreement. 29 If the foregoing is in accordance with your understanding, please indicate your acceptance of this Agreement by signing in the space provided below. Very truly yours, CLOVIS ONCOLOGY, INC. By: /s/ Patrick Mahaffy Name: Patrick Mahaffy Title: President and Chief Executive Officer Accepted: As of the date first written above For themselves and on behalf of the several Underwriters listed in Schedule 1 hereto. View More

Miscellaneous. 6.1Term. 6.2Stock Split. 6.3Ownership. 6.4Dispute Resolution. 6.5Notices. 6.6Entire Agreement. 6.7Delays or Omissions. 6.8Amendment; Waiver and Termination. 6.9Assignment of Rights. 6.10Severability. 6.11Additional Investors. 6.12Governing Law. 6.13Titles and Subtitles. 6.14Counterparts. 6.15Aggregation of Stock. 6.16Specific Performance. 6.17Additional Key Holders.

Miscellaneous. (a) Compensation Recovery Policy. Executive acknowledges and agrees that, to the extent the Company adopts any claw-back or similar policy pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act or otherwise, and any rules and regulations promulgated thereunder, he or she shall take all action necessary or appropriate to comply with such policy (including, without limitation, entering into any further agreements, amendments or policies necessary or appropriate to implement and/...or enforce such policy with respect to past, present and future compensation, as appropriate). (b) No delay or omission by the Company in exercising any right under this Agreement shall operate as a waiver of that or any other right. A waiver or consent given by the Company on any one occasion shall be effective only in that instance and shall not be construed as a bar or waiver of any right on any other occasion. (c) The captions of the sections of this Agreement are for convenience of reference only and in no way define, limit or affect the scope or substance of any section of this Agreement. (d) The language in all parts of this Agreement will be construed, in all cases, according to its fair meaning, and not for or against either Party hereto. The Parties acknowledge that each Party and its counsel have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting Party will not be employed in the interpretation of this Agreement. (e) The obligations of Company under this Agreement, including its obligation to pay the compensation provided for in this Agreement, are contingent upon Executive's performance of Executive's obligations under this Agreement. (f) This Agreement may be executed in counterparts, each of which shall constitute an original, but all of which shall constitute one agreement. View More

Miscellaneous. This Agreement may be executed by the Company and Director in any number of counterparts, each of which shall be deemed an original instrument, but all of which together shall constitute but one and the same instrument. Any party may execute this Agreement by facsimile signature and the other party will be entitled to rely on such facsimile signature as evidence that this Agreement has been duly executed by such party. Any party executing this Agreement by facsimile signature will promptly forwa...rd to the other party an original signature page by overnight courier. Director acknowledges that this Agreement does not constitute a contract of employment and does not imply that the Company will continue his service as a director for any period of time. View More

Miscellaneous. a. Effectiveness. From and after the date hereof, all references to the Underwriting Agreement shall mean the Underwriting Agreement as amended by this Letter Agreement. b. Other Provisions Unaffected. Except as modified by this Letter Agreement, the Underwriting Agreement is unchanged and shall continue in full force and effect in accordance with the provisions thereof. c. Amendments. The provisions of this Letter Agreement may not be amended, modified or supplemented, and waivers or consents t...o departure from the provisions hereof may not be given, except by the written consent of all parties hereto. View More

Miscellaneous. If any payment of principal or interest on this Note shall become due on a Saturday, Sunday, or a public holiday under the laws of the State of Delaware, such payment shall be made on the next succeeding business day and such extension of time shall be included in computing interest in connection with such payment. Upon payment in full of all aggregate unpaid principal and interest payable hereunder, this Note shall be surrendered to the Maker for cancellation.

Miscellaneous. (a) Choice of Law. The validity and enforcement of this Agreement and the other Loan Documents, to the extent they involve the creation, perfection, assignment, modification and enforcement of liens and security interests against property located in the state, commonwealth or district in which the Properties are located, are intended to be governed by the laws of the state, commonwealth or district in which the Properties are located. All other aspects of the transaction contemplated by this Agr...eement and the indebtedness evidenced by the Note, and the Loan Documents shall be governed by and construed in accordance with the laws of the State of New York pursuant to Section 5-1401 of the New York General Obligations Law. (b) Severability. Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement. (c) Modifications. No change or modification of this Agreement shall be valid unless the same is in writing and signed by all parties hereto. (d) Complete Agreement. This Agreement and the Loan Documents represent the complete agreement among the parties with regard to the items set forth herein, and Assumption Agreement Berkadia Loan No. 01-0085683 & 01-0086643 21 there are no representations, covenants, warranties, agreements or conditions, oral or written, between the parties not set forth in this Agreement and the Loan Documents. (e) Headings, Schedules and Exhibits. The Article and/or Section headings in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose. The Schedules and Exhibits annexed hereto are hereby incorporated herein as a part of this Agreement with the same effect as if set forth in the body hereof. (f) Counterparts. This Agreement may be executed in any number of counterparts, each of which when taken together shall be deemed an original, but all of which shall together constitute one and the same instrument. (g) Joint and Several Liability. If New Borrower consists of more than one person or entity, each is jointly and severally liable to perform the obligations of New Borrower hereunder, and all representations, warranties, covenants and agreements made by New Borrower are joint and several. View More

Miscellaneous. In addition to the foregoing, the parties to this Agreement agree as follows: (a) This Agreement constitutes the entire agreement between the parties pertaining to the subject matter contained in it and supersedes all prior and contemporaneous agreements, representations and understandings of the parties with respect thereto. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by all parties. (b) This Agreement shall be binding upon, and shall i...nure to the benefit of the parties to it and their respective successors and assigns. (c) The parties agree from time to time to execute such additional documents as are necessary to effectuate the intent of the parties as manifested by this Agreement. (d) This Agreement shall be governed by, and construed in accordance with, the laws of the State of Utah, and the United States of America. (e) Concurrent with the execution of this Agreement, the parties shall execute and acknowledge a memorandum of this Agreement in the form attached hereto as Exhibit D. The executed memorandum of agreement shall be recorded in real estate records of Juab and Utah Counties, Utah. This Agreement will not be recorded. View More