Page 13 of 23 – SEC Filing
4.
Agreement to Take Certain Action. TNK agrees to take the actions set forth on Schedule B. For avoidance
of doubt, any failure (a) by TNK to complete the actions set forth in Schedule B or (b) by Huber of its obligations under this
Agreement will be regarded as a material breach of this Agreement, and all parties agree that such failure shall, as applicable,
relieve Huber of any of Huber’s obligations hereunder or TNK of any of its obligations hereunder. The parties further agree
that the occurrence of the Expiration Time shall have no effect on TNK’s obligation to take the actions set forth in Schedule
B (except as set forth therein). Notwithstanding the foregoing, TNK will have no obligation to take or maintain any of the actions
set forth on Schedule B if Huber’s obligations under this Agreement are terminated due to a material modification,
waiver, or amendment of the Merger Agreement that materially and adversely affects the consideration payable to shareholders of
TIL pursuant to the Merger Agreement.
5.
No Legal Action. Huber shall not, and shall direct its Representatives not to, bring, commence, institute,
maintain, voluntarily aid or prosecute any claim, appeal, or proceeding that (a) challenges the validity of or seeks to enjoin
the operation of any provision of this Agreement or (b) alleges that the execution and delivery of this Agreement by Huber (or
its performance hereunder) breaches any fiduciary duty of the TNK Board (or any member thereof) or the TIL Board (or any member
thereof).
6.
Notice of Certain Events. Huber shall notify TNK in writing promptly of (a) any fact, event or circumstance
that would constitute a breach of the representations and warranties of Huber under this Agreement or (b) the receipt by Huber
of any notice or other communication from any Person alleging that the consent of such Person is or may be required in connection
with this Agreement.
7.
Non-Disparagement. From the date hereof through the earlier of the Expiration Time (where “Expiration
Time” is modified to exclude clause (a) from the definition thereof) or February 28, 2018, Huber shall not make, and shall
cause its respective affiliates and its and their respective principals, directors, shareholders, members, general partners, officers
and employees not to make, any public statements or announcements that disparage or criticize (or that might reasonably be construed
to be derogatory or critical of, or negative toward) TNK, TIL, their respective businesses or any current or former directors,
officers or employees of TNK or TIL; provided, however, that this provision shall not restrict the ability of any
person to (i) comply with any subpoena or other legal process or respond to a request for information from any governmental authority
with jurisdiction over the party from whom information is sought or (ii) make private statements to directors of the TNK Board
or the TIL Board or employees of TNK or TIL in a manner in which public dissemination of such statements would not be reasonably
anticipated.
8.
Representations and Warranties of Huber. Each of HCM and Mr. Huber hereby represents and warrants that:
8.1
Due Authority. Each of HCM and Mr. Huber has the full power and capacity to make, enter into and carry out
the terms of this Agreement. HCM is duly organized, validly existing and in good standing in accordance with the laws of its jurisdiction
of formation. The execution and delivery of this Agreement, the performance of Huber’s obligations hereunder and the consummation
of the transactions contemplated hereby have been validly authorized, and no other consents or authorizations are required to give
effect to this Agreement or the transactions contemplated by this Agreement. This Agreement has been duly and validly executed
and delivered by each of HCM and Mr. Huber and constitutes a valid and binding obligation of each of HCM and Mr. Huber enforceable
against it (or him) in accordance with its terms, except as enforcement may be limited by general principles of equity whether
applied in a court of law or a court of equity and by bankruptcy, insolvency and similar Laws affecting creditors’ rights
and remedies generally.
