Treatment of Payments Notwithstanding anything in this Agreement or any other plan, arrangement or agreement to the contrary, in the event that an independent, nationally recognized, accounting firm which shall be designated by the Company with the Executive’s written consent (which consent shall not be unreasonably withheld) (the “Accounting Firm”) shall determine that any payment or benefit received or to be received by the Executive from the Company or any of its affiliates or from any person who effectuates a change in control or effective control of the Company or any of such person’s affiliates (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, the “Total Payments”) would fail to be deductible under Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), or otherwise would be subject (in whole or part) to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”) then the Accounting Firm shall determine if the payments or benefits to be received by the Executive that are subject to Section 280G of the Code shall be reduced to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax, but such reduction shall occur if and only to the extent that the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes, and employment, Social Security and Medicare taxes on such reduced Total Payments), is greater than or equal to the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes and employment, Social Security and Medicare taxes on such Total Payments and the amount of Excise Tax (or any other excise tax) to which the Executive would be subject in respect of such unreduced Total Payments). For purposes of this Section 6(a), the above tax amounts shall be determined by applying the highest marginal rate under Section 1 of the Code and under state and local laws which applied (or is likely to apply) to the Executive’s taxable income for the tax year in which the transaction which causes the application of Section 280G of the Code occurs, or such other rate(s) as the Accounting Firm determines to be likely to apply to the Executive in the relevant tax year(s) in which any of the Total Payments is expected to be made. If the Accounting Firm determines that the Executive would not retain a larger amount on an after-tax basis if the Total Payments were so reduced, then the Executive shall retain all of the Total Payments.
Manner and Treatment of Payments (a) Each payment hereunder (except payments pursuant to Sections 3.4, 3.5, 11.3, 11.11 and 11.21) or on the Notes or under any other Loan Document shall be made to the Administrative Agent at the Administrative Agent’s Office, in immediately available funds not later than 11:00 a.m. California time, on the day of payment (which must be a Banking Day). All payments received after such time, on any Banking Day, shall be deemed received on the next succeeding Banking Day. The amount of all payments received by the Administrative Agent for the account of each Lender shall be immediately paid by the Administrative Agent to the applicable Lender in immediately available funds and, if such payment was received by the Administrative Agent by 11:00 a.m., California time, on a Banking Day and not so made available to the account of a Lender on that Banking Day, the Administrative Agent shall reimburse that Lender for the cost to such Lender of funding the amount of such payment at the Federal Funds Rate. All payments shall be made in lawful money of the United States of America.
(b) Borrower hereby authorizes the Administrative Agent to debit the Designated Deposit Account to effect any payment due to the Lenders or the Administrative Agent pursuant to this Agreement. Any resulting overdraft in the Designated Deposit Account shall be payable by Borrower to the Administrative Agent on the next following Banking Day.
(c) Each payment or prepayment on account of any Borrowing shall be applied pro rata according to the outstanding Advances made by each Lender comprising such Borrowing.
(d) Each Lender shall use its best efforts to keep a record (in writing or by an electronic data entry system) of Advances made by it and payments received by it with respect to its Note and, subject to Section 10.6(g), such record shall, as against Borrower, be presumptive evidence of the amounts owing. Notwithstanding the foregoing sentence, the failure by any Lender to keep such a record shall not affect Borrower’s obligation to pay the Obligations.
(e) Each payment of any amount payable by Borrower or any other Party to any Lender under this Agreement or any other Loan Document shall be made free and clear of, and without reduction by reason of, any taxes, assessments or other charges imposed by any Governmental Agency, central bank or comparable authority, excluding (i) taxes imposed on or measured in whole or in part by its overall net income and franchise taxes imposed in lieu of net income taxes by (A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or Eurodollar Lending Office or (B) any jurisdiction (or political subdivision thereof) in which it is “doing business” and (ii) any withholding taxes or other taxes based on gross income imposed by the United States of America for any period with respect to which it has failed to provide Borrower with the appropriate form or forms required by Section 11.21, to the extent such forms are then required by applicable Laws (all such non-excluded taxes, assessments or other charges being hereinafter referred to as “Taxes”). To the extent that Borrower is obligated by applicable Laws to make any deduction or withholding on account of Taxes from any amount payable to any Lender under this Agreement, Borrower shall (1) make such deduction or withholding and pay the same to the relevant Governmental Agency and (2) pay such additional amount to that Lender as is necessary to result in that Lender’s receiving a net after-Tax amount equal to the amount to which that Lender would have been entitled under this Agreement absent such deduction or withholding. If and when receipt of such payment results in an excess payment or credit to that Lender on account of such Taxes, that Lender shall promptly refund such excess to Borrower.
Treatment of Warrants Prior to the Effective Time, the Board of Directors of the Company shall adopt appropriate resolutions and take all other actions necessary and appropriate to provide that, at the Effective Time, (i) each unexpired and unexercised warrant to purchase shares of Common Stock (the “Common Warrants”) pursuant to a contract or agreement to which the Company is a party shall, immediately prior to its termination in accordance with its terms at the Closing, be cancelled and, in exchange therefor, each former holder of any such cancelled Common Warrant shall be converted into a right to receive, in consideration of such cancellation, (a) a payment in cash (subject to any applicable withholding or other Taxes required by applicable Law to be withheld) in an amount equal to the product of (1) the total number of shares of Common Stock subject to such Common Warrant multiplied by (2) the Common Per-Share Merger Consideration less the exercise price per share of Common Stock subject to such Common Warrant (any such amount payable hereunder with respect to any such Common Warrant being referred to as a “Common Warrant Payment”, and the aggregate of all such amounts payable hereunder being referred to as the “Common Warrant Payments”), and (b) the right to receive payments from the General Escrow Account and the Equityholders’ Representative Escrow Account in accordance with the Escrow Agreement and Section 3.3, (ii) each unexpired and unexercised warrant to purchase shares of Series B Preferred Stock (the “Series B Warrants”) pursuant to a contract or agreement to which the Company is a party shall, immediately prior to its termination in accordance with its terms at the Closing, be cancelled and, in exchange therefor, each former holder of any such cancelled Series B Warrant shall be converted into a right to receive, in consideration of such cancellation, (a) a payment in cash (subject to any applicable withholding or other Taxes required by applicable Law to be withheld) in an amount equal to the product of (1) the total number of shares of Series B Preferred Stock subject to such Series B Warrant multiplied by (2) the Series B Preferred Per-Share Merger Consideration less the exercise price per share of Series B Preferred Stock subject to such Series B Warrant (any such amount payable hereunder with respect to any such Series B Warrant being referred to as a “Series B Warrant Payment”, and the aggregate of all such amounts payable hereunder being referred to as the “Series B Warrant Payments”), and (b) the right to receive payments from the General Escrow Account and the Equityholders’ Representative Escrow Account in accordance with the Escrow Agreement and Section 3.3, (iii) each unexpired and unexercised warrant to purchase shares of Series C Preferred Stock (the “Series C Warrants”) pursuant to a contract or agreement to which the Company is a party shall, immediately prior to its termination in accordance with its terms at the Closing, be cancelled and, in exchange therefor, each former holder of any such cancelled Series C Warrant shall be converted into a right to receive, in consideration of such cancellation, (a) a payment in cash (subject to any applicable withholding or other Taxes required by applicable Law to be withheld) in an amount equal to the product of (1) the total number of shares of Series C Preferred Stock subject to such Series C Warrant multiplied by (2) the Series C Preferred Per-Share Merger Consideration less the exercise price per share of Series C Preferred Stock subject to such Series C Warrant (any such amount payable hereunder with respect to any such Series C Warrant being referred to as a “Series C Warrant Payment”, and the aggregate of all such amounts payable hereunder being referred to as the “Series C Warrant Payments”), and (b) the right to receive payments from the General Escrow Account and the Equityholders’ Representative Escrow Account in accordance with the Escrow Agreement and Section 3.3, and (iv) each unexpired and unexercised warrant to purchase shares of Series C-1 Preferred Stock (the “Series C-1 Warrants” and, together with the Common Warrants, the Series B Warrants and the Series C Warrants, the “Warrants”) pursuant to a contract or agreement to which the Company is a party shall, immediately prior to its termination in accordance with its terms at the Closing, be cancelled and, in exchange therefor, each former holder of any such cancelled Series C-1 Warrant shall be converted into a right to receive, in consideration of such cancellation, (a) a payment in cash (subject to any applicable withholding or other Taxes required by applicable Law to be withheld) in an amount equal to the product of (1) the total number of shares of Series C-1 Preferred Stock subject to such Series C-1 Warrant multiplied by (2) the Series C-1 Preferred Per-Share Merger Consideration less the exercise price per share of Series C-1 Preferred Stock subject to such Series C-1 Warrant (any such amount payable hereunder with respect to any such Series C-1 Warrant being referred to as a “Series C-1 Warrant Payment”, and the aggregate of all such amounts payable hereunder being referred to as the “Series C-1 Warrant Payments” and, together with the Common Warrant Payments, the Series B Warrant Payments and the Series C Warrant Payments, the “Warrant Payments”), and (b) the right to receive payments from the General Escrow Account and the Equityholders’ Representative Escrow Account in accordance with the Escrow Agreement and Section 3.3. All such Warrants shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each Certificate which immediately prior to the Effective Time represented such Warrants shall thereafter represent the right to receive the Warrant Payment payable therefor and the right to receive payments from the General Escrow Account and the Equityholders’ Representative Escrow Account in accordance with the Escrow Agreement and Section 3.3. Certificates previously representing Warrants shall be exchanged for the Warrant Payment payable in respect of such Certificates, without interest, upon the surrender of such Certificates in accordance with the provisions of Section 3.1.
Substance Abuse Treatment Information Substance abuse treatment information shall be maintained in compliance with 42 C.F.R. Part 2 if the Party or subcontractor(s) are Part 2 covered programs, or if substance abuse treatment information is received from a Part 2 covered program by the Party or subcontractor(s).
Treatment of Fees The fees described in this Section 5 (a) are not compensation for the use, detention, or forbearance of money, (b) are in addition to, and not in lieu of, interest and expenses otherwise described in this Agreement, (c) are payable in accordance with Section 3.1(c), (d) are non-refundable, and (e) to the fullest extent permitted by Law, bear interest, if not paid when due, at the Default Rate.
Future Treatment of Unallowable Costs Unallowable Costs shall be separately determined and accounted for by Defendants, and Defendants shall not charge such Unallowable Costs directly or indirectly to any contracts with the United States or any State Medicaid program, or seek payment for such Unallowable Costs through any cost report, cost statement, information statement, or payment request submitted by Defendants or any of their subsidiaries or affiliates to the Medicare, Medicaid, TRICARE, or FEHBP Programs.
Treatment of Options (a) Upon and subject to the conditions set forth in this Agreement, immediately prior to the Effective Time, each option to purchase Company Common Stock then outstanding (each, a “Company Option”) to the extent then exercisable (after giving effect to any acceleration resulting from the transactions contemplated by this Agreement), at an exercise price per share less than the Merger Consideration (each such Company Option, a “Cashed Out Option”), shall entitle the holder thereof to receive from Parent as soon as practicable following the Effective Time, an amount in cash, without interest, equal to the product of (x) the total number of shares of Company Common Stock subject to such Company Option multiplied by (y) the excess of the amount of the Merger Consideration over the exercise price per share of Company Common Stock under such Company Option (with the aggregate amount of such payment rounded up to the nearest cent, less applicable taxes, if any, required by Applicable Law to be withheld by the Company or Merger Sub on behalf of such holder).
(b) Upon and subject to the conditions set forth in this Agreement, at the Effective Time, each Company Option other than a Cashed Out Option, granted under any Company Stock Plan and outstanding immediately prior to the Effective Time shall be converted into an option to acquire such number of shares of Parent Common Stock (a “Converted Option”) equal to the product obtained by multiplying (x) the aggregate number of shares of Company Common Stock that were issuable upon exercise of such Converted Option immediately prior to the Effective Time and (y) the quotient obtained by dividing (1) the Merger Consideration by (2) the average of the closing prices of one (1) share of Parent Common Stock, as quoted on NASDAQ for the ten (10) consecutive trading days immediately preceding the Closing Date (the “Exchange Ratio”), rounded down to the nearest whole number of shares of Parent Common Stock. The terms and conditions of the Converted Option, including the vesting schedule thereof (except to the extent otherwise provided in any agreement between the Company and the holder of such Converted Option), shall otherwise remain the same as the terms and conditions of the Company Option, except that the exercise price per share of each Converted Option shall be equal to the quotient obtained by dividing (1) the exercise price per share of such Converted Option immediately prior to the Effective Time by (2) the Exchange Ratio, rounded up to the nearest whole cent.
(c) On the Closing Date, Parent shall file a registration statement on Form S-3 or Form S-8, as the case may be (or any successor or other appropriate forms), with respect to the shares of Parent Common Stock subject to the Converted Options and shall use its commercially reasonable best efforts to maintain the effectiveness of such registration statement or registration statements (and maintain the current status of the prospectus or prospectuses contained therein) for so long as such Converted Options remain outstanding.
Treatment of Unallowable Costs Previously Submitted for Payment Mallinckrodt further agrees that within 120 days of the Effective Date of this Agreement it shall identify to applicable Medicare and TRICARE fiscal intermediaries, carriers, and/or contractors, and Medicaid and FEHBP fiscal agents, any Unallowable Costs (as defined in this Paragraph) included in payments previously sought from the United States, or any State Medicaid program, including, but not limited to, payments sought in any cost reports, cost statements, information reports, or payment requests already submitted by Mallinckrodt or any of its subsidiaries or affiliates, and shall request, and agree, that such cost reports, cost statements, information reports, or payment requests, even if already settled, be adjusted to account for the effect of the inclusion of the Unallowable Costs. Mallinckrodt agrees that the United States, at a minimum, shall be entitled to recoup from Mallinckrodt any overpayment plus applicable interest and penalties as a result of the inclusion of such Unallowable Costs on previously-submitted cost reports, information reports, cost statements, or requests for payment. Any payments due after the adjustments have been made shall be paid to the United States pursuant to the direction of the Department of Justice and/or the affected agencies. The United States reserves its rights to disagree with any calculations submitted by Mallinckrodt or any of its subsidiaries or affiliates on the effect of inclusion of Unallowable Costs (as defined in this Paragraph) on Mallinckrodt or any of its subsidiaries or affiliates’ cost reports, cost statements, or information reports.
CERTIFICATION OF NONSEGREGATED FACILITIES (Applicable to construction contracts exceeding $10,000) The Contractor certifies that it does not maintain or provide for its establishments, and that it does not permit employees to perform their services at any location, under its control, where segregated facilities are maintained. It certifies further that it will not maintain or provide for employees any segregated facilities at any of its establishments, and it will not permit employees to perform their services at any location under its control where segregated facilities are maintained. The Contractor agrees that a breach of this certification is a violation of the equal opportunity clause of this contract. As used in this certification, the term “segregated facilities” means any waiting rooms, work areas, rest rooms and wash rooms, restaurants and other eating areas, time clocks, locker rooms, and other storage or dressing areas, parking lots, drinking fountains, recreation or entertainment areas, transportation and housing facilities provided for employees which are segregated by explicit directive or are, in fact, segregated on the basis of race, color, religion, or national origin because of habit, local custom, or any other reason. The Contractor further agrees that (except where it has obtained for specific time periods) it will obtain identical certification from proposed subcontractors prior to the award of subcontracts exceeding $10,000 which are not exempt from the provisions of the equal opportunity clause; that it will retain such certifications in its files; and that it will forward the preceding notice to such proposed subcontractors (except where proposed subcontractors have submitted identical certifications for specific time periods).
TREATMENT OF FRINGE BENEFITS The fringe benefits are charged using the rate(s) listed in the Fringe Benefits Section of this Agreement. The fringe benefits included in the rate(s) are listed below. Vacation, holiday, sick leave pay and other paid absences are included in salaries and wages and are claimed on grants, contracts and other agreements as part of the normal cost for salaries and wages. Separate claims are not made for the cost of these paid absences.
