By Seller At Closing, Seller shall deliver to Buyer the following:
By Parent Parent and Merger Sub shall give prompt notice to the Company in writing of any representation or warranty made by it contained in this Agreement becoming untrue or inaccurate, or any failure of Parent to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement, in each case, such that the conditions set forth in Section 7.3(a) or Section 7.3(b) would not be satisfied.
By Sellers Subject to the limitations set forth in this Article 10, from and after the Closing Date, Sellers (including Parent), jointly and severally, shall indemnify, save and hold harmless Buyer, its Affiliates and Subsidiaries, and its and their respective Representatives, from and against any and all costs, losses, Taxes, Liabilities, obligations, damages, lawsuits, deficiencies, claims, demands, and expenses (whether or not arising out of third-party claims), including, without limitation, interest, fines penalties, costs of mitigation, losses in connection with any Environmental Law (including, without limitation, any clean-up or remedial action), other losses resulting from any shutdown or curtailment of operations, damages to the environment, attorneys' fees and all amounts paid in investigation, defense or settlement of any of the foregoing, including any of the foregoing incurred or suffered by any Entity (herein, "Damages"), incurred in connection with, arising out of, resulting from or incident to (i) any breach of any representation or warranty or the inaccuracy of any representation, made by Sellers, or any of them, in or pursuant to this Agreement, disregarding for the purpose of this Section 10.4(a) in determining whether there has been a breach by Sellers of any representation or warranty set forth in this Agreement any materiality standards or exceptions included in the representation or warranty at issue; (ii) any breach of any covenant or agreement made by Sellers, or any of them, in or pursuant to this Agreement; (iii) any Excluded Liability or (iv) any Liabilities (y) for or arising out of or related to the violation by any Seller or Entity of any Health Care Laws prior to the Closing or (z) for or arising out of or related to any action taken or omission occurring prior to the Closing which, with notice, passage of time or both (whether before or after the Closing) would result in a violation by any Seller or any Entity, or any predecessor-in-interest to any Seller or Entity of an interest in any Entity, of any Health Care Law.
By__________________________ Exhibit to Primary Warrant Neither this Warrant nor the shares of Common Stock issuable on exercise of this Warrant have been registered under the Securities Act of 1933. None of such securities may be transferred in the absence of registration under such Act or an opinion of counsel to the effect that such registration is not required. USCI, INC. WARRANT [SECONDARY] DATED: Number of Shares: Holder: Address: _______________________________ 1. THIS CERTIFIES THAT the Holder is entitled to purchase from USCI, INC., a Delaware corporation (hereinafter called the "Company"), the number of shares of the Company's common stock ("Common Stock") set forth above, at an exercise price equal to $5.00 per share. This Warrant may be exercised in whole or in part at any time prior to expiration. 2. All rights granted under this Warrant shall expire on the fifth anniversary of the date of issuance of this Warrant. 3. [omitted] 4. Notwithstanding anything to the contrary contained herein, Holder shall have the right to exercise this Warrant at any time only so long as and to the extent that, after taking into account any shares of Common Stock otherwise beneficially owned by Holder (whether under any convertible notes owned by Holder or otherwise) , such exercise would not cause the Holder then to be the "beneficial owner" of more than 4.99% of the Company's then outstanding Common Stock. For purposes hereof, the term "beneficial owner" shall have the meaning ascribed to it in Section 13(d) of the Securities Exchange Act of 1934. The opinion of legal counsel to Holder, in form and substance satisfactory to the Company and the Company's counsel, shall prevail in all matters relating to the amount of Holder's beneficial ownership. 5. This Warrant and the Common Stock issuable on exercise of this Warrant (the "Underlying Shares") may be transferred, sold, assigned or hypothecated, only if registered by the Company under the Securities Act of 1933 (the "Act") or if the Company has received from counsel to the Company a written opinion to the effect that registration of the Warrant or the Underlying Shares is not necessary in connection with such transfer, sale, assignment or hypothecation. The Warrant and the Underlying Shares shall be appropriately legended to reflect this restriction and stop transfer instructions shall apply. The Holder shall through its counsel provide such information as is reasonably necessary in connection with such opinion.
By Purchaser Purchaser represents and warrants to Seller that:
No Improper Use of Materials During his or her employment with the Company, Employee will not improperly use or disclose any Confidential Information or trade secrets, if any, of any former employer or any other person to whom Employee has an obligation of confidentiality, and Employee will not bring onto the premises of the Company any unpublished documents or any property belonging to any former employer or any other person to whom Employee has an obligation of confidentiality unless consented to in writing by that former employer or person.
Testing-the-Waters The Company has not (i) alone engaged in any Testing-the-Waters Communication other than Testing-the-Waters Communications with the consent of the Representative with entities that are qualified institutional buyers within the meaning of Rule 144A under the Act or institutions that are accredited investors within the meaning of Rule 501 under the Act or (ii) authorized anyone other than the Representative to engage in Testing-the-Waters Communications. The Company reconfirms that the Representative has been authorized to act on its behalf in undertaking Testing-the-Waters Communications. The Company has not distributed any Written Testing-the-Waters Communications other than those listed on Schedule III hereto. “Written Testing-the-Waters Communication” means any Testing-the-Waters Communication that is a written communication within the meaning of Rule 405 under the Act.
By Buyer At Closing, Buyer shall deliver to Seller the following:
By Mutual Consent The Executive’s employment pursuant to this Agreement may be terminated at any time by the mutual written agreement of the Company and the Executive.
Testing-the-Waters Materials If at any time following the distribution of any Written Testing-the-Waters Communication there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication 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 will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission.
