COVENANTS, AGREEMENTS AND ACKNOWLEDGEMENTS. 3.1. ENDURANCE covenants and agrees with TECTON that ENDURANCE shall:
(a) from and including the Effective Date through to and including the Time of Closing, permit TECTON, through its directors, officers, employees and authorized agents and representatives, at TECTON’s own cost, full access to the books, records and property of ENDURANCE including, without limitation, all of the assets, contracts, correspondence, accounts and minute books of ENDURANCE, so as to permit TECTON to make such investigation (“TECTON’s Investigation”) of ENDURANCE as TECTON considers advisable; and
(b) provide to TECTON all such further documents, instruments and materials and do all such acts and things as may be required by TECTON to obtain any regulatory approvals that may be required under applicable laws; and
(c) from and including the Effective Date through to and including the Time of Closing, do all such acts and things that may be necessary to ensure that all of the representations and warranties of ENDURANCE contained in this Agreement or any certificates or documents delivered by any of them pursuant to this Agreement remain true and correct; and
(d) from and including the Effective Date through to and including the Time of Closing, preserve and protect all of the goodwill, assets, business and undertaking of ENDURANCE and, without limiting the generality of the foregoing, carry on the development of the assets of ENDURANCE in a reasonable and prudent manner; and
(e) from and including the Effective Date through to and including the Time of Closing, keep confidential all discussions and communications (including all information communicated therein) between the PARTIES, and all written and printed materials of any kind whatsoever exchanged by the PARTIES, except only any information or material that:
(i) was in the public domain at the time of disclosure to a party (the “Recipient”); or
(ii) was already in the possession of the Recipient prior to disclosure, as demonstrated by the Recipient through tangible evidence; or
(iii) subsequently enters the public domain through no fault of the Recipient or any officer, director, employee or agent of the Recipient; or
(iv) is required to be disclosed by law or by a court or regulatory authority of competent jurisdiction; and, if so requested by TECTON, ENDURANCE shall arrange for any member, employee, authorized agent or representative of ENDURANCE to enter into a non-disclosure agreement with TECTON in a form acceptable to T...
COVENANTS, AGREEMENTS AND ACKNOWLEDGEMENTS. 3.1 The Purchaser covenants and agrees with the Company to:
(a) concurrent with the execution of this Agreement, if the Purchaser is an individual (which means a natural person, but does not include a partnership, unincorporated association, unincorporated syndicate, unincorporated organization or trust, or a natural person in his capacity as a trustee, executor, administrator or personal or other legal representative), fully complete and execute the Form 20A scheduled to this Agreement; and
(b) hold and not sell, transfer or in any manner dispose of the Shares unless the sale, transfer or disposition is made in accordance with all applicable Securities Rules.
3.2 The Purchaser acknowledges and agrees that the Shares will be subject to such trade restrictions as may be imposed by operation of the applicable Securities Rules, and the share certificate or certificates representing the Shares will bear such legends as may be required by the applicable Securities Rules. The Purchaser further acknowledges and agrees that it is the Purchaser's obligation to comply with the trade restrictions in all of the applicable jurisdictions and the Company offers no advice as to those trade restrictions.
3.3 The Purchaser acknowledges that:
(a) the Securities have not been registered under the U.S. Securities Act and are "restricted securities" within the meaning of Rule 144 under the U.S. Securities Act and may only be resold in accordance with the provisions of Regulation S under the U.S. Securities Act, pursuant to registration under the U.S. Securities Act, or pursuant to an available exemption from such registration. The Purchaser understands that the Company has no obligation or present intention of filing a registration statement under the U.S. Securities Act in respect of the Securities;
(b) hedging transactions involving the Securities may not be conducted unless in compliance with the U.S. Securities Act;
(c) there may be material tax consequences to the Purchaser of an acquisition or disposition of Securities. The Company gives no opinion and makes no representation with respect to the tax consequences to the Purchaser under United States, state, local or foreign tax law of the Purchaser's acquisition or disposition of such securities;
(d) the certificates evidencing the Securities issued in this subscription will bear a legend in substantially the following form: "THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT O...
COVENANTS, AGREEMENTS AND ACKNOWLEDGEMENTS. 3.1 Equicap covenants and agrees with Zecotek that it shall:
(a) from and including the Effective Date through to and including the Time of Closing, permit Zecotek, itself and through its directors, officers, employees and authorized C:\Documents and Settings\Xxxxxxx Xxxxx\Local Settings\Temporary Internet Files\OLK23\6482 AGMT Amended and Restated Asset Purchase.doc agents and representatives (collectively "Zecotek's Representatives"), at its own cost, full access to Equicap's property, books and records including, without limitation, all of the assets, contracts and minute books of Equicap, so as to permit Zecotek's Representatives to make such investigation (the "Zecotek Investigation") of Equicap as it deems necessary;
(b) use its best efforts to obtain Regulatory Approval for this Agreement and the transactions contemplated hereunder on or before the 30th day of November 2004;
(c) from and including the Effective Date through to and including the Time of Closing, do all such acts and things necessary to ensure that all of the representations and warranties of Equicap and Photonics remain true and correct and not do any such act or thing that would render any representation or warranty of Equicap or Photonics untrue or incorrect;
(d) from and including the Effective Date through to and including the Time of Closing, preserve and protect the listing of Equicap; and
(e) except as may be required by a stock exchange or other trading facility or by any rule, regulation or law of any kind whatsoever which is applicable to it, while this Agreement is in effect and for a period of one year thereafter, keep confidential all discussions and communications between the parties including, without limitation, all information communicated therein and all written and printed materials of any kind whatsoever exchanged between them and, if requested by Zecotek to do so, Equicap shall arrange for Photonics or its directors, officers, employees, authorized agents and representatives that are or that may become aware of the relationship between the parties created by this Agreement to provide to Zecotek a letter confirming their agreement to be personally bound by these non-disclosure provisions.
3.2 Each of Equicap and Photonics acknowledges to and agrees with Zecotek that the Zecotek Investigation shall in no way limit or otherwise adversely affect the rights of the Zecotek as provided for hereunder in respect of the representations and warranties of Equicap and Photoni...
COVENANTS, AGREEMENTS AND ACKNOWLEDGEMENTS. 8.1 The Lender acknowledges that he has been advised to consult his own legal advisors with respect to applicable resale restrictions and that he is solely responsible for complying with such restrictions (and the Company is not in any manner responsible for ensuring compliance by the Lender with such restrictions).
8.2 The Lender acknowledges that no securities commission has evaluated or endorsed the merits of these securities and that the person selling these securities has no duty to tell the Lender whether these securities are a suitable investment. The Lender further acknowledges that it is investing in the Company entirely at its own risk and it may lose all of the Loan Funds.
8.3 The Lender acknowledges and agrees that the Company may, acting unilaterally, increase or decrease the size of the Offering without the consent of or notice to the Lender.
8.4 Concurrent with the execution of this Agreement, the Lender will fully complete Schedule F to this Agreement and acknowledges that the Company is relying on the Exemptions in order to complete the trade and distribution of the Notes and the Lender is aware of the criteria of the Exemptions to be met by the Lender including the representations in Schedule B.
COVENANTS, AGREEMENTS AND ACKNOWLEDGEMENTS. 3.1 Subparagraph 3.4 of the Agreement is hereby amended by adding the following:
COVENANTS, AGREEMENTS AND ACKNOWLEDGEMENTS. 3.1 Dx. Xxxxxx covenants and agrees with Cybele that he shall:
(a) provide to Cybele and its advisors, reasonable access to the Assets, accounting records, legal records and other business records related to the revenue attributed to the Assets;
(b) from and including the Effective Date through to and including the Time of Closing, do all such acts and things necessary to ensure that all of the representations and warranties of Dx. Xxxxxx remain true and correct, and not do any such act or thing that would render any representation or warranty of Dx. Xxxxxx untrue or incorrect;
(c) from and including the Effective Date through to and including the Time of Closing, preserve and protect the Assets and, without limiting the generality of the foregoing, preserve and protect the Assets in a reasonable and prudent manner; and
(d) not negotiate with any other person in respect of a purchase and sale of any part of the Assets.
3.2 Cybele covenants and agrees with Dx. Xxxxxx that it shall use reasonable commercial efforts to raise US$400,000 by December 7, 2005 failing which Dx. Xxxxxx has the option to demand in writing by December 31, 2005 that the Assets be returned to him in exchange for the return of the NSR. The parties acknowledge that Cybele intends to raise an additional US$1,000,000, but there are no assurances that such funds will be obtained on terms acceptable to Cybele. If, for any reason the Board of Directors of Cybele determine that it is in the best interest of the Company to delay or curtail any additional funding beyond the US$400,000, Cybele, in good faith, will discuss alternate business or funding arrangements with Dx. Xxxxxx in order that Cybele can continue reasonable operations.
COVENANTS, AGREEMENTS AND ACKNOWLEDGEMENTS. 3.1 ZMS covenants and agrees with Zecotek that it shall:
(a) from and including the Effective Date through to and including the Time of Closing, permit Zecotek, itself and through its directors, officers, employees and authorized agents and representatives (collectively "Zecotek's Representatives"), at its own cost, full access to ZMS’s property, books and records including, without limitation, all of the assets, contracts and minute books of ZMS, so as to permit Zecotek's Representatives to make such investigation (the "Zecotek Investigation") of ZMS as it deems necessary;
(b) use its best efforts to obtain Regulatory Approval for this Agreement and the transactions contemplated hereunder on or before February 28, 2006, with conditional Regulatory Approval obtained on or before December 31, 2005;
(c) use reasonable commercial efforts to have the TSXV not classify the transactions contemplated herein as a “Change of Business” or “Fundamental Acquisition” under the TSXV policies (Zecotek will assist ZMS in providing the necessary information and documentation to the TSXV in that regard). The parties acknowledge that the determination of this issue will be made by the TSXV in its sole discretion;
(d) use reasonable commercial efforts to have the TSXV and the British Columbia Securities Commission not require audited financial statements of any entity other than Zecotek;
(e) use reasonable commercial efforts to have the TSXV impose the least restrictive escrow, pooling and any other similar restrictions, if any, on the ZMS Shares as defined below;
(f) use reasonable commercial efforts to increase the number of options issuable under its stock option plan to 5,200,000, subject to shareholder and Regulatory Approval;
(g) use reasonable commercial efforts to issue the maximum number of options at the then market price to employees, consultants, directors and officers of ZMS and its Subsidiaries, as may be specified by Zecotek, subject to Regulatory Approval;
(h) use reasonable commercial efforts to change its name to “Zecotek Biophotonics Inc.” or such other name as approved by the shareholders and directors of ZMS, subject to Regulatory Approval;
(i) from and including the Effective Date through to and including the Time of Closing, do all such acts and things necessary to ensure that all of the representations and warranties of the Purchasers remain true and correct and not do any such act or thing that would render any representation or warranty of the Purcha...
COVENANTS, AGREEMENTS AND ACKNOWLEDGEMENTS. 5.1 During the Interim Period, neither Mirko nor Canam shall take any action, directly or indirectly, to encourage, initiate or engage in discussions or negotiations with, or provide any information to, any Person, other than Vizsla and its designated and authorized representatives, concerning any sale, transfer or assignment of the Canam Shares, any portion of the Business or the Assets. Mirko and Canam shall notify Vizsla promptly if any such discussions or negotiations are sought or if any proposal for a sale, transfer or assignment of the Canam Shares, any portion of the Business or the Assets is received or being considered.
5.2 During the Interim Period, as Vizsla has already conducted extensive due diligence in respect of Canam, the Option Agreements and the Assets, Vizsla and its authorized representatives shall be permitted to conduct confirmatory due diligence in respect of the same and Canam and Mirko shall facilitate Vizsla's conduct of such confirmatory due diligence.
5.3 Without in any way limiting any other obligations of Canam hereunder, during the Interim Period:
(a) Canam shall conduct the Business and the operations and affairs of Canam only in the ordinary course, and Canam shall not, without the prior written consent of Vizsla, enter into any transaction or refrain from doing any action that, if effected before the date of this Agreement, would constitute a breach of any representation, warranty, covenant or other obligation of Canam in this Agreement and, without limiting the generality of the foregoing, Canam shall:
(i) not amalgamate, merge or consolidate with or acquire or agree to acquire all or substantially all of the shares and assets of any Person, not acquire or lease or agree to acquire or lease any business operations or any equity interests in any other Person, not acquire or agree to acquire any legal or beneficial interest in any real property or not to occupy, lease, manage or control or agree to occupy, lease or manage or control any facility or property;
(ii) not enter into any compromise or settlement of any litigation, proceeding or government investigation relating to the Business or any of the Assets;
(iii) not enter into any Material Contract;
(iv) not move any material part of the Business to any other location from which Canam does not carry on the Business at the date hereof; and
(v) not make any change to its governing documents;
(b) Canam shall:
(i) continue to maintain in full force and effect all the insur...
COVENANTS, AGREEMENTS AND ACKNOWLEDGEMENTS. 3.1 Subparagraph 3.4(e) of the Agreement is hereby amended to provide that prior to the Closing Date, the Acquiror will use its reasonable best efforts to undertake a financing (the "Financing") to raise US$3,000,000 for working capital purposes.
COVENANTS, AGREEMENTS AND ACKNOWLEDGEMENTS. 6.1. Conduct of Business by the Group Companies Prior to the Closing.
(a) Each member of Management, jointly and severally, covenants to the Purchaser that, between the date of this Agreement and the Closing, except as required by applicable Law or as expressly provided in this Agreement, unless upon the written direction, instruction or consent of the Purchaser, the Management shall cause (i) the businesses of the Group Companies to be conducted only in, and shall prohibit the Group Companies from taking any action except in, a lawfully permitted manner in the ordinary course of business and in a manner consistent with past practice; and (ii) the Group Companies to use their reasonable best efforts to preserve substantially intact the business organization of the Group Companies, to keep available the services of the Key Officers, the other executive officers, key employees, and consultants of the Group Companies and to preserve the current relationships of each of the Group Companies with key customers, key suppliers and other persons with which such Group Companies has material relations.
(b) By way of amplification and not limitation, except as required by applicable Law or as expressly provided in this Agreement, the Management shall not, between the date of this Agreement and the Closing, directly or indirectly, take or permit to occur or approve or authorize, and the Management shall cause the Group Companies to not take or permit to occur or approve or authorize, any of the items described in Section 3.13(b)(i) to 3.13(b)(xx) (inclusive), whether in a single transaction or a series of related transactions, and whether directly or indirectly, or by amendment, merger, consolidation, or otherwise, without the prior written approval of the Purchaser.
