Common use of Covenants of Acquirer Clause in Contracts

Covenants of Acquirer. During the period from the date of --------------------- this Agreement and continuing until the earlier of the termination of this Agreement or the Effective Time, Acquirer agrees as to itself and its Subsidiaries, except to the extent that Target shall otherwise consent in writing (which consent will not be unreasonably withheld or delayed), to carry on its business in the usual, regular and ordinary course in substantially the same manner as previously conducted, to pay its debts and taxes when due subject to good faith disputes over such debts or taxes, to pay or perform its other obligations when due, and, to the extent consistent with such business, use all reasonable efforts consistent with past practices and policies to (i) preserve intact its present business organization, (ii) keep available the services of its present officers and key employees and (iii) preserve its relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with it. Acquirer shall promptly notify Target of any event or occurrence not in the ordinary course of business of Acquirer of which Acquirer has knowledge where such event or occurrence would result in a breach of any covenant of Acquirer set forth in this Agreement or cause any representation or warranty of Acquirer to be inaccurate in any material respect as of the date made or (except in the case of representations and warranties that speak as of a specific date) as of the Effective Time. Except as expressly contemplated by this Agreement, Acquirer shall not (and shall not permit any of its Subsidiaries to), without the prior written consent of Target (which consent shall not be unreasonably withheld or delayed): (a) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect of any of its capital stock, or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock; (b) Purchase, redeem or otherwise acquire, directly or indirectly, any shares of its capital stock except from former employees, directors and consultants in accordance with agreements providing for the repurchase of shares in connection with any termination of service by such party; (c) Issue, deliver or sell to any of its directors, officers, employees or consultants any shares of its capital stock or securities convertible into shares of its capital stock, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue any such shares or convertible securities, other than the issuance, delivery and/or sale of (i) rights to purchase shares of Acquirer Common Stock under the Acquirer Purchase Plan, (ii) options to purchase shares of Acquirer Common Stock granted under the Acquirer Option Plans in the ordinary course of business consistent with Acquirer's past policies or (iii) shares of Acquirer Common Stock issuable upon the exercise of options granted under the Acquirer Option Plans or pursuant to rights under the Acquirer Purchase Plan; (d) Issue, deliver or sell or authorize or propose the issuance, delivery or sale of, any shares of its capital stock or securities convertible into shares of its capital stock, or subscriptions, rights, warrants or options to acquire any such shares or convertible securities (i) by means of any public offering registered under the Securities Act (other than an offering registered pursuant to a registration statement on Form S-8) or (ii) in any transaction exempt from such registration where the gross proceeds from such transaction are reasonably expected to exceed $50,000,000 (other than Acquirer Series B Preferred Stock and warrants issuable pursuant to the Acquirer Series B Agreements, the securities of Acquirer issuable upon conversion of Acquirer Series B Preferred Stock or upon the exercise of warrants issuable pursuant to the Acquirer Series B Agreements), in any such case unless Acquirer has advised Target in advance of its intention to effect such offering or enter into such transaction and, if Target so requests, consulted with Target regarding the advisability of such proposed offering or transaction; (e) Acquire or agree to acquire by merging or consolidating with, or by purchasing an equity interest in or a substantial portion of the assets of, or by any other manner, any business or any corporation or other business organization or division where the consideration to be paid by Acquirer therefor consists of voting securities, cash and/or other assets having an aggregate value (as determined in good faith by the Board of Directors of Acquirer at the time such acquisition is approved by such Board) of more than $125,000,000 unless Acquirer has advised Target in advance of its intention to effect such acquisition and, if Target so requests, consulted with Target regarding the advisability of such proposed acquisition; (f) Sell, lease, license or otherwise dispose of (by merger, consolidation, sale of assets or otherwise) any of its properties or assets which are material, individually or in the aggregate, to the business of Acquirer and its Subsidiaries, taken as a whole, except for licenses and sales in the ordinary course of business; (g) Amend or propose to amend its Certificate of Incorporation or Bylaws, except as contemplated by this Agreement; (h) Agree in writing or otherwise to take any of the actions described in Sections (a) through (g) above; or (i) Take any other action which is reasonably likely to make any of Acquirer's representations or warranties contained in this Agreement inaccurate in any material respect as of the date made or (except in the case of representations or warranties that speak specifically as of the date hereof or as of another specific date) as of the Effective Time.

Covenants of Acquirer. During Acquirer hereby covenants and agrees with Target as follows: (a) Acquirer shall furnish promptly to Target a copy of any filing under any Applicable Laws and any dealings or communications with any Governmental Entity (including any Securities Authority) in connection with, or in any way affecting, the transactions contemplated by this Agreement. (b) Acquirer covenants and agrees that, during the period from the date of --------------------- this Agreement and continuing until the earlier of the termination of Effective Time and the time that this Agreement or the Effective Time, Acquirer agrees as to itself and is terminated in accordance with its Subsidiaries, except to the extent that Target shall otherwise consent in writing (which consent will not be unreasonably withheld or delayed), to carry on its business in the usual, regular and ordinary course in substantially the same manner as previously conducted, to pay its debts and taxes when due subject to good faith disputes over such debts or taxes, to pay or perform its other obligations when due, and, to the extent consistent with such business, use all reasonable efforts consistent with past practices and policies to terms, (i) except: (A) with the prior written consent of Target; (B) as required or permitted by this Agreement; or (C) as required by Applicable Law; Acquirer shall use commercially reasonable efforts to maintain and preserve intact its present and the Acquirer Subsidiaries’ business organization, assets, properties (ii) keep available including, for greater certainty, the services of its present officers Acquirer Properties), employees, goodwill and key employees and (iii) preserve its business relationships with customers, suppliers, distributorspartners and other Persons with which Acquirer or any Acquirer Subsidiary has business relations and to perform and comply with all of its obligations under Material Contracts; and (ii) without limiting the generality of Section 4.2(b)(i) except in the situations or circumstances contemplated by Section 4.2(b)(i)(A) to 4.2(b)(i)(C), licensors, licensees, and others having business dealings with it. Acquirer shall not: (A) amend its MAA, by-laws or similar organizational documents; (B) split, divide, combine, reclassify, designate, convert or amend the terms of any shares or securities of Acquirer; (C) redeem, forfeit, repurchase, or otherwise acquire or offer to redeem, repurchase or otherwise acquire any shares or securities of Acquirer; (D) reorganize, consolidate, amalgamate or merge Acquirer or any Acquirer Subsidiary; (E) declare, set aside or pay any dividend or other distribution or payment in cash, securities or property with respect to any class of securities (except transactions in the Ordinary Course between two or more wholly-owned Subsidiaries of Acquirer or between Acquirer and one or more of its wholly-owned Subsidiaries); (F) enter into any Contract or take any other action which under any Applicable Law requires the approval of minority Acquirer Shareholders, unless such approval is to be sought at a meeting of Acquirer Shareholders in respect of which the record date will be such that the Acquirer Shares comprised in the Share Consideration will be Acquirer Shares which can be voted at such meeting; or (G) authorize, agree, resolve or otherwise commit, whether or not in writing, to do any of the foregoing. (c) Acquirer shall: (i) not take any action, or refrain from taking any action or permit any action to be taken or not taken (subject to a commercially reasonable efforts qualification), inconsistent with the provisions of this Agreement or that would reasonably be expected to materially impede the completion of the transactions contemplated hereby or would render, or that could reasonably be expected to render, any representation or warranty made by Acquirer in this Agreement untrue or inaccurate in any material respect at any time on or before the Effective Date if then made or that would or could have a Material Adverse Effect on Acquirer; and (ii) promptly notify Target of: (A) any Material Adverse Change or Material Adverse Effect, or any change, event, occurrence or state of any event facts that could reasonably be expected to become a Material Adverse Change or occurrence not to have a Material Adverse Effect, in respect of the business or in the ordinary course conduct of the business of Acquirer; (B) any material Governmental Entity or third-person complaints, investigations or hearings (or communications indicating that the same may be contemplated); (C) any breach by Acquirer of which Acquirer has knowledge where such event or occurrence would result in a breach of any covenant of Acquirer set forth or agreement contained in this Agreement or cause Agreement; and (D) any event occurring subsequent to the date hereof that would render any representation or warranty of Acquirer to be inaccurate contained in any material respect this Agreement, if made on or as of the date made of such event or the Effective Date, to be untrue or inaccurate. (except in the case of representations and warranties that speak as of a specific dated) as Acquirer shall use all commercially reasonable efforts to satisfy, or cause to be satisfied, all of the Effective Time. Except as expressly conditions set out in Sections 6.1 and 6.2 to the extent the same is within its control and to take, or cause to be taken, all other actions and to do, or cause to be done, all other things necessary, proper or advisable under all Applicable Laws to complete the transactions contemplated by this Agreement, including using its commercially reasonable efforts to: (i) oppose, lift or rescind any injunction or restraining order or other order or action challenging or affecting this Agreement, the transactions contemplated hereby or seeking to enjoin or delay, or otherwise adversely affecting the ability of the Parties to consummate, the transactions contemplated hereby; and (ii) cooperate with Target in connection with the performance by Target of its obligations hereunder. (e) At the closing of the transactions contemplated hereby, Acquirer shall not (execute and shall not permit any of its Subsidiaries to)deliver, without the prior written consent of Target (which consent shall not or cause to be unreasonably withheld or delayed):executed and delivered, such customary agreements, certificates, opinions, resolutions and other closing documents as may be reasonably requested by Target, all in form satisfactory to Target, acting reasonably. (af) DeclareAcquirer will, set aside in accordance with the terms and conditions hereof and Applicable Law, at the Effective Time issue the Share Consideration to Target Shareholders pursuant to the Merger, such Acquirer Shares to be “freely tradeable”, subject only to “control person” restrictions under securities Applicable Laws in Canada; provided that, if Acquirer, acting in its sole discretion, determines that any state or pay any dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect of any of its capital stock, or reclassify any of its capital stock or issue or authorize jurisdiction within the United States does not exempt the issuance of any other securities Share Consideration from such jurisdiction’s registration or qualification requirements, Acquirer may, acting in respect ofits sole discretion, determine that holders of Target Shares resident in such jurisdiction will receive an equivalent value of cash consideration in lieu of or in substitution for shares of its capital stock;the Share Consideration. (bg) PurchaseIn respect of Target Options that are outstanding as of the date hereof, redeem or otherwise acquireAcquirer will, directly or indirectlyat the Effective Time, any shares issue Acquirer Options to the Target Optionholders in exchange for such Target Options, which will be cancelled, on the basis of its capital stock except from former employees0.053 of an Acquirer Option for each Target Option. In each case, directors and consultants in accordance with agreements providing for the repurchase exercise price of shares in connection with any termination of service by such party; (c) Issue, deliver or sell to any of its directors, officers, employees or consultants any shares of its capital stock or securities convertible into shares of its capital stock, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue any such shares or convertible securities, other than the issuance, delivery and/or sale of (i) rights to purchase shares of Acquirer Common Stock under the Acquirer Purchase PlanOptions so issued shall be the exercise price of the Target Options for which they are exchanged after dividing such exercise price by 0.053. For greater certainty, such Acquirer Options (ii) options to purchase shares of Acquirer Common Stock granted whether or not issued under the Acquirer Option Plans Plan) will expire on the expiry date set out in the ordinary course corresponding Target Option and will not be subject to section 2.5 of business consistent with Acquirer's past policies or (iii) shares of Acquirer Common Stock issuable upon the exercise of options granted under the Acquirer Option Plans or pursuant to rights under the Acquirer Purchase Plan; (d) Issue, deliver or sell or authorize or propose the issuance, delivery or sale of, any shares of its capital stock or securities convertible into shares of its capital stock, or subscriptions, rights, warrants or options to acquire any such shares or convertible securities (i) by means of any public offering registered under the Securities Act (other than an offering registered pursuant to a registration statement on Form S-8) or (ii) in any transaction exempt from such registration where the gross proceeds from such transaction are reasonably expected to exceed $50,000,000 (other than Acquirer Series B Preferred Stock and warrants issuable pursuant to the Acquirer Series B Agreements, the securities of Acquirer issuable upon conversion of Acquirer Series B Preferred Stock or upon the exercise of warrants issuable pursuant to the Acquirer Series B Agreements), in any such case unless Acquirer has advised Target in advance of its intention to effect such offering or enter into such transaction and, if Target so requests, consulted with Target regarding the advisability of such proposed offering or transaction; (e) Acquire or agree to acquire by merging or consolidating with, or by purchasing an equity interest in or a substantial portion of the assets of, or by any other manner, any business Plan or any corporation or other business organization or division where the consideration to be paid by Acquirer therefor consists of voting securities, cash and/or other assets having an aggregate value (as determined in good faith by the Board of Directors of Acquirer at the time such acquisition is approved by such Board) of more than $125,000,000 unless Acquirer has advised Target in advance of its intention to effect such acquisition and, if Target so requests, consulted with Target regarding the advisability of such proposed acquisition; (f) Sell, lease, license or otherwise dispose of (by merger, consolidation, sale of assets or otherwise) any of its properties or assets which are material, individually or in the aggregate, to the business of Acquirer and its Subsidiaries, taken as a whole, except for licenses and sales in the ordinary course of business; (g) Amend or propose to amend its Certificate of Incorporation or Bylaws, except as contemplated by this Agreement;analogous provision. (h) Agree in writing or otherwise Acquirer will issue, at the Effective Time, an aggregate of 314,186 Acquirer Shares to take any the holders of the actions described in Sections (a) through (g) above; or (i) Take any other action which is reasonably likely to make any of Acquirer's representations or warranties contained in this Agreement inaccurate in any material respect as of the date made or (except in the case of representations or warranties that speak specifically Target DSUs outstanding as of the date hereof or as in exchange for their Target DSUs, which will be cancelled, and will further pay an aggregate of another specific date) as $60,213 in lieu of the Effective Timeadditional Target DSUs that would have been issued but for black-out restrictions. (i) Acquirer shall use its commercially reasonable efforts to ensure that the Acquirer Shares are continuously listed and posted for trading on the TSX.

Covenants of Acquirer. During the period from the date of --------------------- this Agreement and continuing until the earlier In connection with Acquirer’s inspection of the termination of this Agreement or the Effective TimeProperty, Acquirer covenants and agrees as to itself and its Subsidiariesthat: (I) All inspection fees, except engineering fees, or other expenses of any kind incurred by Acquirer relating to the extent that Target shall inspection of the Property will be at Acquirer’s sole cost and expense; (II) Acquirer will advise Contributor at least two (2) business days in advance of the dates of all inspections and will schedule all tests and inspections during normal business hours whenever feasible unless otherwise consent in writing requested by Contributor; (which consent III) Contributor will have the right to have one or more representatives of Contributor accompany Acquirer and Acquirer’s representatives, agents or designees while they are on the Property; (IV) Any entry by Acquirer, its representatives, agents or designees will not be unreasonably withheld interfere with Contributor’s use of the Property or delayed), to carry on its business in with the usual, regular and ordinary course in substantially the same manner as previously conducted, to pay its debts and taxes when due subject to good faith disputes over such debts or taxes, to pay or perform its other obligations when due, and, to the extent consistent with such business, use all reasonable efforts consistent with past practices and policies to (i) preserve intact its present business organization, (ii) keep available the services of its present officers and key employees and (iii) preserve its relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with it. Acquirer shall promptly notify Target operations of any event tenant; (V) Acquirer, its representatives, agents or occurrence designees will not in the ordinary course of business of Acquirer of which Acquirer has knowledge where such event or occurrence would result in a breach of perform any covenant of Acquirer set forth in this Agreement or cause any representation or warranty of Acquirer to be inaccurate in any material respect as of the date made or (except in the case of representations and warranties that speak as of a specific date) as of the Effective Time. Except as expressly contemplated by this Agreement, Acquirer shall not (and shall not permit any of its Subsidiaries to), invasive testing without the prior written consent of Target (Contributor, which consent shall not may be unreasonably granted or withheld or delayed): (a) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect of any of its capital stock, or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stockContributors’ sole discretion; (bVI) PurchaseAcquirer will restore any damage caused to the Property by Acquirer’s entry on the Property for inspection purposes at Acquirer’s sole cost and expenses if this transaction does not close; and (VII) In making any inspection hereunder, redeem or otherwise acquire, directly or indirectly, Acquirer will treat and will cause any shares representative of its capital stock except from former employees, directors and consultants Acquirer to treat all information obtained by Acquirer pursuant to the terms of this Agreement as strictly confidential in accordance with agreements providing for the repurchase of shares in connection with any termination of service by such party;Section 21 below. (cVIII) Issue, deliver or sell If during the Due Diligence Period Acquirer elects to any of its directors, officers, employees or consultants any shares of its capital stock or securities convertible into shares of its capital stock, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue any such shares or convertible securities, other than the issuance, delivery and/or sale of (i) rights to purchase shares of Acquirer Common Stock under the Acquirer Purchase Plan, (ii) options to purchase shares of Acquirer Common Stock granted under the Acquirer Option Plans in the ordinary course of business consistent with Acquirer's past policies or (iii) shares of Acquirer Common Stock issuable upon the exercise of options granted under the Acquirer Option Plans or pursuant to rights under the Acquirer Purchase Plan; (d) Issue, deliver or sell or authorize or propose the issuance, delivery or sale of, any shares of its capital stock or securities convertible into shares of its capital stock, or subscriptions, rights, warrants or options to acquire any such shares or convertible securities (i) by means of any public offering registered under the Securities Act (other than an offering registered pursuant to perform a registration statement on Form S-8) or (ii) in any transaction exempt from such registration where the gross proceeds from such transaction are reasonably expected to exceed $50,000,000 (other than Acquirer Series B Preferred Stock and warrants issuable pursuant to the Acquirer Series B Agreements, the securities of Acquirer issuable upon conversion of Acquirer Series B Preferred Stock or upon the exercise of warrants issuable pursuant to the Acquirer Series B Agreements), in any such case unless Acquirer has advised Target in advance of its intention to effect such offering or enter into such transaction and, if Target so requests, consulted with Target regarding the advisability of such proposed offering or transaction; (e) Acquire or agree to acquire by merging or consolidating with, or by purchasing an equity interest in or a substantial portion of the assets of, or by any other manner, any business or any corporation or other business organization or division where the consideration to be paid by Acquirer therefor consists of voting securities, cash and/or other assets having an aggregate value (as determined in good faith by the Board of Directors of Acquirer at the time such acquisition is approved by such Board) of more than $125,000,000 unless Acquirer has advised Target in advance of its intention to effect such acquisition and, if Target so requests, consulted with Target regarding the advisability of such proposed acquisition; (f) Sell, lease, license or otherwise dispose of (by merger, consolidation, sale of assets or otherwise) any of its properties or assets which are material, individually or in the aggregate, to the business of Acquirer and its Subsidiaries, taken as a whole, except for licenses and sales in the ordinary course of business; (g) Amend or propose to amend its Certificate of Incorporation or Bylaws, except as contemplated by this Agreement; (h) Agree in writing or otherwise to take any of the actions described in Sections (a) through (g) above; orPhase 2 Environmental Audit: (i) Take The Phase 2 Environmental Audit shall be conducted pursuant to applicable industry standards. Without limitation, intrusive sampling or testing of soil or subsurface conditions are at all times prior to the Closing subject to Contributor’s prior written approval, which may be granted or withheld by Contributor in its sole and absolute discretion. (ii) If the Closing fails to occur for any reason other action which is reasonably likely than a default by Contributor, then if requested by Contributor, Acquirer will deliver all copies of the draft report to, and they will become the property of, the Company, and in any event Acquirer will not disclose to make any party the contents of the draft report except pursuant to valid legal process or with the written consent of the Company. (iii) Any ground water, soil or other samples taken from the Property will be properly disposed of by Acquirer at Acquirer's representations or warranties ’s sole cost and in accordance with all applicable laws. The Covenants of Acquirer contained in this paragraph shall survive the Closing or any earlier termination of this Agreement inaccurate in any material respect as for a period of the date made or twelve (except in the case of representations or warranties that speak specifically as of the date hereof or as of another specific date12) as of the Effective Timemonths.