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.
Covenants of the Selling Shareholders Each Selling Shareholder, in addition to its other agreements and obligations hereunder, severally and not jointly, covenants with each Underwriter as follows:
(a) Such Selling Shareholder agrees that (i) it will not prepare, or have prepared on its behalf, or use or refer to, any “free writing prospectus” (as defined in Rule 405 under the Securities Act), and (ii) it will not distribute any written materials in connection with the offer or sale of the Shares.
(b) Not to take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriters that the Underwriters otherwise would not have been required to file thereunder.
(c) During the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Securities Act) is required under the Securities Act, such Selling Shareholder will advise the Underwriters promptly, and will confirm such advice in writing to the Underwriters, of any change in the information relating to such Selling Shareholder in the Registration Statement, the Time of Sale Prospectus or the Prospectus.
(d) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(e) Each of the Selling Shareholders agrees to deliver to the Underwriters prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(f) Each of the Selling Shareholders agrees to deliver to the Underwriters prior to or at the Closing Date a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) in form and substance reasonably satisfactory to the Underwriters.
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 Purchasers Each Purchaser covenants and agrees with the Company as follows:
Covenants of the Buyer The Buyer covenants and agrees with the Seller as follows:
Covenants of the Shareholder The Shareholder hereby irrevocably covenants and agrees that during the period commencing on the date hereof and continuing until the termination of this Agreement pursuant to Section 3:
(a) it will not, directly or indirectly, through any officer, director, employee, advisor, representative, agent or otherwise: (i) solicit, initiate, knowingly encourage, continue or otherwise facilitate (including, without limitation, by way of furnishing information or entering into any form of agreement, arrangement or understanding) the initiation of any inquiries or proposals regarding an Acquisition Proposal; (ii) participate in any discussions or negotiations regarding any Acquisition Proposal; or (iii) accept or enter into any agreement, letter of intent, arrangement or understanding related to any Acquisition Proposal;
(b) if the Shareholder receives any Acquisition Proposal in its capacity as a holder of Shares (including, without limitation, an offer or invitation to enter into discussions), whether written or oral, the Shareholder will as promptly as practicable notify Vasogen, in writing, and provide to Vasogen a copy thereof if written, and if verbal, a description of the principal terms, including the price proposed to be paid in connection therewith, the form of consideration to be paid, the material terms and the identity of the proponent;
(c) it will vote the Shares in support of all things proposed by IPC and Vasogen that are necessary, proper or advisable under applicable laws to consummate the Transactions;
(d) it will not grant or agree to grant any proxy or other right to the Shares, or enter into any voting trust, vote pooling or other agreement with respect to the right to vote, call Meetings or give consents or approvals of any kind with respect to the Shares, other than pursuant to the provisions hereof;
(e) it will not, without the prior written consent of Vasogen, sell, transfer, monetize, hypothecate, pledge, encumber, grant a security interest in, encumber or otherwise convey or grant an option over any of the Shares (or any right or interest therein (legal or equitable)) held by it to any person, entity or group or agree to do any of the foregoing;
(f) except as required by applicable Law (after fully consulting with Vasogen), it will not, prior to the public announcement by IPC, IPC Corp. and Vasogen of the terms of the Transactions, directly or indirectly, disclose to any person, firm or corporation (other than on a confidential basis to such advisors (if any) as the Shareholder may determine are necessary to retain specifically for the purposes of this Agreement) the existence of the terms and conditions of this Agreement, the Arrangement Agreement or the Merger Agreement, or any terms or conditions or other information concerning the Transactions;
(g) it will not, without the prior written consent of Vasogen, not to be unreasonably withheld, purchase, or enter into any agreement or right to purchase, any additional shares of IPC; and
(h) it will do all things required, necessary, proper or advisable to consummate the transactions contemplated by this Agreement, the Arrangement Agreement and the Merger Agreement.
Covenants of the Purchaser The Purchaser covenants and agrees with the Company as follows:
Covenants of the Selling Stockholders Each Selling Stockholder further covenants and agrees with each Underwriter:
Covenants of the Stockholders Each of the Stockholders hereby covenants and agrees that:
Covenants of the Manager The Manager covenants with the Company not to take any action that would result in the Company being required to file with the Commission under Rule 433(d) a free writing prospectus prepared by or on behalf of the Manager that otherwise would not be required to be filed by the Company thereunder, but for the action of the Manager.
