Accounting Firm. The accounting firm engaged by the Company for general tax purposes as of the day prior to the Change in Control will perform the calculations set forth in Section 9(a). If the firm so engaged by the Company is serving as the accountant or auditor for the acquiring company, the Company will appoint a nationally recognized accounting firm to make the determinations required hereunder. The Company will bear all expenses with respect to the determinations by such firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder will provide its calculations, together with detailed supporting documentation, to the Company within 30 days before the consummation of a Change in Control (if requested at that time by the Company) or such other time as requested by the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it will furnish the Company with documentation reasonably acceptable to the Company that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder will be final, binding and conclusive upon the Company and Executive.
Selected Firm. Emmis and Sinclair will cooperate with the Selected Firm during the term of its engagement. The matters to be resolved by the Selected Firm will be limited to the items specified in the Notice of Disagreement. The resolution of any such disputed item by the Selected Firm will not be more favorable to Sinclair than the amount set forth in the Preliminary Closing Statement or more favorable to Emmis than set forth in the Notice of Disagreement with respect to such item. The Selected Firm’s determination will be based upon such evidence as the Selected Firm reasonably requires in order to reach a decision with respect to the disputed items specified in the Notice of Disagreement, including such reasonable independent review as the Selected Firm may require; provided, that that the Final Closing Statement and the determination of the Final Net Working Capital will become final and binding on the Parties and nonappealable, on the date the Selected Firm delivers its final resolution in writing to the Parties (which final resolution will be delivered promptly following referral by Emmis or Sinclair of such dispute and in any event not more than 45 days following the selection of the Selected Firm). The fees and expenses of the Selected Firm will be borne by the parties as designated by the Selected Firm, which designation will be based upon the inverse proportion of the dollar value of the disputed items resolved in favor of such party (i.e., so that the prevailing party bears a lesser amount of such fees and expenses).
In a Valuation Certificate, the Revised Payable Amount will be calculated as the amount equal to:
Accounting Firm The term “Accounting Firm” means the independent auditors of for the fiscal year immediately preceding the earlier of # the year in which the Termination Date occurred, or # the year, if any, in which occurred the first Change of Control occurring after the Effective Date, and that firm’s successor or successors; unless that firm is unable or unwilling to serve and perform in the capacity contemplated by this Agreement, in which case must select another accounting firm that # is of recognized regional or national standing and # is not then the independent auditors for or any affiliated corporation.
Court Order. Notwithstanding any contrary provision in this Agreement, the Escrow Agent shall disburse the Escrow Funds (or any portion thereof) in accordance with a notice from either or Seller confirming to the Escrow Agent that accompanying the notice is a court order, along with a copy of the order and a written certification by the prevailing party attesting that such court order is final and non-appealable along with written instructions for payment to the relevant parties from an authorized Representative of the instructing party, pursuant to which the court has determined whether and to what extent or Seller are entitled to the Escrow Funds (or any portion thereof), upon which certification and instructions the Escrow Agent may conclusively rely and shall have no responsibility to review the order to which such confirmation and instruction refers.
Confirmation Order. A final, nonappealable Confirmation Order shall have been entered and is not subject to any stay, and, unless waived by [[Organization B:Organization]], the time to appeal the Confirmation Order or to seek review, rehearing, or certiorari with respect to the Confirmation Order must have expired, no appeal or petition for review, rehearing or certiorari with respect to the provisions of the Confirmation Order may be pending, and the Confirmation Order must otherwise be in full force and effect;
No Order. No Governmental Authority shall have enacted, issued, promulgated, enforced or entered any Law or Governmental Order (whether temporary, preliminary or permanent) that has the effect of making the transactions contemplated by this Agreement illegal or otherwise restraining or prohibiting the consummation of such transactions or would # substantially delay the consummation in any material aspect of such transactions, # compel the Group to dispose of all or a material portion of the business or assets of the Group as a result of the consummation of such transactions, or # render any Party unable to consummate such transactions.
Final Order. This Confirmation Order is a Final Order and the period in which an appeal must be filed shall commence upon the entry hereof.
Prior to the beginning of each calendar quarter, Buyer shall provide to Supplier a written forecast of the number of Parts expected to be ordered in the following three (3) month period. Based on the forecast, Supplier shall purchase Raw Materials for the manufacturing, labeling and packaging of the Parts, in such quantities, in Supplier's reasonable judgment, that are required to fill forecasted orders during such period. Buyer shall reimburse Supplier for any Raw Materials which remain in Supplier’s possession following the termination of this Agreement or a decision of Buyer or an agreement of the Parties which render such Raw Materials obsolete or not useable by Supplier hereunder. Reimbursement shall be made at actual cost including appropriate overheads.
Acceptance. Within the Acceptance Window with respect to any interest rate quotes provided pursuant to Section 2(e), the may, subject to [Section 2(g)], elect to accept such interest rate quotes as to not less than $5,000,000 aggregate principal amount of the Shelf [[holders of the Notes:Organization]] specified in the related Request for Purchase. Such election shall be made by an Authorized Officer of the notifying by e‑mail, telephone or telecopier within the Acceptance Window that the elects to accept such interest rate quotes, specifying the Shelf [[holders of the Notes:Organization]] (each such Shelf Note being an “Accepted Note”) as to which such acceptance (an “Acceptance”) relates. The day the notifies of an Acceptance with respect to any Accepted [[holders of the Notes:Organization]] is herein called the “Acceptance Day” for such Accepted [[holders of the Notes:Organization]]. Any interest rate quotes as to which does not receive an Acceptance within the Acceptance Window shall expire, and no purchase or sale of Shelf [[holders of the Notes:Organization]] hereunder shall be made based on such expired interest rate quotes. Subject to [Section 2(g)] and the other terms and conditions hereof, the agrees to sell to a Party, and agrees to purchase and/or cause the purchase by a Party of, the Accepted [[holders of the Notes:Organization]] at 100% of the principal amount of such [[holders of the Notes:Organization]]. As soon as practicable following the Acceptance Day, the , and each Party which is to purchase any such Accepted [[holders of the Notes:Organization]] will execute a confirmation of such Acceptance substantially in the form of [Schedule 2(f)] attached hereto (a “Confirmation of Acceptance”). If the Accepted Note bears a floating interest rate, then the LIBOR Rate Note Margin specified in the Confirmation of Acceptance shall remain constant for the life of such Note. If the should fail to execute and return to within three Business Days following the ’s receipt thereof a Confirmation of Acceptance with respect to any Accepted [[holders of the Notes:Organization]], may at its election at any time prior to ’s receipt thereof cancel the closing with respect to such Accepted [[holders of the Notes:Organization]] by so notifying the in writing.
Acceptance. The Grantee hereby acknowledges receipt of a copy of the Plan and this Agreement. The Grantee has read and understands the terms and provisions hereof and thereof, and accepts the PSUs subject to all of the terms and conditions of the Plan and this Agreement. The Grantee acknowledges that there may be adverse tax consequences upon the vesting or settlement of the PSUs or disposition of the underlying shares and that the Grantee has been advised to consult a tax advisor prior to such vesting, settlement or disposition.
Acceptance. Executive agrees and accepts this Agreement. Executive acknowledges that he has not signed this Agreement relying on anything not set out herein. Executive acknowledges that if he is signing this before , he has decided not to wait for the full twenty-one (21) day period, even though he has the right to do so.
Order of Precedence. The documents listed above shall be deemed to constitute one fully integrated agreement between the Parties. In the event of any conflict or inconsistency among the provisions of the various parts of this Contract, such conflict or inconsistency shall be resolved by giving precedence first to the terms and conditions of this Contract, then to the Appendices and Attachments in the order in which they are listed in Section 1.1; and documents which have been executed in the form specified shall be given precedence in the order in which the form of such document has been listed.
Domestic Relations Order. The Committee may permit accelerated payment of a [Section 409A] Award deferral to the extent necessary to comply with the terms of a domestic relations order (as defined in Code Section 414(p)(1)(B) of the Code), as provided in Treasury Regulation Section 1.409A-3(j)(4)(ii).
Order of Payment. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to you # constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and # but for this provision, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s severance, vesting and other benefits under this Agreement shall be payable either # in full, or # as to such lesser amount which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by [Section 4999], results in the receipt by Executive on an after-tax basis, of the greatest amount of severance benefits under this Agreement notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction shall be made in the following manner: first a pro rata reduction of # cash payments subject to Section 409A and the regulations and authoritative guidance promulgated thereunder to the extent applicable (collectively, “[Section 409A]”) as deferred compensation and # cash payments not subject to Section 409A, and second a pro rata cancellation of # equity-based compensation subject to Section 409A as deferred compensation and # equity-based compensation not subject to Section 409A. Reduction in either cash payments or equity compensation benefits shall be made pro-rata between and among benefits which are subject to Section 409A and benefits which are exempt from [Section 409A]. The Accountants (as defined below) shall take into account the value of, services provided or to be provided by the Executive (including, without limitation, the Executive’s agreeing to refrain from performing services pursuant to a covenant not to compete or similar covenant, before, on or after the date of a change in ownership or control of the Company (within the meaning of Q&A-2(b) of the final regulations under Section 280G of the Code), such that payments in respect of such services may be considered reasonable compensation within the meaning of Q&A-9 and Q&A-40 to Q&A-44 of the final regulations under Section 280G of the Code and/or exempt from the definition of the term “parachute payment” within the meaning of Q&A-2(a) of the final regulations under Section 280G of the Code in accordance with Q&A-5(a) of the final regulations under Section 280G of the Code. Unless the Company and you otherwise agree in writing, any determination required under this provision shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon you and the Company for all purposes. For purposes of making the calculations required by this provision, 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 you shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this provision. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this provision.
Domestic Relations Order. A payment may be accelerated if such payment is made to an alternate payee pursuant to and following the receipt and qualification of a domestic relations order as defined in Code Section 414(p).
In the event that the entry into this Settlement or the actions contemplated thereby are governed by the restrictions set forth in the Status Quo Order, the Parties, including NAI, hereby waive such restrictions pursuant to paragraph 5 of the Status Quo Order, and will provide written notice to the Delaware Chancery Court of such waiver.
Order of Application. (i) Upon receipt by the Administrative Agent of funds deposited pursuant to [subsection (b)], the Administrative Agent shall distribute them to the Investors, pro rata based on the amount of Yield owing to each of them (as so notified by the Related Funding Agents to the Administrative Agent in accordance with [Section 2.12(d)]), in payment of the accrued and unpaid Yield on the Portion of Investment for the related Rate Period. Upon receipt by the Administrative Agent of funds deposited pursuant to [subsection (c)], the Administrative Agent shall distribute them to the Persons, to the extent and for the purposes and in the order of priority set forth below:
Determinations by Accounting Firm. All determinations required to be made under this [Subsection 4(f)(v)] shall be made by the public accounting firm that is retained by the Company as of the date immediately prior to the Change in Control (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and Executive within fifteen (15) business days of the receipt of notice from the Company or Executive that there has been a Payment, or such earlier time as is requested by the Company. Notwithstanding the foregoing, in the event # the Board shall determine prior to the Change in Control that the Accounting Firm is precluded from performing such services under applicable auditor independence rules or # the Audit Committee of the Board determines that it does not want the Accounting Firm to perform such services because of auditor independence concerns or # the Accounting Firm is serving as accountant or auditor for the person(s) effecting the Change in Control, the Board shall appoint another nationally recognized public accounting firm reasonably acceptable to Executive to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees, costs and expenses (including, but not limited to, the costs of retaining experts) of the Accounting Firm shall be borne by the Company. If Payments are reduced to the Safe Harbor Cap or the Accounting Firm determines that no Excise Tax is payable by Executive without a reduction in Payments, the Accounting Firm shall provide a written opinion to Executive to the effect that the Executive is not required to report any Excise Tax on the Executive’s federal income tax return, and that the failure to report the Excise Tax, if any, on Executive’s applicable federal income tax return will not result in the imposition of a negligence or similar penalty. The determination by the Accounting Firm shall be binding upon the Company and Executive (except as provided in [Subsection 4(f)(v)(C)] below).
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