Additional Company Covenants. The Company hereby agrees:
(a) to replace or repair, at its own expense, any part of the Terminal that is destroyed or damaged through any negligence or willful misconduct of the Company, the Company Designee (acting in such capacity), or any of their agents or employees (acting in such capacity), or any Company Inspector; and
(b) to not make any alteration, additions or improvements to the Terminal or remove any part thereof, without the prior written consent of the Operator, such consent to be at the Operator’s sole discretion.
Additional Company Covenants. For purposes of this section: (a) “Excise Tax” means the excise tax imposed by Section 4999 of the Code, together with any interest or penalties imposed with respect to such excise tax and (b) “Payment” means any payment or distribution in the nature of compensation (within the meaning of Section 280G(b)(2) of the Code) to or for the benefit of Executive, whether paid or payable pursuant to this Agreement or otherwise. The parties hereto agree to work in good faith in order to mitigate the potential impact of the Excise Tax on Executive. In the event that the Company determines (after consulting with an independent accounting or compensation consulting company) that any Payment would subject Executive to the Excise Tax, then the Payments will be reduced to the extent necessary so that no portion thereof is subject to the Excise Tax.
Additional Company Covenants. (1) Without limiting the generality of Section 4.1(1) of the Arrangement Agreement, the Company covenants and agrees that, during the period from the date of this Amendment until the earlier of the Acquisition Effective Time and the date that the Arrangement Agreement is terminated in accordance with its terms, except: (i) as expressly required or permitted by this Amendment; or (ii) as required by applicable Law, the Company shall not, and shall not permit any of the Key Subsidiaries to, directly or indirectly:
(a) issue additional Shares or securities convertible, exchangeable or exercisable for or into Shares, including any Securities or High Street Units, other than:
(i) upon the conversion, exchange or exercise of any Securities or High Street Units that are issued and outstanding as of the date hereof;
(ii) pursuant to contractual commitments existing as of the date hereof, including the SEDA;
(iii) Floating Options to purchase a maximum of 3,700,000 Floating Shares issued pursuant to the Amended Equity Incentive Plan;
(iv) up to US$3,000,000 worth of New Subordinate Shares pursuant to an at-the-market offering that may be completed no more than four times during any one-year period, provided that the total value of New Subordinate Shares issued pursuant to such offerings during any one-year period shall not exceed US$12,000,000;
(v) up to 500,000 New Subordinate Shares in connection with the incurrence of any new Company Debt that is otherwise completed in compliance with the terms of the Arrangement Agreement (other than pursuant to consents and waivers provided by the Purchaser prior to the date hereof); or
(vi) pursuant to one private placement or public offering of Securities during any one-year period for aggregate gross proceeds of up to US$20,000,000, provided that (i) the price per Security (or any exercise or conversion price) shall not be less than 90% of the Market Price; and (ii) the maximum number of compensation Securities issuable to any broker, agent, finder or underwriter in connection therewith shall not exceed 6.0% of the number of Securities issued pursuant to such private placement or public offering; provided that, notwithstanding the foregoing, in no event shall the Company issue Shares or securities convertible, exchangeable or exercisable for or into Shares, including any Securities or High Street Units, in excess of the Purchaser Approved Share Threshold;
(b) reduce the capital of any class or series of the Shares;
(c) nomi...
Additional Company Covenants. (a) Except as otherwise contemplated herein, between the Effective Date and the Closing, none of the Shareholder nor either Company shall (i) materially amend any of the Company Charter Documents; (ii) declare or make, or agree to declare or make, any payment of dividends or distributions of any assets of any kind whatsoever to Shareholder or purchase or redeem, or agree to purchase or redeem, any shares of Celerit Common Stock or Celerit Solutions Common Stock; (iii) make any material change in its method of management, operation or accounting; (iv) enter into any other material transaction other than sales in the ordinary course of its business; or (v) make any increase in or adoption of any profit sharing, bonus, deferred compensation, insurance, pension, retirement, or other employee benefit plan, payment, or arrangement made to, for, or with its officers, directors, or employees.
(b) Between the Effective Date and the Closing, none of the Shareholder nor either Company shall (i) grant or agree to grant any options, warrants or other rights to purchase, subscribe for, or otherwise acquire shares of Celerit Common Stock or Celerit Solutions Common Stock, or other securities convertible into, exchangeable for, or otherwise giving the holder thereof the right to acquire, shares of Celerit Common Stock; (ii) borrow or agree to borrow any funds or incur, or become subject to, any material obligation or liability (absolute or contingent) except as disclosed herein and except liabilities incurred in the Ordinary Course of Business; (iii) sell or transfer, or agree to sell or transfer, any of its assets, properties, or rights or cancel, or agree to cancel, any debts or claims; or (iv) issue, deliver, or agree to issue or deliver any Equity Securities or other securities of the Company, including debentures or other debt obligations, except in connection with this Agreement.
Additional Company Covenants. The Company will use commercially reasonable efforts to seek shareholder approval of the Payments (as herein defined) provided for in this Agreement in a manner intended to satisfy requirements of the “shareholder approval” exception to Section 280G of the Code so as to exempt the Payments from any Excise Tax (as herein defined), but only in the event that Executive first unconditionally waives his right to receive or retain such Payments. For purposes of this Section 20, (a) “Excise Tax” means the excise tax imposed by Section 4999 of the Code, together with any interest or penalties imposed with respect to such excise tax and (b) “Payment” means any payment or distribution in the nature of compensation (within the meaning of Section 280G(b)(2) of the Code) to or for the benefit of Executive, whether paid or payable pursuant to this Agreement or otherwise. The Parties hereto agree to work in good faith in order to mitigate the potential impact of the Excise Tax on Executive, including entering into all acceptable non-competition agreements. Subject to the foregoing provisions of this Section 20, in the event that the Company determines (after consulting with an independent accounting or compensation consulting company) that any Payment would subject Executive to the Excise Tax, then the Payments will be reduced to the extent necessary so that no portion thereof is subject to the Excise Tax.
Additional Company Covenants. 4.1 In connection with the Promissory Notes to be provided pursuant to the terms of this Agreement, the Company agrees, so long as any payment obligation under the Promissory Notes remains outstanding, to comply with the Section 10.10 "Limitation on Other Indebtedness" and Section 10.11 "Limitation on Liens" as set out in that certain Trust Indenture executed by the Company on May 28, 1998 in connection with the Exchange Notes (the "Trust Indenture"). Said Sections 10.10 and 10.11 of the Trust Indenture hereby are incorporated by reference for the limited purpose of this paragraph 4.
4.2 The Company agrees that the obligations under this Agreement and respective Promissory Notes shall hold the same status as more fully set out in Section 14.01 "Seniority of Notes" of the Trust Indenture with respect to the Indebtedness (as defined in the Trust Indenture) and Subordinated Obligations (as defined in the Trust Indenture). Said Section 14.01 and definitions for Indebtedness and Subordinated Obligations of the Trust Indenture hereby are incorporated by reference for the limited purpose of this paragraph 4.
Additional Company Covenants. Prior to the Offer Acceptance Time, the Company shall (and shall cause each of its Subsidiaries to) reasonably cooperate with Parent (at Parent’s sole cost) in order to facilitate the prompt consummation of (a) the Demerger, the Merger and the Merger Squeeze Out or Statutory Squeeze Out, as applicable, and (b) any of the other Transactions contemplated by Section 3.7 that are approved by the Company in writing (which such approval shall not be unreasonably withheld, conditioned or delayed), in each case, following the Offer Acceptance Time. Notwithstanding anything in this MoU to the contrary, any actions taken by the Company or its Subsidiaries in furtherance of this Section 7.4.4 at the request of Parent shall not affect the representations, warranties, covenants or agreements of any of the parties hereto or the conditions to the obligations of any of the parties hereto hereunder and notwithstanding anything to the contrary in this Section 7.4.4, the parties agree that the taking of any such actions will not be taken into account for purposes of determining whether any Offer Condition or condition to the Transactions has been satisfied or whether any right of termination arises under Article IX.
Additional Company Covenants. The Company hereby agrees:
(a) to replace or repair, at its own expense, any part of the Terminal that is destroyed or damaged through any negligence or willful misconduct of the Company, the Company Designee (acting in such capacity), or any of their agents or employees (acting in such capacity), or any Company Inspector;
(b) to not make any alteration, additions or improvements to the Terminal or remove any part thereof, without the prior written consent of the Operator, such consent to be at the Operator's sole discretion; and
(c) to maintain and repair or shall cause to be maintained and repaired the Rail Spur Assets in a safe and operable condition consistent with Prudent Operating Practice.
Additional Company Covenants. (a) The Company shall use good faith commercially reasonable efforts to reincorporate under the laws of the State of Delaware within six (6) months following the date hereof. The Company and the other parties agree to execute such further instruments and to take such further action as may reasonably be necessary to carry out the intent of this Section 4.1, including, without limitation, making such changes to any documents and agreements entered into between the Company and one or more parties to this Agreement that are currently governed by Nevada law in order to provide such parties with substantially the same benefits and rights under such documents and agreements pursuant to Delaware law as may be available under Nevada law upon the reasonable request of an Investor.
(b) Promptly following the Closing (as defined in the Purchase Agreement) the Company shall take down Registration Statement Nos. 333-142460 and 333-145406 to reflect that all registration rights associated with the securities registered on such registration statements have irrevocably been cancelled, expired and no longer in force or effect.
Additional Company Covenants. (a) The Company will use its best efforts to obtain from its officers and directors an agreement that, for a period of time commencing upon the Closing until the earlier to occur of (i) repayment of the amounts due under the Notes and (ii) 30 days from the date the Commission declares the Registration Statement effective, they will not transfer or sell any of the Company’s securities to any party, other than to a spouse, child, grandchild, parent, brother or sister, to a trust established for the benefit of the same, or to the estate of any of the same by gift, will or intestate succession, or pursuant to the terms of previously granted employee stock options and previously granted outstanding warrants, options, and convertible securities.
(b) At the Closing the Company shall file with the United States Patent and Trademark Office a short-form security agreement evidencing the security interest of the Subscribers and the existing noteholders in the Company’s intellectual property as set forth in the Security Agreement
