Miscellaneous Contract Clauses (41,182)

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 the Representatives c/o Barclays Capital Inc., 745 Seventh Avenue, New York, New York 10019, Attention: Syndicate Registration (Fax: (646) 834-8133) and J.P. Morgan Securities LLC, 383 Madison Avenue, New York, New York 10179 (fax: (212) 622-8358),... Attention: Equity Syndicate Desk . Notices to the Company shall be given to it at 21823 30th Drive SE, Bothell, WA 98021 (fax: (425) 527-4115); Attention: Clay B. Siegall, Ph.D., Chief Executive Officer, with a copy to Cooley LLP, 101 California Street, 5th Floor, San Francisco, CA 94111-5800; Attention: Chadwick Mills (fax: (415) 693-2222). (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. View More

Miscellaneous. (a) Borrower hereby confirms that all of the covenants, representations and warranties made in Sections 5, 6, and 7 of the Agreement are true and correct as of the date hereof and that no Default or Event of Default as defined in the Agreement has occurred and is continuing. (b) This Fifth Amendment may be executed in two or more counterparts, each of which shall constitute an original but when taken together shall constitute but one agreement. The exchange of copies of this Fifth Amendment and ...of the signature pages hereof by facsimile transmission shall constitute effective execution and delivery of this Fifth Amendment as to the parties and may be used in lieu of the originals thereof for all purposes. Signatures of the parties transmitted by facsimile shall be deemed to be their original signatures for all purposes. (c) All terms and conditions of the Loan Agreement not expressly amended hereby shall remain in full force and effect as if this Fifth Amendment had not been executed and delivered. To protect Borrower and UMB from misunderstanding or disappointment, any agreements Borrower and UMB reach covering such matters are contained in the Loan Agreement as amended hereby, which is the complete and exclusive statement of the agreement between us, except as we may later agree in writing to modify it. View More

Miscellaneous. (a) This Note is the Revolving Term Note referred to in, and is entitled to the benefits of, the Agreement and the other Loan Documents referred to therein. Reference is made to the Agreement for a description of the relative rights and obligations of the Company, the Bank and the Agent, including rights and obligations of prepayment, collateral securing payment hereof, Events of Default, and rights of acceleration of maturity upon the occurrence of an Event of Default. (b) No delay on the part ...of the holder hereof in exercising any of its options, powers, or rights, or partial or single exercise thereof, shall constitute a waiver thereof. The options, powers, and rights specified herein of the holder hereof are in addition to those otherwise created or permitted by Law, the Agreement, and the other Loan Documents. There are no claims, set-offs, or deductions of any nature as of the date hereof that could be made or asserted by the Company against the Bank and / or the Agent or against any amount due or to become due under this Note; all such claims, set-offs, or deductions are hereby waived by the Company. (c) Delivery of an executed signature page of this Note by telecopy or email (as a .pdf attachment thereto or otherwise) shall be as effective as delivery of a manually executed counterpart of this Note, but shall in any event be promptly followed by delivery of the original manually executed signature page (provided, however, that the failure to do so shall in no event adversely affect the rights of the Bank and / or the Agent hereunder whatsoever). THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF COLORADO, WITHOUT GIVING EFFECT TO CONFLICT OF LAWS PRINCIPLES. View More

Miscellaneous. 7.1Valid Obligation. 7.3Applicable Law. 7.4Severability. 7.5No Waiver. 7.6Notices. 7.7Assignment of Agreement. 7.8Entire Agreement; Amendments. 7.9Dispute Resolution and Arbitration. 7.9.2Arbitration. 7.10Survival. 7.11Headings. 7.12Counterparts. 7.13Taxes. 7.14.1It is intended that this Agreement will comply with Internal Revenue Code Section 409A and any regulations and guidelines issued thereunder (collectively "Section 409A") to the extent this Agreement is subject thereto. 7.14.2If any paym...ents or benefits provided to Executive by Company, either per this Agreement or otherwise, are non-qualified deferred compensation subject to, and not exempt from, Section 409A ("Subject Payments"), the following provisions shall apply to such payments and/or benefits: (i) For payments and benefits triggered by termination of employment, reference to Executive's "termination of employment" (and corollary terms) with Company shall be construed to refer to Executive's "separation from service" from Company (with such phrase determined under Treas. 7.14.3If an amendment of this Agreement is necessary in order for it to comply with Section 409A, the parties hereto will negotiate in good faith to amend this Agreement in a manner that preserves the original intent of the parties to the extent reasonably possible. 7.15Payment by Subsidiaries. View More

Miscellaneous. a. The parties agree to execute such further instruments and to take such further action as may reasonably be necessary to carry out the intent of this Agreement. b. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given if delivered by hand or overnight delivery service or mailed within the continental United States by first class, certified mail, return receipt requested, to the applicable party and addressed as follows...: if to the Company: Vector Group Ltd.4400 Biscayne Boulevard, 10th Floor Miami, Florida 33137Attn: Marc N. Bell, Vice Presidentand General Counsel if to the Executive: Howard M. Lorberat the most recent home address as indicated on the Company's records Addresses may be changed by notice in writing signed by the addressee. c. This Agreement shall not entitle the Executive to any preemptive rights to subscribe to any securities of any kind hereinafter issued by the Company. d. This Agreement shall inure to the benefit of the successors and assigns of the Company and, subject to the restrictions on the Executive herein set forth, be binding upon and inure to the benefit of the Executive, his heirs, executors, administrators, successors and assigns. e. This Agreement contains the entire agreement between the parties hereto with respect to the subject matter contained herein, and supersedes all prior agreements or prior understandings, whether written or oral, between the parties relating to such subject matter. The Board, the Committee or the Subcommittee shall have the right, in its sole discretion, to modify or amend this Agreement from time to time in accordance with and as provided in the Plan; provided, however, that no such modification or amendment shall materially adversely affect the rights of the Executive under this Agreement without the consent of the Executive. The Company shall give notice to the Executive of any such modification or amendment of this Agreement as soon as practicable after the adoption thereof. This Agreement may also be modified or amended by a writing signed by both the Company and the Executive. View More

Miscellaneous. (a) No Further Amendment; Effect of Amendment. Except as expressly amended hereby, the Employment Agreement is in all respects ratified and confirmed and all the terms, conditions, and provisions thereof shall remain in full force and effect. This Amendment is limited precisely as written and shall not be deemed to be an amendment to any other term or condition of the Employment Agreement. This Amendment shall form a part of the Employment Agreement for all purposes, and the parties thereto and ...hereto shall be bound hereby. From and after the execution of this Amendment by the parties hereto, any reference to the Employment Agreement shall be deemed a reference to the Employment Agreement as amended hereby. This Amendment shall be deemed to be in full force and effect from and after the execution of this Amendment by the parties hereto. (b) Counterparts. This Amendment may be executed simultaneously in two or more counterparts, including counterparts bearing a facsimile signature copy, each of which shall be deemed an original but all of which together shall constitute one and the same agreement and shall become effective when one or more counterparts have been signed by each of the Parties and delivered to the other. The Parties intend that a facsimile signature copy on this Amendment shall have the same force and effect as an original signature. [Signatures on following page.] View More

Miscellaneous. 7.1. Interpretation of Sublease. The headings and captions in this Amendment are inserted for convenience of reference only and in no way define, describe or limit the scope or intent of this Amendment or any of its provisions. Where the context so requires, the use of the singular shall include the plural and vice versa and the use of the masculine shall include the feminine and the neuter. 6 7.2. Governing Law; Jurisdiction and Venue. This Amendment and the Sublease shall be governed by and co...nstrued in accordance with the laws of the Commonwealth of Massachusetts. 7.3. No Recording. Neither this Amendment nor any memorandum or short form thereof may be recorded by Sublessee. 7.4. Survival. Any covenants set forth in this Amendment which, by their nature, would reasonably be expected to be performed after the expiration or earlier termination of this Amendment, shall survive the expiration or earlier termination of this Amendment. 7.5. Counterparts. This Amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument. 7.6. Transmission of Sublease by Facsimile or PDF. The transmission of a signed counterpart of this Amendment by facsimile or by portable document file ("PDF") shall have the same force and effect as delivery of an original signed counterpart of this Amendment, and shall constitute valid and effective delivery for all purposes. If either party delivers a signed counterpart of this Amendment by transmission of a facsimile or PDF, it shall also send promptly thereafter by overnight courier or personal delivery a signed original counterpart of this Amendment to the other party, but failure to do so shall not render this Amendment void or voidable by either party. 7.7. Binding Effect; Assignment. Subject to Article 7 of the Original Sublease, this Amendment shall be binding upon, and inure to the benefit of, the parties to this Amendment and their respective successors and assigns. 7.8. Entire Agreement; Requirement for Writing. 7.8.1. This Amendment contains the final and entire agreement of Sublessor and Sublessee and are intended to be an integration of all prior negotiations and understandings with respect to the subject matter hereof. Neither Sublessor nor Sublessee shall be bound by any covenants, agreements, statements, representations or warranties, oral or written, not contained in this Amendment with respect to the subject matter hereof. 7.8.2. No change or modification to this Amendment shall be valid unless the same is in writing and signed by the parties to this Amendment. 7.8.3. No waiver of any of the provisions of this Amendment shall be valid unless the same is in writing and is signed by the party against which it is sought to be enforced. 7.9. Severability. If any provision of this Amendment, or the application thereof to any person, place or circumstance, shall be held by a court of competent jurisdiction to be invalid, unenforceable or void, the remainder of this Amendment and such provisions as applied to other persons, places and circumstances shall remain in full force and effect. 7 7.10. Time of Essence. Time is of the essence of each and every provision of this Amendment of which time is an element. 7.11. Drafts not an Offer to Enter into a Legally Binding Contract. The submission of a draft of this Amendment by one party to another is not intended by either party to be an offer to enter into a legally binding contract. The parties shall be legally bound pursuant to the terms of this Amendment only if and when Sublessor and Sublessee have fully executed and delivered to each other a counterpart of this Amendment. 7.12. Full Force and Effect. As modified by this Amendment the Sublease is in full force and effect. View More

Miscellaneous. (a) Change and Modifications. This Agreement may not be orally changed, modified or terminated, nor shall any oral waiver of any of its terms be effective. This Agreement may be changed, modified or terminated only by an agreement in writing signed by the Company and the Grantee. (b) Notices. All notices, requests, consents and other communications shall be in writing and be deemed given when delivered personally, by telex or facsimile transmission or when received if mailed by first class regis...tered or certified mail, postage prepaid. Notices to the Company or the Grantee shall be addressed as set forth underneath their signatures below, or to such other address or addresses as may have been furnished by such party in writing to the other. (c) Counterparts. For the convenience of the parties and to facilitate execution, this Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same document. The foregoing Agreement is hereby accepted and the terms and conditions thereof hereby agreed to by the undersigned as of the date first above written. ELECTROCORE, INC. By: Name: Title: Address: The undersigned hereby acknowledges receiving and reviewing a copy of the Plan and understands that the RSUs granted herein are subject to the terms of the Plan and of this Agreement. This Agreement is hereby accepted, and the terms and conditions thereof and of the Plan hereby agreed to, by the undersigned as of the date first above written. GRANTEE: Name: DESIGNATION OF BENEFICIARY: 2 EX-10.13 18 d472601dex1013.htm EX-10.13 EX-10.13 Exhibit 10.13 DIRECTORS ANNUAL RESTRICTED STOCK UNIT AGREEMENT UNDER THE ELECTOCORE, INC. 2018 OMNIBUS EQUITY COMPENSATION PLAN Pursuant to the electroCore, Inc. 2018 Omnibus Equity Compensation Plan (the "Plan"), electroCore, Inc., a Delaware corporation (together with all successors thereto, the "Company"), hereby enters into this Restricted Stock Unit Agreement with the undersigned employee (the "Grantee"), pursuant to which the Company will issue the number of shares of the Company's common stock equal to the number of Restricted Stock Units ("RSU's") granted hereunder in accordance with the terms set forth in this agreement (the "Agreement"). Notwithstanding anything in this Agreement to the contrary, the grant of the RSUs pursuant to this Agreement and the issuance of shares of the Company's common stock in settlement of such RSUs shall be subject to, and governed by, all the terms and conditions of the Plan. To the extent there is any inconsistency between the terms of the Plan and of this Agreement, the terms of the Plan shall control. All capitalized terms used in this Agreement and not otherwise defined shall have the respective meanings given such terms in the Plan. Number of RSUs Granted: [ ] Grant Date: [ , 20 ] 1. General. Each RSU represents a right to receive one share of the Company's common stock (a "Share") in accordance with and subject to the terms and conditions of this Agreement and the Plan. By execution of this Award Agreement, the Grantee agrees to be bound by all of the terms and provisions of the Plan, the rules and regulations under the Plan adopted from time to time, and the decisions and determinations of the Committee made from time to time. View More

Miscellaneous. (a) No Rights with Respect to Service. No person shall have any claim or right hereunder to be granted an Award. Neither the adoption, maintenance, or operation of the Plan nor any Award hereunder shall confer upon any person any right with respect to the continuance of his or her employment by or other service with the Company or any Affiliate nor shall they interfere with the rights of the Company or any Affiliate to terminate or otherwise change the terms of such service at any time, includin...g, without limitation, the right to promote, demote or otherwise re-assign any person from one position to another within the Company or any Affiliate. Unless the Committee otherwise provides in any case, the service of a Participant with an Affiliate shall be deemed to terminate for purposes of the Plan when such Affiliate ceases to be an Affiliate of the Company. (b) No Rights as Stockholder. Subject to the provisions of the applicable Award, no Participant or Designated Beneficiary shall have any rights as a stockholder with respect to any shares of Common Stock to be issued under the Plan until he or she becomes the holder thereof. A Participant to whom Common Stock is awarded will be considered the holder of such Common Stock at the time of the Award, except as otherwise provided in the applicable Award. (c) Amendment of Plan. The Board may amend, suspend or terminate the Plan or any portion thereof at any time, subject to such stockholder approval as the Board determines to be necessary or advisable to comply with any tax or regulatory requirement. 10 EX-10.2 5 a2223440zex-10_2.htm EX-10.2 Exhibit 10.2 AXCELIS TECHNOLOGIES, INC. 2012 EQUITY INCENTIVE PLAN As approved by the Shareholders on May 2, 2012, May 14, 2013, and May 13, 2014, and as further amended by the Board of Directors on November 13, 2014 1. Purpose. The purpose of the Axcelis Technologies, Inc. 2012 Equity Incentive Plan (the "Plan") is to attract and retain persons who are expected to make important contributions to the Company and its Affiliates, to provide an incentive for them to achieve the Company's goals, and to enable them to participate in the growth of the Company by granting Awards with respect to the Company's Common Stock. Certain capitalized terms used herein are defined in Section 7 below. View More

Miscellaneous. (a) Except as specifically modified in this Second Amendment, the Agreement, as amended by the First Amendment, shall continue in full force and effect and the Agreement, as amended by the First Amendment and further amended by this Second Amendment, is hereby ratified, confirmed and approved. (b) This Second Amendment will be governed by and construed in accordance with applicable federal laws and, to the extent not inconsistent therewith or preempted thereby, with the laws of the State of Illi...nois, including any applicable statutes of limitation, without regard to any otherwise applicable principles of conflicts of laws or choice of law rules (whether of the State of Illinois or any other jurisdiction) that would result in the application of the substantive or procedural rules or law of any other jurisdiction. (c) This Second Amendment is binding upon and shall inure to the benefit of the Parties and their respective permitted successors and assigns under the Agreement. (d) All capitalized terms not defined in this Second Amendment shall have the same meaning ascribed to those terms in the Agreement, as amended by the First Amendment, or, in the case of the term "Qualified Retirement," in the 2018 and 2019 long-term incentive award provided to Executive. (e) In the event of any conflict between the terms of this Second Amendment and the terms of the Agreement, as amended by the First Amendment, the terms of this Second Amendment shall govern and control. (f) This Second Amendment may be executed in counterparts (including via facsimile or the electronic exchange of portable document format [PDF] copies), and each counterpart will have the same force and effect as an original and will constitute an effective, binding agreement on the part of each of the undersigned. (g) The Recitals are by this reference incorporated herein and made a part of this Second Amendment. View More