EXECUTION VERSION. Amount would exceed the Post-Effective Limit, (ii) the Dealer Group would directly or indirectly so beneficially own in excess of the Threshold Number of Shares, (iii) Dealer would directly or indirectly hold in excess of the Exchange Limit, or (iv) such delivery would result in a violation of the Counterparty Stock Ownership Restriction. If any delivery owed to Dealer hereunder is not made, in whole or in part, as a result of this provision, Counterparty’s obligation to make such delivery shall not be extinguished and Counterparty shall make such delivery as promptly as practicable after, but in no event later than one Scheduled Trading Day after, Dealer gives notice to Counterparty that, after such delivery, (i) the Share Amount would not exceed the Post-Effective Limit, (ii) the Dealer Group would not directly or indirectly so beneficially own in excess of the Threshold Number of Shares, (iii) Dealer would not directly or indirectly hold in excess of the Exchange Limit, or (iv) such delivery would not result in a violation of the Counterparty Stock Ownership Restriction, as applicable. In addition, notwithstanding anything herein to the contrary, if any delivery owed to Dealer hereunder is not made, in whole or in part, as a result of the immediately preceding paragraph, Dealer shall be permitted to make any payment due in respect of such Shares to Counterparty in two or more tranches that correspond in amount to the number of Shares delivered by Counterparty to Dealer pursuant to the immediately preceding paragraph. Counterparty represents and warrants to, and agrees with Dealer that, ownership positions of Counterparty’s common stock held by Dealer or any of its affiliates solely in its capacity as a nominee or fiduciary (where Dealer and such affiliates have no economic interest in such positions) do not constitute “ownership” by Dealer, and Dealer shall not be deemed or treated as the beneficial or constructive “owner” of such positions, in each case, for purposes of Article VIII of the LLC Operating Agreement, except for purposes of Section 8.1(d) thereof, and Counterparty shall interpret the LLC Operating Agreement in accordance with the foregoing. Dealer represents and warrants that, as of the Trade Date, if Dealer received the maximum number of Shares hereunder assuming both (i) Physical Settlement applies and (ii) no restrictions on the delivery of Shares hereunder were applicable, then the Counterparty Stock Ownership Restriction would not app...
EXECUTION VERSION at any meeting of securityholders of the Company (including in connection with any combined or separate vote of any sub-group of securityholders of the Company that may be required to be held and of which sub-group the Securityholder forms part) or at any adjournment or postponement thereof or in any other circumstances upon which a vote, consent or other approval of all or some of the shareholders or other securityholders of the Company is sought (including by written consent in lieu of a meeting), the Securityholder shall cause its Subject Securities (which have a right to vote at such meeting) to be counted as present for purposes of establishing quorum and shall vote (or cause to be voted) its Subject Securities (which have a right to vote at such meeting) against any Acquisition Proposal and/or any matter that could reasonably be expected to delay, prevent, impede or frustrate the successful completion of the Arrangement and each of the transactions contemplated by the Arrangement Agreement (the “Prohibited Matters”);
EXECUTION VERSION accept, enter into, or propose publicly to accept or enter into, any agreement, understanding or arrangement effecting or related to any Acquisition Proposal or potential Acquisition Proposal;
EXECUTION VERSION its Subject Securities (which have a right to vote at such meeting) to be counted as present for purposes of establishing quorum and shall vote (or cause to be voted) its Subject Securities (which have a right to vote at such meeting) against any Purchaser Acquisition Proposal and/or any matter that could reasonably be expected to delay, prevent, impede or frustrate the successful completion of the Arrangement and each of the transactions contemplated by the Arrangement Agreement (the “Prohibited Matters”);
EXECUTION VERSION the Securityholder shall, as a holder of Subject Securities, cooperate with the Company and the Purchaser to successfully complete the Arrangement and this Agreement and to oppose any of the Prohibited Matters; and
EXECUTION VERSION. Securityholder is and will be immediately prior to the Effective Date, the registered and/or beneficial owner of the Subject Securities, with good and marketable title thereto, free and clear of any and all Liens.
EXECUTION VERSION. Divesting Party shall arrange for the transfer of (i) all of its rights, title and interest in any such Collaboration IP, and (ii) all substantive documentation pertaining to such former Collaboration Product, if any. Following assignment of the applicable Collaboration IP to the Non-Divesting Party (the Assigned Patents), the Non-Divesting Party shall be solely responsible for the further preparation, filing, prosecution and maintenance of any Assigned Patents at its own costs. The Divesting Party may negotiate in good faith licenses to use the Assigned Patents outside of the collaboration hereunder; the last two sentences of Section 9.1d shall apply mutatis mutandis. Should the Continuing Party decide not to file or to abandon or let lapse an Assigned Patent regarding such Unilateral Product, the Continuing Party shall notify the Opt-Out Party of such decision at least [***] calendar days prior to the expiration of any deadline relating to such activities, and the Opt-Out Party shall thereafter have the right, but not the obligation, to assume responsibility for filing, prosecuting and maintaining such Assigned Patent, at its sole expense. If the Opt-Out Party does elect to pursue such filing, prosecution or maintenance of such Assigned Patent, then it shall notify the Continuing Party of such election, and the Continuing Party shall execute such documents of transfer or assignment and perform such acts as may be reasonably necessary to preserve and transfer to the Opt-Out Party free of charge all its right, title and interest to any such Assigned Patent in such country. Biontech agrees and acknowledges that Genmab shall remain the sole owner of the DuoBody Platform and the Inert Format Technology, and that any activities by Biontech as the Non-Divesting Party under this Section 9.1f that pertains to the DuoBody Platform and/or the Inert Format Technology shall at all times be subject to Genmab’s prior consultation, review and written consent, such consent not to be unreasonably withheld.
EXECUTION VERSION. If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company, the Attorney-in-Fact for the Vertical Entities and TMG a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Underwriters, the Company and the Selling Shareholders in accordance with its terms. Very truly yours, TORNIER N.V. By /s/ Xxxxx XxXxxxxxx Title: Chief Financial Officer TMG HOLDINGS COÖPERATIEF U.A. By /s/ Xxxx X. Xxxxxx Xxxx X. Xxxxxx By /s/ Guido X.F.M. Xxxxxxxxxxxxx Xxxxx X.F.M. Nieuwenhuizen [Signature Page to Underwriting Agreement] By: /s/ Xxxxx X. Xxxxx Xxxxx X. Xxxxx Title: Attorney-in-Fact [Signature Page to Underwriting Agreement] CONFIRMED AND ACCEPTED, as of the date first above written: By: X.X. XXXXXX SECURITIES LLC By /s/ Xxxxxx Xxxxxxx By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED By /s/ Xxx Xxxxx For themselves and as Representatives of the other Underwriters named in Schedule A hereto. The public offering price per share for the Securities shall be $16.15. The purchase price per share for the Securities to be paid by the several Underwriters shall be $15.3425, being an amount equal to the public offering price set forth above less $0.8075 per share, subject to adjustment in accordance with SECTION 2(b) for dividends or distributions declared by the Company and payable on the Initial Securities but not payable on the Option Securities. Name of Underwriter Number of Initial Securities X.X. Xxxxxx Securities LLC 2,520,000 Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated 2,520,000 BMO Capital Markets Corp. 560,000 Xxxxx Fargo Securities, LLC 560,000 SG Americas Securities, LLC 420,000 Xxxxxxx Xxxxx & Company, L.L.C. 420,000 Total 7,000,000 Company: Number of Initial Securities: Number of Option Securities: Tornier N.V. 4,500,000 675,000 Selling Shareholders: Number of Initial Securities: Number of Option Securities: TMG Holdings Coöperatief U.A. 2,300,000 345,000 Vertical Fund I, L.P. 150,000 22,500 Vertical Fund II, L.P. 50,000 7,500
EXECUTION VERSION. For purposes of this Agreement, “
EXECUTION VERSION. The following language shall be added to the end of Section 7(c) of the Employment Agreement: Notwithstanding any provision of the Agreement to the contrary, in the event that any portion of the payments and benefits provided to Executive under this Agreement and any other payments and benefits under any other agreement with or plan of the Company (in the aggregate, “Total Payments”) would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code (the “Excise Tax”), then notwithstanding anything in this Agreement to the contrary the amount payable to Executive under Section 7(c) of the Agreement shall be reduced such that the value of the aggregate Total Payments that Executive is entitled to receive shall be approximately one dollar ($1) less than such maximum amount (the “Capped Total Payments”). Unless otherwise elected by the Executive, to the extent permitted under Code Section 409A (as defined below), any reduction shall first be applied to the Control Change Severance Payment benefits which are not subject to Code Section 409A and then to the Control Change Severance Payment benefits which are subject to Code Section 409A, if any. The determination of the Capped Total Payments amount shall be made in writing in good faith by a nationally recognized independent certified public accounting firm selected by the Company and approved by the Executive.
