Ex-Tunc Agreement

EX-TUNC AGREEMENT

This Ex-Tunc Agreement (the "Agreement") is made as of Day: Month: Year: by and between Party A Name: whose principal place of business or residence is at , represented by , Title: ; and Party B Name: whose principal place of business or residence is at , represented by , Title: .

RECITALS

WHEREAS, Party A and Party B have engaged in certain transactions, communications, or other actions described in Schedule A below and seek a mutual determination that such Covered Acts are to be recognized retroactively;

WHEREAS, the Parties desire to confirm, ratify and declare that the Covered Acts shall be deemed effective as of the Ex-Tunc Date specified below and to allocate rights, obligations and remedies arising therefrom;

WHEREAS, the Parties represent that they have authority to enter into this Agreement and that such retroactive recognition is necessary to resolve uncertainties and to reflect the Parties' intentions.

NOW THEREFORE, in consideration of the mutual covenants and agreements set forth herein and other good and valuable consideration, receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. DEFINITIONS

1.1 "Ex-Tunc Date" means the date to which the Parties intend retroactive effect to apply: Day: Month: Year: .

1.2 "Covered Acts" means the transactions, agreements, communications and other acts described in Schedule A and any acts expressly identified in writing by the Parties as being subject to this Agreement.

2. RETROACTIVE EFFECT

2.1 Subject to the terms of this Agreement, the Parties agree that the Covered Acts shall be and hereby are declared effective ex tunc as of the Ex-Tunc Date. For all purposes of legal rights, obligations, titles, charges, records and liabilities, the Covered Acts shall be deemed to have occurred on and from the Ex-Tunc Date, and the Parties shall treat all such acts as if they had been validly undertaken on that date.

2.2 Nothing in this Agreement shall be construed to create obligations or liabilities beyond those that reasonably flow from recognizing the Covered Acts as effective as of the Ex-Tunc Date, except as expressly provided herein.

3. RATIFICATION; EFFECT ON RECORDS

3.1 Each Party hereby ratifies, confirms and adopts all acts taken by such Party that constitute Covered Acts and agrees to take all further actions reasonably necessary to give full force and effect to the retroactive recognition set forth in this Agreement.

3.2 The Parties shall cooperate in executing any instruments, filings, amendments to records, or other documents required to reflect the Ex-Tunc effect in official records, registers or ledgers. Each Party shall bear its own costs in effecting such record corrections unless otherwise agreed in writing.

4. CONSIDERATION

4.1 The Parties acknowledge that the mutual promises and covenants contained in this Agreement constitute adequate consideration. If monetary consideration is provided, describe below.

5. REPRESENTATIONS AND WARRANTIES

5.1 Each Party represents and warrants to the other that: (a) it has full power and authority to enter into this Agreement and to perform its obligations hereunder; (b) the execution, delivery and performance of this Agreement have been duly authorized by all necessary corporate, partnership or individual action; and (c) when executed and delivered, this Agreement will constitute a valid and binding obligation enforceable against such Party in accordance with its terms.

5.2 Each Party further represents that to the best of its knowledge no consent, approval or authorization of, or filing with, any governmental authority or third party is required to give effect to the retroactive recognition of the Covered Acts other than those already obtained or specifically identified in writing.

6. RELEASE AND INDEMNITY

6.1 To the fullest extent permitted by law, each Party releases and discharges the other Party from any and all claims, liabilities or causes of action that arise solely from a dispute over the legal effect of the Covered Acts prior to the Ex-Tunc Date, provided that this release does not apply to claims arising from willful misconduct or fraud.

6.2 Each Party shall indemnify, defend and hold the other harmless from and against any losses, damages, costs or expenses (including reasonable attorneys' fees) arising out of any third-party challenge to the Ex-Tunc recognition to the extent caused by the indemnifying Party's breach of a representation or warranty in this Agreement.

7. THIRD PARTIES; ASSIGNMENT

7.1 This Agreement is binding upon and inures to the benefit of the Parties and their respective successors and permitted assigns. Neither Party shall assign its rights or obligations hereunder without the prior written consent of the other Party.

7.2 Except as expressly provided herein, nothing in this Agreement is intended to confer any third-party beneficiary rights upon any person or entity not a Party hereto.

8. NOTICES

All notices, demands or other communications required or permitted under this Agreement shall be in writing and delivered to the Parties at the addresses set forth below (or at such other address as a Party may designate by written notice). Notices shall be deemed given upon delivery if delivered by hand or by a nationally recognized overnight courier, or three days after deposit in the United States mail, postage prepaid, certified or registered.

9. AMENDMENTS; WAIVER

9.1 No amendment, modification or waiver of any provision of this Agreement shall be effective unless set forth in a writing signed by both Parties. No waiver of any breach shall be deemed a waiver of any subsequent breach.

10. GOVERNING LAW

This Agreement shall be governed by and construed in accordance with the laws of the State of without regard to its conflicts of law principles.

11. ENTIRE AGREEMENT

This Agreement, together with Schedule A and any documents expressly incorporated herein, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings and negotiations, whether oral or written, relating thereto.

12. SEVERABILITY

If any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

13. COUNTERPARTS; EXECUTION

This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Facsimile, electronic or scanned signatures shall be treated as original signatures for all purposes.

SCHEDULE A — COVERED ACTS

Sign Now