Covenants of the Buyer The Buyer covenants and agrees with the Seller as follows:
Covenants of the Vendor 7.1 The Vendor hereby covenants that, during the Interim Period, the Vendor will, and will cause the Corporation to:
(a) carry on the Business in the ordinary course and use its best efforts to preserve the assets, the Business and the clients, customers and suppliers connected therewith;
(b) give the Purchaser, the Purchaser's Solicitors and the Purchaser's representatives full access during normal business hours to the properties, books, contracts, commitments and records of the Corporation;
(c) furnish the Purchaser with all information concerning the affairs of the Corporation as the Purchaser may reasonably request;
(d) do all things and cause all things to be done to ensure that all of the representations and warranties of the Vendor contained in this agreement remain true and correct throughout the Interim Period as if such representations and warranties were continuously made throughout such period;
(e) not enter into any contracts, commitments or transactions pertaining to the Business, or incur any indebtedness, obligations or liability or make any payment in respect thereof, except in the ordinary course of business;
(f) not incur any capital expenditures, or acquire or agree to acquire additional assets, or enter into any forward commitments for inventories, supplies or services (whether or not there are any contracts in writing with respect thereto), except in the ordinary course of business;
(g) not increase the wages or salaries or any other form of remuneration, direct or indirect, of any of the employees, officers or directors of the Corporation;
(h) not sell, agree to sell or otherwise dispose of any of the assets of the Corporation except in the ordinary course of business;
(i) pay, satisfy and discharge its obligations and liabilities in the ordinary course of business;
(j) obtain all necessary consents and approvals to the transaction herein contemplated required pursuant to the terms of any leases, contracts or rights of the Corporation or to which it is a party or to which any of the property or assets may be subject to or bound;
(k) not declare, pay or authorize dividends or other distributions on any shares of the Corporation or purchase or redeem any shares of the Corporation;
(l) not amend the Articles (as defined in the Business Corporations Act (Ontario)) of the Corporation, amalgamate or merge with any other corporation, or issue any securities (as defined in the Business Corporations Act (Ontario)) or redeem or purchase any issued securities;
(m) use their reasonable best efforts to ensure that the Corporation's bank operating line of credit from the Bank of Montreal shall remain in place with the Corporation immediately following the Closing Date, provided that Bank of Montreal fully releases any guarantees for that line of credit; and
(n) not increase the Shareholder's Loan amount nor shall any Shareholder's Loan related payments be made by the Corporation to the Vendor prior to the Time of Closing.
7.2 The Vendor hereby covenants that, at the Time of Closing, the Vendor will:
(a) furnish the Purchaser with a certificate of the Vendor stating that the representations and warranties of the Vendor contained in this agreement are true at the Time of Closing, as though then made, and that the covenants of the Vendor to be complied with at or prior to the Time of Closing have been complied with, provided that the receipt of such evidence and the closing of the transaction contemplated herein shall not be a waiver of the representations, warranties and covenants of the Vendor which are contained in this agreement;
(b) deliver to the Purchaser evidence reasonably satisfactory to the Purchaser's Solicitors that all necessary corporate authorizations authorizing and approving the transaction contemplated herein have been obtained in respect of the Corporation;
(c) deliver to the Purchaser a written acknowledgement from the lessor of any leased premises, in a form reasonably satisfactory to the Purchaser's Solicitors, acknowledging that the lease in respect thereof is in good standing, that all rents, additional rents and other amounts due and payable by the Corporation pursuant to such lease have been paid in full to the Effective Date, and that the Corporation is not in breach of its obligations under such lease, together with the unconditional written consent of the said lessor to the sale of the Purchased Shares to the Purchaser, if required under the terms of such lease;
(d) provide the Purchaser with evidence reasonably satisfactory to the Purchaser that the Vendor is not then a "non-resident" of Canada within the meaning of the Income Tax Act (Canada);
(e) provide the Purchaser with the favourable opinion of the Vendor's Solicitors in a form reasonably satisfactory to the Purchaser's Solicitors, acting reasonably:
(i) as to the authorized and issued capital of the Corporation and the shareholder and shareholdings in the Corporation;
(ii) that all issued and outstanding shares in the capital of the Corporation are issued and outstanding as fully paid and non-assessable; Page 38 of 75 - Share Purchase Agreement Initial -----------
(iii) that the Corporation has been duly amalgamated and organized and is a valid and subsisting corporation under the laws of the Province of Ontario;
(iv) that all necessary actions and proceedings have been taken to authorize and permit the due and valid transfer of the Purchased Shares at the Time of Closing from the Vendor to the Purchaser; and
(v) that this agreement has been duly executed and delivered by the Vendor and constitutes a valid and binding obligation of the Vendor, enforceable against her in accordance with its terms (subject to bankruptcy laws and the availability of equitable remedies) and, to the knowledge of the Vendor's Solicitors, does not violate the provisions of any indenture or agreement to which the Vendor or the Corporation or either of them are a party or by which either of them are bound;
(f) cause all necessary steps and proceedings as may reasonably be approved by the Purchaser's Solicitors to be taken so that the Purchased Shares may be properly transferred to the Purchaser at the Time of Closing; and in that regard, deliver to the Purchaser at the Time of Closing certificates representing all of the Purchased Shares, such certificates being duly endorsed for transfer to the Purchaser, and cause transfers of all the Purchased Shares to be duly and regularly recorded in the name of the Purchaser or as it may in writing direct;
(g) cause all of the directors and officers of the Corporation as are specified by the Purchaser to resign in favour of nominees of the Purchaser. All shareholder's and director's resolutions required to cause the actions of this Section 7.2(g) shall be approved at the Time of Closing;
(h) deliver and cause to be delivered by all of the directors and officers of the Corporation and by the Vendor, as shareholder of the Corporation, a complete release, with effect from the Time of Closing, of all claims against the Corporation of any and all matters whatsoever in a form satisfactory to the Purchaser's Solicitors, acting reasonably;
(i) deliver and cause to be delivered to the Purchaser the corporate seal, minute books, share certificates, share certificate books, share transfers, share register books, directors' register and any and all documents, records, books, instruments and agreements of or pertaining or relating to the Corporation and its Business, property and assets;
(j) deliver to the Purchaser a release executed by the Vendor with respect to all payroll and severance related obligations of the Corporation;
(k) deliver and cause to be delivered to the Purchaser the Escrow Agreement, duly executed by the Vendor;
(l) deliver and cause to be delivered to the Purchaser a release executed by Xxxx Xxxxx with respect to all obligations of the Corporation;
(m) pay to the Corporation $273,884 for the purchase as of the Effective Date of the Cash Value Of Life Insurance and the respective insurance policy from the Corporation; Page 39 of 75 - Share Purchase Agreement Initial -----------
(n) deliver and cause to be delivered to the Purchaser a non-competition covenant from Xxxx Xxxxx in the form attached hereto as Schedule "7.2(n)";
(o) deliver and cause to be delivered to the Purchaser the New Lease between Alpen and the Corporation to become effective on September 1, 2004 (the day immediately following the last day of the Corporation's current lease agreement with Alpen);
(p) pay all the non-arms length expenses, accounts payable and accrued liabilities of the Corporation, excluding any ordinary course lease payments and payroll related transactions, from the date of this Agreement to the Time of Closing, and release the Corporation from the obligation to repay the Vendor for these payments; and
(q) shall release, and cause the Vendor's affiliates, including any of the Vendor's family that is or has been employed by the Corporation, or the Vendor shall indemnify the Purchaser and the Corporation from any and all severance obligations related to their employment by the Corporation, and any other contractual obligations of the Corporation to the Vendor and her affiliates.
7.3 The Vendor hereby covenants that, subsequent to the Date of Closing, the Vendor will:
(a) at the request and expense of the Purchaser, execute and deliver such additional conveyances, transfers and other assurances as may, in the reasonable opinion of the Purchaser's Solicitors, be required to carry out the intent of this agreement and to transfer the Purchased Shares to the Purchaser;
(b) only discharge the Security Interests when the payments of Sections 3.2(a), 3.2(b), 3.2(c), 3.2(d) and 3.2
Covenants of the Company The Company covenants and agrees as follows:
Covenants of Company In the event that any litigation with claims in excess of $1,000,000 to which the Company is a party which shall be reasonably likely to result in a material judgment against the Company that the Company will not be able to satisfy shall be commenced by an Owner, during the period beginning nine months following the commencement of such litigation and continuing until such litigation is dismissed or otherwise terminated (and, if such litigation has resulted in a final judgment against the Company, such judgment has been satisfied), the Company shall not make any distribution on or in respect of its membership interests to any of its members, or repay the principal amount of any indebtedness of the Company held by CFC, unless (i) after giving effect to such distribution or repayment, the Company's liquid assets shall not be less than the amount of actual damages claimed in such litigation or (ii) the Rating Agency Condition shall have been satisfied with respect to any such distribution or repayment. The Company will not at any time institute against the Trust any bankruptcy proceedings under any United States federal or state bankruptcy or similar law in connection with any obligations relating to the Certificates, the Notes, this Agreement or any of the Basic Documents.
Covenants of Stockholder Stockholder hereby covenants and agrees that:
COVENANTS OF ICANN ICANN covenants and agrees with Registry Operator as follows:
Covenants of Parent Parent agrees that:
Covenants of the Fund The Fund covenants with the Underwriter as follows:
(a) The Fund will use its best efforts (i) to cause the Registration Statement to become effective under the Securities Act, and will advise the Underwriter promptly as to the time at which the Registration Statement and any amendments thereto (including any post-effective amendment) becomes so effective and (ii) if required, to cause the issuance of any orders exempting the Fund from any provisions of the Investment Company Act, and the Fund will advise the Underwriter promptly as to the time at which any such orders are granted.
(b) The Fund will notify the Underwriter immediately, and will confirm the notice in writing, (i) of the effectiveness of the Registration Statement and any amendments thereto (including any post-effective amendment), (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, and (v) of the issuance by the Commission of an order of suspension or revocation of the notification on Form N-8A of registration of the Fund as an investment company under the Investment Company Act or the initiation of any proceeding for that purpose. The Fund will make every reasonable effort to prevent the issuance of any stop order described in subsection (iv) hereunder or any order of suspension or revocation described in subsection (v) hereunder and, if any such stop order or order of suspension or revocation is issued, to obtain the lifting thereof at the earliest possible moment. If the Fund elects to rely on Rule 434 under the Rules and Regulations, the fund will prepare a term sheet that complies with the requirements of Rule 434 under the Rules and Regulations and the Fund will provide the Underwriter with copies of the form of Rule 434 Prospectus, in such number as the Underwriter may reasonably request by the close of business in New York on the business day immediately succeeding the date of the Pricing Agreement.
(c) The Fund will give the Underwriter notice of its intention to file any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Fund proposes for use by the Underwriter in connection with the offering of the Shares, which differs from the prospectus on file at the Commission at the time the Registration Statement becomes effective, whether such revised prospectus is required to be filed pursuant to Rule 497(c) or Rule 497(h) of the Rules and Regulations or any term sheet prepared in reliance on Rule 434 of the Rules and Regulations), whether pursuant to the Investment Company Act, the Securities Act, or otherwise, and will furnish the Underwriter with copies of any such amendment or supplement a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file any such amendment or supplement to which the Underwriter reasonably shall object.
(d) The Fund will deliver to the Underwriter, as soon as practicable, two signed copies of the notification of registration and registration statement as originally filed and of each amendment thereto, in each case with two sets of the exhibits filed therewith, and also will deliver to the Underwriter a conformed copy of the registration statement as originally filed and of each amendment thereto (but without exhibits to the registration statement or any such amendment) for the Underwriter.
(e) The Fund will furnish to the Underwriter, from time to time during the period when the Prospectus is required to be delivered under the Securities Act, such number of copies of the Prospectus (as amended or supplemented) as the Underwriter reasonably may request for the purposes contemplated by the Securities Act, or the Rules and Regulations.
(f) If any event shall occur as a result of which it is necessary, in the opinion of counsel to the Fund and the Underwriter, to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, the Fund forthwith will amend or supplement the Prospectus by preparing and furnishing to the Underwriter a reasonable number of copies of an amendment or amendments of or a supplement or supplements to, the Prospectus (in form and substance satisfactory to counsel to the Fund and the Underwriter), so that, as so amended or supplemented, the Prospectus will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading.
(g) The Fund will endeavor, in cooperation with the Underwriter, to qualify the Shares for offering and sale under the applicable securities laws of such states and other jurisdictions of the United States as the Underwriter may designate, and will maintain such qualifications in effect for a period of not less than one year after the date hereof. The Fund will file such statements and reports as may be required by the laws of each jurisdiction in which the Shares have been qualified as above provided.
(h) The Fund will make generally available to its security holders as soon as practicable, but no later than 60 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the Rules and Regulations) covering a twelve-month period beginning not later than the first day of the Fund's fiscal quarter next following the "effective" date (as defined in said Rule 158) of the Registration Statement.
(i) Between the date of this Agreement and the termination of any trading restrictions or Closing Time, whichever is later, the Fund will not, without your prior consent, offer or sell, or enter into any agreement to sell, any equity or equity related securities of the Fund other than the Shares and the Common Shares issued in reinvestment of dividends or distributions.
(j) If, at the time that the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A of the Rules and Regulations, then immediately following the execution of the Pricing Agreement, the Fund will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A and Rule 497(h) of the Rules and Regulations, copies of the amended Prospectus, or, if required by such Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus), containing all information so omitted.
(k) The Fund will use its best efforts to maintain its qualification as a regulated investment company under Subchapter M of the Code.
Certain Covenants of Stockholder 7.1 Except in accordance with the provisions of this Agreement, Stockholder agrees, while this Agreement is in effect, not to, directly or indirectly:
(a) sell, transfer, pledge, encumber, assign or otherwise dispose of, or enter into any contract, option or other arrangement or understanding with respect to the sale, transfer, pledge, encumbrance, assignment or other disposition of, any of the Shares;
(b) grant any proxies, deposit any Shares into a voting trust or enter into a voting agreement with respect to any Shares; or
(c) solicit, initiate or encourage the submission of any proposal or offer from any person (other than Saturn or Merger Sub) relating to any acquisition or purchase of all or any material portion of the assets of, or any equity interest in (other than pursuant to the exercise of options outstanding on the date hereof), Smartflex or any subsidiary of Smartflex, or any merger, consolidation, business combination, reorganization, recapitalization or similar transaction involving Smartflex or any subsidiary of Smartflex (each a "Competing Transaction"), or participate in any discussions or negotiations regarding, or furnish to any other person any information with respect to, or otherwise, cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any person (other than Saturn and Merger Sub) to do or seek any of the foregoing, Stockholder will cease and cause to be terminated any existing activities, discussions or negotiations by or on its behalf with any person (other than Saturn and Merger Sub) conducted heretofore with respect to any Competing Transaction and will promptly notify Saturn following receipt of any request by any person (other than Saturn or Merger Sub) relating to any possible Competing Transaction or information concerning Smartflex. Nothing contained herein will prohibit Stockholder, solely in his capacity as an officer or as a member of the board of directors of Smartflex (the "Board"), from furnishing information to, or entering into discussions or negotiations with, any person (other than Saturn and Merger Sub) in connection with an unsolicited proposal involving a fully-financed (as represented by such person) Competing Transaction which is made in writing by such person (other than Saturn and Merger Sub) and which, if consummated, would provide consideration per share, of Common Stock to the stockholders of Smartflex in excess of the Offer Price if, and only to the extent that, the Board determines in good faith, based upon the advice of SG Cxxxx Xxxurities Corporation and the written advice of Straxxxxx Xxxcx Xxxlxxx & Xautx, xxat such action is required for the Board to comply with its fiduciary duties to stockholders under Delaware law.
7.2 Stockholder agrees, while this Agreement is in effect, to notify Saturn promptly of the number of any shares of Common Stock beneficial ownership of which is acquired by Stockholder after the date hereof.
Covenants of the Shareholders (a) Each Shareholder agrees that, during the period commencing on the date hereof and continuing until the termination of this Agreement in accordance with Section 10, it shall not take any action of any kind that may in any way adversely affect, by delay or otherwise, the likelihood of success of the Arrangement, and in furtherance and not in limitation of the foregoing, each Shareholder shall not, directly or indirectly:
(i) option, sell, assign, transfer, dispose of, hypothecate, alienate, grant a security interest in, encumber in any way, tender to any offer or otherwise convey any Subject Shares or Convertible Securities or any right or interest therein or enter into any agreement to do any of the foregoing;
(ii) grant or agree to grant any proxy or other right to the Subject Shares, or enter into any voting trust or pooling agreement or arrangement or otherwise relinquish or modify its right to vote any of the Subject Shares, or enter into or subject any of the Subject Shares to any other agreement, arrangement, understanding or commitment, formal or informal, with respect to or relating to the voting thereof;
(iii) (A) make, solicit, assist, initiate, encourage, or otherwise facilitate (including by way of furnishing information or entering into any form of written or oral agreement, arrangement or understanding) any inquiries, proposals or offers from any person regarding any Acquisition Proposal, or (B) engage or participate in any discussions or negotiations regarding any Acquisition Proposal, or (C) otherwise co-operate in any way with, or assist or participate in or facilitate or encourage any effort or attempt by any other person to do or seek to do any of the foregoing;
(iv) take any action of any kind, directly or indirectly, which may cause its representations or warranties hereunder to become untrue; or
(v) take any action to encourage or assist any other person to do any of the prohibited acts referred to in this Section 4(a).
(b) Each Shareholder agrees that, during the period commencing on the date hereof and continuing until the termination of this Agreement in accordance Section 10, it shall:
(i) (A) forthwith notify Symmetry and Acquisitionco, at first orally and then in writing, of all Acquisition Proposals currently under consideration and immediately cease and cause to be terminated any existing solicitations, encouraged activities, discussions or negotiations such Shareholder is engaged in with any person (other than Symmetry and Acquisitionco) with respect to or which could lead to any potential Acquisition Proposal from and after the date hereof, and (B) promptly (and in any event within 24 hours) notify Symmetry and Acquisitionco, at first orally and then in writing, of any inquiries, proposals or offers that such Shareholder receives or of which such Shareholder becomes aware, relating to, constituting or which such Shareholder reasonably believes could lead to an Acquisition Proposal, such notice to include a description of the terms and conditions of, and the identity of the person making, any proposal, inquiry or offer or any amendment thereto, and such other details of the proposal, inquiry or offer as Symmetry and Acquisitionco may reasonably request, including a copy thereof; and
(ii) use its commercially reasonable efforts (which, for greater certainty, shall not include influencing the board of directors of the Company) to assist Symmetry and Acquisitionco to successfully complete the Arrangement, including co-operating with Symmetry and Acquisitionco in: (A) making all requisite regulatory filings and giving evidence in relation thereto; (B) meeting with prospective lenders and investors in presentations, meetings, road shows and due diligence sessions; and (C) providing investor relations support and communicating with the shareholders of both Symmetry and the Company; and
(iii) perform all obligations required to by it under this Agreement and the Arrangement Agreement in order to consummate and make effective, as soon as reasonably practicable, the Transactions.
(c) Each Shareholder agrees that, during the period commencing on the date hereof and continuing until 36 months following the Effective Time, none of such Shareholder, its affiliates (including any person that, directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with such Shareholder) and its representatives (including any directors, officers, employees, financial advisors, or other agents) or any person not dealing at arms length (within the meaning of the Income Tax Act (Canada)) with any of the foregoing shall, directly or indirectly, in any manner, acquire or agree to acquire or make any offer or proposal to acquire any securities of Symmetry or any property deriving its value in whole or in part from securities of Symmetry.
(d) Each Shareholder consents to the disclosure of the substance of this Agreement in any press release or any circular relating to the Arrangement and to the filing of this Agreement as may be required pursuant to applicable Law.
(e) Each Shareholder (if such Shareholder is a corporation or trust) shall ensure that the officers, directors, trustees and employees of it and its subsidiaries (other than the Company and the Company Subsidiaries) and any financial advisors or other advisors or representatives retained by it are aware of the provisions of this Section 4, and it shall be responsible for any breach of this Section 4 by any such persons.
