Covenants of the Parent. (a) The Parent will not take any actions which would cause a breach of the provisions of Section 2 by the Borrower. (b) Without limiting the foregoing, the Parent hereby covenants and agrees as follows (except as provided in the Loan Documents): (i) The Parent shall maintain its own bank and investment accounts and records, and all other books of account and records separate and distinct from those of the Borrower; (ii) The Parent, as a stockholder of the Borrower, shall not have any legal, equitable, or other interest whatsoever in any of the assets of the Borrower other than pursuant to Delaware law; (iii) The Parent shall not be entitled to receive any distributions on account of any interest in the Borrower other than pursuant to Delaware law; (iv) The Parent shall not commingle its funds or other assets with those of the Borrower, and funds and other assets of the Parent shall at all times be separately identified and segregated; (v) The Parent shall be, and at all times shall hold itself out to its creditors, governmental entities and the public as, a legal entity separate and distinct from the Borrower, and the Parent shall act and conduct business solely in its own name and through its own authorized officers and agents, shall correct any known misunderstanding regarding its status as a separate identity from the Borrower, and shall not identify itself or any of its affiliates as a division or part of the Borrower; (vi) The Parent shall not maintain, prepare or issue consolidated financial statements that include the Borrower unless such consolidated financial statements clearly indicate that they consolidate the financial statements of separate legal entities; (vii) The Parent shall observe all corporate and other legal formalities and shall take all appropriate action necessary to maintain its existence as a corporation under the laws of the State of Delaware separate and distinct from the existence of each of the other Parties or any other entity; (viii) There shall be no transfers of assets among Parent, on the one hand, and the Borrower, on the other hand, other than (a) pursuant to the Loan Documents and (b) (i) capital contributions or corporate dividends; (ii) pursuant to a tax sharing agreement or arrangement which provides for a fair and reasonable allocation of tax liabilities and tax benefits among the Parent and the Borrower based on their respective separate company taxable income or loss (or other items on which the relevant tax liability is based); (iii) in connection with transactions documented in writing on terms and conditions that are arm's length in all material respects, and (iv) in the case of each of the foregoing, in compliance with corporate formalities, the Loan Documents and applicable law; (ix) The Parent shall not guarantee or otherwise hold out its assets or credit as being available to satisfy obligations of any kind of the Borrower, other than as provided in the Loan Documents; and (x) The Parent shall not cause the Borrower to file any voluntary petition under the Bankruptcy Code, and the Parent shall not file or cause any other person to file an involuntary petition against the Borrower under the United States Bankruptcy Code, or institute or cause any other person to institute any proceeding against the Borrower for the Borrower to be adjudicated as bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against the Borrower, or file a petition or answer or consent seeking reorganization or relief for the Borrower under any applicable federal or state law relating to bankruptcy, or consent to the filing of any such petition or the appointment of a receiver, rehabilitator, conservator, liquidator, assignee, trustee, sequestrator (or other similar official) of the Borrower or of any part of its property, or order the winding-up or liquidation of the Borrower's affairs, or take any action in furtherance of any of the foregoing.
Appears in 1 contract
Samples: Note Purchase Agreement (Scient Inc)
Covenants of the Parent. The Parent covenants and agrees that, until the earlier of the Effective Time and the time that this Agreement is terminated in accordance with its terms, unless the Company otherwise consents in writing (to the extent that such consent is permitted by applicable Law), which consent will not be unreasonably withheld, conditioned or delayed, or as is otherwise expressly permitted or specifically contemplated by this Agreement or as is otherwise required by applicable Law:
(a) The the Parent will not take incur any actions which would cause a breach expenses except in conjunction with the transactions contemplated herein up to an aggregate maximum of the provisions of Section 2 by the Borrower.US$5,000;
(b) Without limiting the foregoingParent will promptly notify the Company in writing of any circumstance or development that has had or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Parent;
(c) the Parent will not, and will not permit any of the Parent Material Subsidiaries to, take any action that would: (i) reasonably be expected to prevent or significantly impede or materially delay the completion of the Acquisition; or (ii) render, or reasonably be expected to render, any representation or warranty made by the Exchangeco, Callco or the Parent in this Agreement untrue or inaccurate in any material respect (disregarding for this purpose all materiality or Material Adverse Effect qualifications contained therein);
(d) the Parent will, with respect to registering the Parent Shares issuable upon exchange of the Exchangeable Shares:
(A) prepare and file with the SEC a registration statement (the "Registration Statement") with respect to the Parent Shares issuable upon exchange of the Exchangeable Shares, the Parent hereby covenants and agrees as follows (except as provided in the Loan Documents):
(i) The Parent shall maintain its own bank and investment accounts and recordsShares issued to Non-Eligible Holders, and all other books of account and records separate and distinct from those the WSLegal\073132\00009\12677454v12 Parent Shares issuable upon conversion or exercise of the BorrowerConvertible Debenture Warrants and Advisor Warrants within 90 days following the closing of the Acquisition and thereafter use its commercially reasonable efforts to cause such registration statement to become effective;
(iiB) The Parentprepare and file with the SEC such amendments and supplements to such Registration Statement, and the prospectus used in connection with such registration statement, as a stockholder may be necessary to comply with the 1933 Act in order to enable the disposition of the Borrower, shall not have any legal, equitable, or other interest whatsoever in any of the assets of the Borrower other than pursuant to Delaware lawall securities covered by such Registration Statement;
(iiiC) The use its commercially reasonable efforts to register and qualify the securities covered by such registration statement under such other securities or blue-sky laws of such jurisdictions as shall be reasonably requested by the Shareholders; provided that the Parent shall not be entitled required to receive qualify to do business or to file a general consent to service of process in any distributions on account of any interest such states or jurisdictions, unless the Parent is already subject to service in such jurisdiction and except as may be required by the Borrower other than pursuant to Delaware law;1933 Act; and
(ivD) The use its commercially reasonable efforts to cause all the Parent shall not commingle its funds or other assets with those Shares issuable upon exchange of the Borrower, and funds and other assets of Exchangeable Shares the Parent shall at all times be separately identified and segregated;
(v) The Parent shall be, and at all times shall hold itself out Shares issued to its creditors, governmental entities and the public as, a legal entity separate and distinct from the BorrowerNon-Eligible Holders, and the Parent shall act and conduct business solely in its own name and through its own authorized officers and agents, shall correct any known misunderstanding regarding its status as a separate identity from the Borrower, and shall not identify itself Shares issuable upon conversion or any of its affiliates as a division or part exercise of the Borrower;Convertible Debenture Warrants and Advisor Warrants covered by such registration statement to be eligible for quotation on the OTCQB.
(vie) The the Parent shall not maintain, prepare or issue consolidated financial statements that include the Borrower unless such consolidated financial statements clearly indicate that they consolidate the financial statements will file a "Notification to Acquire Control of separate legal entities;
(vii) The Parent shall observe all corporate and other legal formalities and shall take all appropriate action necessary to maintain its existence as a corporation under the laws of the State of Delaware separate and distinct from the existence of each of the other Parties or any other entity;
(viii) There shall be no transfers of assets among Parent, on the one hand, and the Borrower, on the other hand, other than (a) an Existing Canadian Business" pursuant to the Loan Documents and (b) (i) capital contributions or corporate dividends; (ii) pursuant to a tax sharing agreement or arrangement which provides for a fair and reasonable allocation of tax liabilities and tax benefits among Investment Canada Act within 30 days after the Parent and the Borrower based on their respective separate company taxable income or loss (or other items on which the relevant tax liability is based); (iii) in connection with transactions documented in writing on terms and conditions that are arm's length in all material respects, and (iv) in the case of each of the foregoing, in compliance with corporate formalities, the Loan Documents and applicable law;
(ix) The Parent shall not guarantee or otherwise hold out its assets or credit as being available to satisfy obligations of any kind of the Borrower, other than as provided in the Loan DocumentsEffective Date; and
(xf) The Parent and Callco shall not take all actions necessary to: (i) maintain in effect for all periods relevant hereto an election under § 301.7701-3 of the U.S. Treasury Regulations for Callco to be disregarded as an entity separate from the Parent for U.S. federal income tax purposes; and (ii) cause Callco for each taxable period of its existence to be disregarded as an entity separate from Parent for U.S. federal income tax purposes. Prior to the Borrower to file any voluntary petition under the Bankruptcy CodeEffective Time, and the Parent shall not file or cause any other person to file an involuntary petition against the Borrower under the United States Bankruptcy Code, or institute or cause any other person to institute any proceeding against the Borrower for the Borrower to be adjudicated as bankrupt or insolvent, or consent deliver to the institution Company a copy of bankruptcy or insolvency proceedings against the Borrower, or file a petition or answer or consent seeking reorganization or relief applicable Form 8832 (Entity Classification Election) for the Borrower under any applicable federal or state law relating to bankruptcy, or consent to the Callco and proof of filing of any such petition or Form 8832 by Callco with the appointment of a receiver, rehabilitator, conservator, liquidator, assignee, trustee, sequestrator (or other similar official) of the Borrower or of any part of its property, or order the winding-up or liquidation of the Borrower's affairs, or take any action in furtherance of any of the foregoingU.S. Internal Revenue Service.
Appears in 1 contract
Samples: Exchange Agreement (Biotricity Inc.)
Covenants of the Parent. (a) The Parent will not take any actions which would cause a breach of the provisions of Section 2 by the Borrower.
(b) Without limiting the foregoing, the Parent hereby covenants and agrees as follows (except as provided with the Trustee that until the Secured Obligations are paid in the Loan Documents):full:
(i) The Parent shall maintain If it, as a result of its own bank ownership of the Collateral Security, becomes entitled to receive or receives any limited liability company or other certificate (including in connection with any reclassification, increase or reduction of capital or reorganization), option or rights, whether in addition to, in substitution of, as a conversion of, or in exchange for any of the Collateral Security, or otherwise in respect thereof, it will (A) accept the same as the Trustee's agent and investment accounts and recordshold the same in trust for the Trustee, and all will forthwith transfer and deliver the same to the Trustee in the exact form received, duly indorsed by the Parent to the Trustee, and/or (B) take such other books of account action as the Trustee deems necessary or desirable to create, preserve, perfect and records separate protect the Liens and distinct from those of the Borrower;security interests created hereunder in such certificates, warrants, rights and options.
(ii) From time to time, at its own expense, it will promptly execute and deliver all further instruments and documents, and take all further action that the Trustee may reasonably deem necessary or desirable in order to perfect the Liens and security interests granted or purported to be granted hereby (including, without limitation, the execution and filing of any financing or continuation statements under the UCC in effect in any jurisdiction with respect to the security interest granted hereby) or to enable the Trustee to exercise and enforce its rights and remedies hereunder. The Parent, as a stockholder Parent also authorizes the Trustee to file any such financing or continuation statement without the signature of the BorrowerParent to the extent permitted by applicable law.
(iii) It will pay all filing, shall not have registration and recording fees or re-filing, re-registration and re-recording fees, and all expenses incident to the execution and acknowledgment of this Pledge, any legalagreement supplemental hereto, equitableany financing statements and continuations thereof, and any instruments of further assurance, and all federal, state, county and municipal stamp taxes and other taxes, duties, imposts, assessments and charges arising out of or other in connection with the execution and delivery of this Pledge, any agreement supplemental hereto and any instruments of further assurance.
(iv) On or prior to the Closing Date, it will cause the Company to deliver to the Trustee an acknowledgement of this Pledge and commitment to be bound by the terms hereof, substantially in the form set forth in Exhibit A.
(v) It will not, without the prior written consent of the Trustee, (A) cancel or terminate the LLC Agreement or consent to or accept any cancellation or termination thereof, (B) withdraw from the Company or sell, assign or otherwise transfer or dispose of (by operation of law or otherwise) any part of its interest whatsoever in any of the assets of the Borrower other than pursuant to Delaware law;
Collateral Security, (iiiC) The Parent shall not be entitled to receive consent to, approve or permit any distributions on account of any decrease in its ownership interest in the Borrower other than pursuant to Delaware law;
Company, (ivD) The Parent shall not commingle its funds amend, supplement or other assets with those otherwise modify any provision of the BorrowerLLC Agreement, and funds and other assets (E) waive any default under or breach of any provision of the Parent shall at all times be separately identified and segregated;
(v) The Parent shall beLLC Agreement or waive, and at all times shall hold itself out fail to its creditorsenforce, governmental entities and forgive or release any right, interest or entitlement of any kind, howsoever arising, under or in respect of any provision of the public as, a legal entity separate and distinct from LLC Agreement or vary or agree to the Borrower, and the Parent shall act and conduct business solely variation in its own name and through its own authorized officers and agents, shall correct any known misunderstanding regarding its status as a separate identity from the Borrower, and shall not identify itself or way of any of its affiliates as a division or part the provisions of the Borrower;LLC Agreement, or of the performance of any other Person under the LLC Agreement, or (F) petition, request or take any other legal or administrative action that seeks, or may reasonably be expected to result in, the rescission, termination or suspension of the LLC Agreement.
(vi) The Parent shall not maintainIt will, prepare at its own expense, perform and comply with the terms and provisions of the LLC Agreement to be performed or issue consolidated financial statements complied with by it, maintain the LLC Agreement in full force and effect, and take all such action to that include end as from time to time may be reasonably requested by the Borrower unless such consolidated financial statements clearly indicate that they consolidate the financial statements of separate legal entities;Trustee.
(vii) The Parent shall observe It will, upon demand, pay to each Collateral Party the amount of any and all corporate reasonable expenses, including the reasonable fees and expenses of its respective counsel and of any experts and agents, that any Collateral Party may incur in connection with the sale of, collection from, or other legal formalities and shall take all appropriate action necessary to maintain its existence as a corporation under the laws realization upon, any of the State Collateral Security pursuant to the exercise or enforcement of Delaware separate and distinct from the existence of each any of the other Parties rights of the Trustee hereunder as the result of an Event of Default or the failure by the Parent to perform or observe any other entity;of the provisions hereof, together with interest thereon at the rate borne by the Bonds.
(viii) There shall be no transfers of assets among ParentIt will keep and maintain at the Office, on the one handat its own cost and expense, satisfactory and the Borrower, on the other hand, other than (a) pursuant to the Loan Documents and (b) (i) capital contributions or corporate dividends; (ii) pursuant to a tax sharing agreement or arrangement which provides for a fair and reasonable allocation of tax liabilities and tax benefits among the Parent and the Borrower based on their respective separate company taxable income or loss (or other items on which the relevant tax liability is based); (iii) in connection with transactions documented in writing on terms and conditions that are arm's length in all material respects, and (iv) in the case of each complete records of the foregoingCollateral Security, in compliance with corporate formalities, including an original copy of the Loan Documents LLC Agreement and applicable law;a record of all payments received by and all credits granted to it.
(ix) The Parent shall not guarantee or otherwise hold out its assets or credit as being available to satisfy obligations It will permit representatives of any kind Collateral Party to make, or cause to be made, inspections and audits of any books, records and papers of the BorrowerParent relevant to the transactions contemplated hereby and to make extracts therefrom upon reasonable notice during normal business hours, other than as provided in the Loan Documents; andand at reasonable intervals.
(x) The Parent shall It will not cause create, incur or permit to exist, will defend the Borrower Collateral Security against, and will take such other action as is necessary to file remove, any voluntary petition Lien or claim on or to the Collateral Security, other than the Lien created hereby, and will defend the right, title and interest of the Trustee in and to any of the Collateral Security against the claims and demands of all Persons whomsoever.
(xi) It will furnish to the Trustee from time to time statements and schedules further identifying and describing the Collateral Security and such other reports in connection with the Collateral Security, all in reasonable detail, as the Trustee may reasonably request.
(xii) It will not change its name, identity or structure to such an extent that any financing statement or continuation thereof filed by the Trustee in connection herewith would become seriously misleading or a re-filing of the same would be required under the Bankruptcy CodeUCC, unless, in any such case, it has (A) given at least 45 days' prior notice to such effect to the Trustee, and (B) taken all action reasonably satisfactory to the Trustee to maintain the security interest of the Trustee in the Collateral Security intended to be granted hereby at all times fully perfected and in full force and effect. It will not sign or authorize the signing on the Parent's behalf of any financing statement naming the Parent shall as debtor covering all or any portion of the Collateral Security, except financing statements naming the Trustee as secured party.
(xiii) It will not file authorize, seek to cause or cause any permit the Company to commence a voluntary case or other person to file an involuntary petition against the Borrower under the United States Bankruptcy Codeproceeding seeking liquidation, reorganization or institute or cause any other person to institute any proceeding against the Borrower for the Borrower to be adjudicated as bankrupt or insolvent, or consent relief with respect to the institution of bankruptcy Company or insolvency proceedings against the Borrower, or file a petition or answer or consent seeking reorganization or relief for the Borrower Company's debts under any applicable federal or state law relating to bankruptcy, insolvency or consent to the filing of any such petition other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, rehabilitator, conservator, liquidator, assignee, trustee, sequestrator (custodian or other similar official) official of the Borrower Company or of any substantial part of its propertythe Company's property or to consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against the Company, or order to make a general assignment for the winding-up or liquidation benefit of the BorrowerCompany's affairs, or take any action in furtherance of any of the foregoingcreditors.
Appears in 1 contract
Samples: Limited Liability Company Pledge Agreement (Intrepid Technology & Resources, Inc.)
Covenants of the Parent. (a1) The Parent shall make a public announcement of the Closing of the Offering and the Merger by filing with the SEC a Current Report on Form 8-K and issuing a press release within the time periods required under the federal securities laws.
(2) The Parent shall not publicly disclose the name of any Purchaser, or include the name of any Purchaser in any filing or press release without the prior written consent of such Purchaser, unless otherwise required by law. The Purchaser consents to the disclosure of its name and details of its purchase in the Registration Statement. The Parent shall not, and shall cause each of its officers, directors, employees and agents to not, knowingly provide any Purchaser with any material nonpublic information regarding the Parent from and after the issuance of the above referenced filings and press release without the express written consent of such Purchaser.
(3) The Parent shall use its commercially reasonable efforts to maintain the listing eligibility of the Parent Common Stock for quotation on the OTCBB unless it lists its shares for trading on an alternative stock exchange including at least one in the United States.
(4) Other than pursuant to the Registration Statement, prior to the Effective Date, the Parent may not file any registration statement (other than on Form S-8 or S-4) with the SEC with respect to any securities of the Parent. Until 90 days after the Effective Date, the Parent will not, directly or indirectly, offer, sell or grant any option to purchase, or otherwise dispose of (or announce any of the foregoing) any of its or its subsidiaries’ equity or equity equivalent securities, including, without limitation, any debt, preferred stock or other instrument or security that is, at any time during its life and under any circumstances, convertible into or exchangeable or exercisable for Parent Common Stock or Parent Common Stock equivalents, other than with respect to (i) grants of options or sales of Parent Common Stock pursuant to the Parent’s 2010 Equity Incentive Plan or (ii) to the sellers of, and in connection with the acquisition of, all of the capital stock or all or substantially all of the assets of another business.
(5) The Parent will not take sell, offer to sell, solicit offers to buy or otherwise negotiate in respect of any actions which would cause a breach “security” (as defined in the Securities Act) that is or could be integrated with the sale of the provisions Securities in a manner that would require the registration of Section 2 by the BorrowerSecurities under the Securities Act.
(b6) Without limiting During the foregoingEffectiveness Period, as long as any Purchaser owns any Registrable Securities, the Parent hereby covenants and agrees as follows (except as provided in the Loan Documents):
(i) The to timely file (or obtain extensions in respect thereof and file within the applicable grace period) all reports required to be filed by the Parent shall maintain its own bank and investment accounts and recordsafter the date hereof pursuant to the Exchange Act, and all other books of account and records separate and distinct from those of the Borrower;
(ii) The Parentmaintain compliance with all applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002 and all rules and regulations promulgated thereunder, except where noncompliance would not have, individually or in the aggregate, a Material Adverse Effect. During the Effectiveness Period, as a stockholder long as any Purchaser owns any Registrable Securities, if the Parent is not required to file reports pursuant to such laws, it will prepare and furnish to the Purchasers and make publicly available in accordance with Rule 144(c) such information as is required for the Purchasers to sell the PPO Shares and the shares of Parent Common Stock issuable upon exercise of the BorrowerPPO Conversion Warrants under Rule 144. The Parent further covenants that it will take such further action during the Effectiveness Period as any holder of any Registrable Securities reasonably request, shall not have any legal, equitable, or other interest whatsoever in any all to the extent required from time to time to enable such Person to sell the shares of Parent Common Stock held by such Person without registration under the Securities Act within the limitation of the assets of the Borrower other than pursuant to Delaware law;
(iii) The Parent shall not be entitled to receive any distributions on account of any interest in the Borrower other than pursuant to Delaware law;
(iv) The Parent shall not commingle its funds or other assets with those of the Borrower, and funds and other assets of the Parent shall at all times be separately identified and segregated;
(v) The Parent shall be, and at all times shall hold itself out to its creditors, governmental entities and the public as, a legal entity separate and distinct from the Borrower, and the Parent shall act and conduct business solely in its own name and through its own authorized officers and agents, shall correct any known misunderstanding regarding its status as a separate identity from the Borrower, and shall not identify itself or any of its affiliates as a division or part of the Borrower;
(vi) The Parent shall not maintain, prepare or issue consolidated financial statements that include the Borrower unless such consolidated financial statements clearly indicate that they consolidate the financial statements of separate legal entities;
(vii) The Parent shall observe all corporate and other legal formalities and shall take all appropriate action necessary to maintain its existence as a corporation under the laws of the State of Delaware separate and distinct from the existence of each of the other Parties or any other entity;
(viii) There shall be no transfers of assets among Parent, on the one hand, and the Borrower, on the other hand, other than (a) pursuant to the Loan Documents and (b) (i) capital contributions or corporate dividends; (ii) pursuant to a tax sharing agreement or arrangement which provides for a fair and reasonable allocation of tax liabilities and tax benefits among the Parent and the Borrower based on their respective separate company taxable income or loss (or other items on which the relevant tax liability is based); (iii) in connection with transactions documented in writing on terms and conditions that are arm's length in all material respects, and (iv) in the case of each of the foregoing, in compliance with corporate formalities, the Loan Documents and applicable law;
(ix) The Parent shall not guarantee or otherwise hold out its assets or credit as being available to satisfy obligations of any kind of the Borrower, other than as exemptions provided in the Loan Documents; and
(x) The Parent shall not cause the Borrower to file any voluntary petition under the Bankruptcy Code, and the Parent shall not file or cause any other person to file an involuntary petition against the Borrower under the United States Bankruptcy Code, or institute or cause any other person to institute any proceeding against the Borrower for the Borrower to be adjudicated as bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against the Borrower, or file a petition or answer or consent seeking reorganization or relief for the Borrower under any applicable federal or state law relating to bankruptcy, or consent to the filing of any such petition or the appointment of a receiver, rehabilitator, conservator, liquidator, assignee, trustee, sequestrator (or other similar official) of the Borrower or of any part of its property, or order the winding-up or liquidation of the Borrower's affairs, or take any action in furtherance of any of the foregoingby Rule 144.
Appears in 1 contract
Covenants of the Parent. The Parent covenants and agrees that, until the earlier of the Effective Time and the time that this Agreement is terminated in accordance with its terms, unless the Company otherwise consents in writing (to the extent that such consent is permitted by applicable Law), which consent will not be unreasonably withheld, conditioned or delayed, or as is otherwise disclosed in Section 4.2 of the Parent Disclosure Letter or expressly permitted or specifically contemplated by this Agreement or as is otherwise required by applicable Law:
(a) The Parent will not take any actions which would cause a breach the respective businesses of the provisions Parent and the Parent Subsidiaries will be conducted, their respective facilities will be maintained, and the Parent and Parent Subsidiaries will continue to operate their respective businesses only in, the ordinary course of Section 2 by the Borrower.business;
(b) Without limiting the foregoing, the Parent hereby covenants will use commercially reasonable efforts to maintain and agrees preserve intact its and the Parent Subsidiaries’ respective business organizations, assets, properties, rights, goodwill and business relationships and keep available the services of its and its subsidiaries’ respective officers and employees as follows a group;
(except as provided in c) the Loan Documents):Parent will not, and will not permit any of the Parent Subsidiaries to, directly or indirectly:
(i) The Parent shall maintain alter or amend its own bank and investment accounts and recordsarticles, and all charter, by-laws or other books of account and records separate and distinct from those constating documents in a manner adverse to Shareholders or that would reduce the value of the BorrowerConsideration Shares below the Share Consideration Value;
(ii) The Parentdeclare, as a stockholder set aside or pay any dividend on or make any distribution or payment or return of capital in respect of any of its securities other than in the Borrowerordinary course of business and consistent with past practice, shall not have any legalexcept for quarterly dividends payable on the Parent Preferred Stock or, equitable, or other interest whatsoever in the case of any of the assets of Parent’s wholly-owned subsidiaries, for dividends payable to the Borrower other than pursuant to Delaware lawParent;
(iii) The Parent shall not be entitled to receive redeem, purchase or otherwise acquire any distributions on account of any interest in its outstanding securities or securities convertible into or exchangeable or exercisable for its securities unless otherwise required by the Borrower terms of such securities and other than pursuant to Delaware lawin transactions between two or more Parent wholly-owned subsidiaries or between the Parent and a Parent wholly-owned subsidiary;
(iv) The Parent shall not commingle its funds or other assets with those amend the terms of the Borrower, and funds and Radiant Shares or any other assets securities of the Parent shall at all times be separately identified and segregatedor the Parent Subsidiaries;
(v) The Parent shall be, and at all times shall hold itself out to its creditors, governmental entities and adopt a plan of liquidation or resolution providing for the public as, a legal entity separate and distinct from the Borrower, and liquidation or dissolution of the Parent shall act and conduct business solely in its own name and through its own authorized officers and agents, shall correct any known misunderstanding regarding its status as a separate identity from the Borrower, and shall not identify itself or any of its affiliates as a division or part of the BorrowerParent Subsidiaries;
(vi) The Parent shall not maintainsplit, prepare divide, consolidate, combine or issue consolidated financial statements that include reclassify the Borrower unless such consolidated financial statements clearly indicate that they consolidate Radiant Shares or authorize the financial statements issuance of separate legal entitiesany other securities in respect of, in lieu of or in substitution for the Radiant Shares;
(vii) The issue, grant, sell or pledge or authorize or agree to issue, grant, sell or pledge any securities of the Parent shall observe all corporate and or the Parent Subsidiaries, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of the Parent or Parent Subsidiaries, other legal formalities and shall take all appropriate action necessary to maintain its existence as a corporation than (x) options issued under the laws Parent’s stock option plan in the ordinary course; (y) the issuance of common stock or convertible securities that, when combined with the issuance of the State Radiant Shares required to consummate the Arrangement (assuming such convertible securities are converted) would not increase the number of Delaware separate and distinct from the existence of each outstanding Radiant Shares by greater than 20% of the other Parties number of Radiant Shares outstanding on the date hereof; or any other entity(z) in connection with the Acquisition Financing or Alternative Financing;
(viii) There shall be no transfers make any material changes to any of assets among Parentits accounting policies, on the one handprinciples, and the Borrowermethods, on the other handpractices or procedures (including by adopting any material new accounting policies, other than (a) pursuant to the Loan Documents and (b) (i) capital contributions principles, methods, practices or corporate dividends; (ii) pursuant to a tax sharing agreement procedures), except as required by applicable Laws or arrangement which provides for a fair and reasonable allocation of tax liabilities and tax benefits among the Parent and the Borrower based on their respective separate company taxable income or loss (or other items on which the relevant tax liability is based); (iii) in connection with transactions documented in writing on terms and conditions that are arm's length in all material respects, and (iv) in the case of each of the foregoing, in compliance with corporate formalities, the Loan Documents and applicable lawunder U.S. GAAP;
(ix) The make any material change to its general practices and policies relating to the payment of accounts payable or the collection of accounts receivable;
(x) enter into, modify or terminate any agreement, contract, covenant, undertaking, or commitment with respect to any of the foregoing; or
(d) except as would not reduce the value of the Consideration Shares below the Share Consideration Value, or as would not delay the consummation of the Arrangement, the Parent shall will not, and will not guarantee permit any of the Parent Subsidiaries to, directly or otherwise hold out its indirectly:
(i) (A) acquire (by merger, amalgamation, consolidation, arrangement or acquisition of shares or other equity securities or interests or assets or credit as being available to satisfy obligations otherwise) any corporation, partnership, association or other business organization or division thereof or any property or asset, or make any investment by the purchase of securities, contribution of capital, property transfer, or purchase of any kind property or assets of the Borrowerany other person (in each case, other than as provided in the Loan Documentsordinary course of business) or (B) enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement with respect to such a transaction; or
(ii) Other than in connection with financing the Arrangement pursuant to the Commitment Letter, incur any indebtedness or issue any debt securities, or assume, guarantee, or make any loans or advances to any other persons;
(e) the Parent will promptly notify the Company in writing of any circumstance or development that, to the knowledge of the Parent, has had or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Parent; and
(xf) The the Parent shall not cause the Borrower to file any voluntary petition under the Bankruptcy Codewill not, and will not permit any of the Parent shall Subsidiaries to, take any action that would reasonably be expected to prevent or significantly impede or materially delay the completion of the Arrangement.
(g) the Parent will not, and will not file permit any of the Parent Subsidiaries to, directly or cause indirectly:
(i) except in the ordinary course of business, sell, pledge, lease, licence, dispose of or encumber any assets or properties (including the shares or other person to file an involuntary petition against the Borrower under the United States Bankruptcy Code, or institute or cause any other person to institute any proceeding against the Borrower for the Borrower to be adjudicated as bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against the Borrower, or file a petition or answer or consent seeking reorganization or relief for the Borrower under any applicable federal or state law relating to bankruptcy, or consent to the filing equity securities of any such petition or the appointment of a receiver, rehabilitator, conservator, liquidator, assignee, trustee, sequestrator (or other similar officialPurchaser Subsidiary) of the Borrower Purchaser or of any part Purchaser Subsidiary;
(ii) settle or compromise any action, claim or other Proceeding brought by any present, former or purported holder of its property, securities in connection with the transactions contemplated by this Agreement or order the winding-up or liquidation of the Borrower's affairs, or take any action in furtherance of Arrangement; or
(iii) authorize any of the foregoing, or enter into or modify any Contract to do any of the foregoing;
(h) the Parent will not, and will not permit any of the Parent Subsidiaries to, directly or indirectly terminate, fail to renew, cancel, waive, release, grant or transfer any rights of material value or modify or change in any material respect any existing Parent Material Contract except in the ordinary course of business, or as required by its terms; and
(i) the Parent will, and will cause each of the Parent Subsidiaries to:
(i) duly and timely file all Returns required to be filed by it on or after the date hereof and all such Returns will be true, complete and correct in all material respects;
(ii) timely withhold, collect, remit and pay all material Taxes which are to be withheld, collected, remitted or paid by it to the extent due and payable, unless such Taxes are disputed in good faith and the Company has taken adequate reserves therefor in accordance with U.S. GAAP;
(iii) not change in any material respect any of its methods of reporting income or deductions or accounting for income tax purposes from those employed in the preparation of their most recently filed Returns and financial statements except as may be required by applicable Laws; and
(iv) not make, change, revoke or rescind any material election relating to Taxes or make any material amendment with respect to any Return except as may be required by applicable Laws;
(j) the Parent will not, and will not permit any of the Parent Subsidiaries to, enter into or renew any Contract containing:
(i) any limitation or restriction on the ability of the Parent or any of the Parent Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Purchaser or any of its affiliates, to engage in any type of activity or business;
(ii) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of the Parent or any of the Parent Subsidiaries or, following consummation of the transactions contemplated hereby, all or any portion of the business of the Purchaser or any of its affiliates, is or would be conducted; or
(iii) any limit or restriction on the ability of the Parent or any of the Parent Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Purchaser or any of its affiliates, to solicit customers or employees.
Appears in 1 contract
Covenants of the Parent. and the Purchaser Regarding the Conduct of Business
(a) The Parent will not take any actions which would cause a breach and the Purchaser covenant and agree that, subject to Applicable Law, during the period from the date of this Agreement until the earlier of the provisions Effective Time and the time that this Agreement is terminated in accordance with its terms, except with the express prior written consent of Section 2 the Company or as required or permitted by this Agreement, the BorrowerParent and the Purchaser shall, and shall cause their respective Subsidiaries to, conduct their business in the Ordinary Course and in accordance with Applicable Law.
(b) Without limiting the foregoinggenerality of Section 7.4(a), subject to Applicable Law, the Parent hereby covenants and agrees the Purchaser covenant and agree that, during the period from the date of this Agreement until the earlier of the Effective Time and the time that this Agreement is terminated in accordance with its terms, except with the express prior written consent of the Company or as follows (required or permitted by this Agreement or as contemplated by the Parent Legacy Business Disposition or Parent Financing, the Parent and the Purchaser shall, and shall cause their respective Subsidiaries to, use their commercially reasonable efforts to maintain and preserve intact the current business organization, assets, properties and business of the Parent, the Purchaser and their respective Subsidiaries, maintain in effect all material Authorizations of the Parent, the Purchaser and their respective Subsidiaries, keep available the services of the present employees and agents of the Parent, the Purchaser and their respective Subsidiaries and maintain good relations with, and the goodwill of, employees, suppliers, customers, creditors and all other Persons having business relationships with the Parent, the Purchaser and their respective Subsidiaries and, except with the prior written consent of the Company and other than as provided required in connection with the Loan Documents):Parent Legacy Business Disposition and the Stock Split, the Parent and the Purchaser shall not, directly or indirectly, and shall cause their respective Subsidiaries not to:
(i) The make any change in its Organizational Documents, other than the Parent shall maintain its own bank and investment accounts and records, and all other books of account and records separate and distinct from those of the BorrowerCharter Amendment;
(ii) The Parentsplit, as a stockholder combine, consolidate or reclassify any shares of the Borrowerits capital stock, shall not have undertake any legalcapital reorganization or declare, equitable, set aside or pay any dividend or other interest whatsoever distribution (whether in cash, stock or property or any of the assets of the Borrower combination thereof), other than pursuant to Delaware lawthe Stock Split;
(iii) The redeem, repurchase, or otherwise acquire or offer to redeem, repurchase or otherwise acquire any shares of its capital stock or reduce the stated capital in respect of the Parent shall not be entitled to receive Common Stock or any distributions on account other shares of any interest in the Borrower Parent, the Purchaser and their respective Subsidiaries (other than pursuant in connection with the redemption or conversion into common stock of the Parent’s outstanding shares of preferred stock prior to Delaware lawthe Effective Time);
(iv) The Parent shall not commingle its funds issue, grant, deliver, sell, pledge or otherwise encumber, or authorize the issuance, grant, delivery, sale, pledge or other assets with those encumbrance of any shares of capital stock, securities, options, warrants or similar rights exercisable or exchangeable for or convertible into such capital stock, of the BorrowerParent, and funds and other assets the Purchaser or their respective Subsidiaries, except for the issuance of Parent Capital Stock (A) issuable upon the exercise of the currently outstanding Parent shall at all times be separately identified and segregatedOptions, (B) pursuant to outstanding Parent Warrants or (C) issuable in connection with the Parent Financing;
(v) The Parent shall beacquire (by merger, and at all times shall hold itself out consolidation, acquisition of stock or assets or otherwise), directly or indirectly, in one transaction or in a series of related transactions, assets, securities, properties, interests or businesses of any other Person (other than pursuant to its creditors, governmental entities and the public as, a legal entity separate and distinct from the Borrower, and the Parent shall act and conduct business solely in its own name and through its own authorized officers and agents, shall correct any known misunderstanding regarding its status as a separate identity from the Borrower, and shall not identify itself or any of its affiliates as a division or part of the Borrowertransactions contemplated by this Agreement);
(vi) The Parent shall not maintainreorganize, prepare amalgamate, combine or issue consolidated financial statements that include merge the Borrower unless such consolidated financial statements clearly indicate that they consolidate Parent, the financial statements of separate legal entitiesPurchaser or their respective Subsidiaries with any other Person (other than pursuant to the transactions contemplated by this Agreement);
(vii) The Parent shall observe all corporate and other legal formalities and shall take all appropriate action necessary to maintain its existence as adopt a corporation under plan of liquidation or resolutions providing for the laws liquidation or dissolution of the State of Delaware separate and distinct from Parent, the existence of each of the other Parties Purchaser or any other entitytheir respective Subsidiaries;
(viii) There shall be no transfers sell, pledge, lease, dispose of, surrender, lose the right to use, mortgage, license, encumber (other than Permitted Liens) or otherwise dispose of or transfer any assets among of the Parent, on the one handPurchaser or their respective Subsidiaries or any interest in any assets of the Parent, and the Borrower, on the other handPurchaser or their respective Subsidiaries, other than (a) pursuant to the Loan Documents and (b) (i) capital contributions or corporate dividends; (ii) pursuant to a tax sharing agreement or arrangement which provides for a fair and reasonable allocation of tax liabilities and tax benefits among the Parent and the Borrower based on their respective separate company taxable income or loss (or other items on which the relevant tax liability is based); (iii) in connection with transactions documented in writing on terms and conditions that are arm's length in all material respects, and (iv) in the case of each of the foregoing, in compliance with corporate formalities, the Loan Documents and applicable lawOrdinary Course;
(ix) The Parent shall not guarantee make any capital expenditure or otherwise hold out its assets or credit as being available to satisfy obligations of any kind of the Borrowersimilar commitments, other than as provided in the Loan Documents; andOrdinary Course;
(x) The Parent shall not cause the Borrower to file make any voluntary petition under the Bankruptcy Code, and the Parent shall not file loan or cause any other person to file an involuntary petition against the Borrower under the United States Bankruptcy Codeadvance to, or institute any capital contribution or cause any other person to institute any proceeding against the Borrower for the Borrower to be adjudicated as bankrupt or insolventinvestment in, or consent assume, guarantee or otherwise become liable with respect to the institution liabilities or obligations of, any Person;
(xi) prepay any long-term indebtedness before its scheduled maturity or increase, create, incur, assume or otherwise become liable, in one transaction or in a series of bankruptcy related transactions, with respect to any indebtedness for borrowed money or insolvency proceedings against guarantees thereof, other than in the BorrowerOrdinary Course; provided that any indebtedness created, incurred, refinanced, assumed or file a petition for which the Parent, the Purchaser or answer or consent seeking reorganization or relief for their respective Subsidiaries becomes liable in accordance with the Borrower under any applicable federal or state law relating to bankruptcyforegoing shall be prepayable at the Effective Time without premium, or consent to the filing of any such petition or the appointment of a receiver, rehabilitator, conservator, liquidator, assignee, trustee, sequestrator (penalty or other similar official) of the Borrower or of any part of its property, or order the winding-up or liquidation of the Borrower's affairs, or take any action in furtherance of any of the foregoing.incremental costs (including breakage costs);
Appears in 1 contract
Covenants of the Parent. (a) The Parent will not take any actions which would cause a breach of the provisions of Section 2 by the Borrower.
(b) Without limiting the foregoing, the Parent hereby covenants and agrees as follows (except as provided in the Loan Documents):
(i) The Parent shall maintain its own bank and investment accounts and records, and all other books of account and records separate and distinct from those of the Borrower;
(ii) The Parent, as a stockholder of the Borrower, shall not have any legal, equitable, or other interest whatsoever in any of the assets of the Borrower other than pursuant to Delaware law;
(iii) The Parent shall not be entitled to receive any distributions on account of any interest in the Borrower other than pursuant to Delaware law;
(iv) The Parent shall not commingle its funds or other assets with those of the Borrower, and funds and other assets of the Parent shall at all times be separately identified and segregated;
(v) The Parent shall be, and at all times shall hold itself out to its creditors, governmental entities and the public as, a legal entity separate and distinct from the Borrower, and the Parent shall act and conduct business solely in its own name and through its own authorized officers and agents, shall correct any known misunderstanding regarding its status as a separate identity from the Borrower, and shall not identify itself or any of its affiliates as a division or part of the Borrower;
(vi) The Parent shall not maintain, prepare or issue consolidated financial statements that include the Borrower unless such consolidated financial statements clearly indicate that they consolidate the financial statements of separate legal entities;
(vii) The Parent shall observe all corporate and other legal formalities and shall take all appropriate action necessary to maintain its existence as a corporation -4- 57 under the laws of the State of Delaware separate and distinct from the existence of each of the other Parties or any other entity;
(viii) There shall be no transfers of assets among Parent, on the one hand, and the Borrower, on the other hand, other than (a) pursuant to the Loan Documents and (b) (i) capital contributions or corporate dividends; (ii) pursuant to a tax sharing agreement or arrangement which provides for a fair and reasonable allocation of tax liabilities and tax benefits among the Parent and the Borrower based on their respective separate company taxable income or loss (or other items on which the relevant tax liability is based); (iii) in connection with transactions documented in writing on terms and conditions that are arm's length in all material respects, and (iv) in the case of each of the foregoing, in compliance with corporate formalities, the Loan Documents and applicable law;
(ix) The Parent shall not guarantee or otherwise hold out its assets or credit as being available to satisfy obligations of any kind of the Borrower, other than as provided in the Loan Documents; and
(x) The Parent shall not cause the Borrower to file any voluntary petition under the Bankruptcy Code, and the Parent shall not file or cause any other person to file an involuntary petition against the Borrower under the United States Bankruptcy Code, or institute or cause any other person to institute any proceeding against the Borrower for the Borrower to be adjudicated as bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against the Borrower, or file a petition or answer or consent seeking reorganization or relief for the Borrower under any applicable federal or state law relating to bankruptcy, or consent to the filing of any such petition or the appointment of a receiver, rehabilitator, conservator, liquidator, assignee, trustee, sequestrator (or other similar official) of the Borrower or of any part of its property, or order the winding-up or liquidation of the Borrower's affairs, or take any action in furtherance of any of the foregoing.
Appears in 1 contract
Covenants of the Parent. The Parent covenants and agrees that, until the earlier of the Effective Time and the time that this Agreement is terminated in accordance with its terms, unless the Company otherwise consents in writing (to the extent that such consent is permitted by applicable Law), which consent will not be unreasonably withheld, conditioned or delayed, or as is otherwise disclosed in Section 6.2 of the Parent Disclosure Letter or contemplated by the PPM (including, without limitation, in connection with the return of shares of capital stock and warrants to the Parent for cancellation such that the outstanding capital of the Parent as of the Effective Date (immediately following the closing of the Acquisition) will be as set forth in Section 5.6(e), or as is otherwise expressly permitted or specifically contemplated by this Agreement or as is otherwise required by applicable Law:
(a) The Parent will not take any actions which would cause a breach the respective businesses of the provisions Parent and the Parent Material Subsidiaries will be conducted only, their respective facilities will be maintained, and the Parent and Parent Material Subsidiaries will continue to operate their respective businesses only in, the ordinary course of Section 2 by business in an effort to preserve the Borrower.value thereof;
(b) Without limiting the foregoing, the Parent hereby covenants will use commercially reasonable efforts to maintain and agrees preserve intact its and the Parent Material Subsidiaries’ respective business organizations, assets, properties, rights, goodwill and business relationships and keep available the services of its and its subsidiaries’ respective officers and employees as follows a group;
(except as provided in c) the Loan Documents):Parent will not, and will not permit any of the Parent Material Subsidiaries to, directly or indirectly:
(i) The Parent shall maintain alter or amend its own bank and investment accounts and recordsarticles, and all charter, by-laws or other books of account and records separate and distinct from those of constating documents in a manner adverse to the BorrowerShareholders;
(ii) The Parentdeclare, as a stockholder of the Borrower, shall not have set aside or pay any legal, equitabledividend, or make any distribution or payment or return of capital in respect of any of its securities other interest whatsoever than in the ordinary course of business and consistent with past practice except, in the case of any of the assets of Parent’s wholly-owned subsidiaries, for dividends payable to the Borrower other than pursuant to Delaware lawParent;
(iii) The split, divide, consolidate, combine or reclassify the Parent shall not be entitled to receive any distributions on account of any interest in the Borrower other than pursuant to Delaware lawShares;
(iv) The Parent shall not commingle its funds or other assets with those of amend the Borrower, and funds and other assets terms of the Parent shall at all times be separately identified and segregatedShares or any other securities of the Parent except, in each case, as would not have an adverse effect on the Parent Shares or the holders thereof;
(v) The Parent shall be, and at all times shall hold itself out to its creditors, governmental entities and adopt a plan of liquidation or resolution providing for the public as, a legal entity separate and distinct from the Borrower, and liquidation or dissolution of the Parent shall act and conduct business solely in its own name and through its own authorized officers and agents, shall correct any known misunderstanding regarding its status as a separate identity from the Borrower, and shall not identify itself or any of its affiliates as a division or part of the Borrowersubsidiaries;
(vi) The Parent shall not maintainreorganize, prepare amalgamate or issue consolidated financial statements that include merge with any other person (other than any of the Borrower unless such consolidated financial statements clearly indicate that they consolidate the financial statements of separate legal entitiesParent’s direct or indirect wholly-owned subsidiaries);
(vii) The make any material changes to any of its accounting policies, principles, methods, practices or procedures (including by adopting any material new accounting policies, principles, methods, practices or procedures), except as disclosed in the Parent shall observe all corporate and other legal formalities and shall take all appropriate action necessary to maintain its existence Public Disclosure Record, as a corporation required by applicable Laws or under the laws of the State of Delaware separate and distinct from the existence of each of the other Parties or any other entityU.S. GAAP;
(viii) There shall be no transfers of assets among Parent, on the one hand, make any material change to its general practices and the Borrower, on the other hand, other than (a) pursuant policies relating to the Loan Documents and (b) (i) capital contributions payment of accounts payable or corporate dividendsthe collection of accounts receivable; (ii) pursuant to a tax sharing agreement or arrangement which provides for a fair and reasonable allocation of tax liabilities and tax benefits among the Parent and the Borrower based on their respective separate company taxable income or loss (or other items on which the relevant tax liability is based); (iii) in connection with transactions documented in writing on terms and conditions that are arm's length in all material respects, and (iv) in the case of each of the foregoing, in compliance with corporate formalities, the Loan Documents and applicable law;or
(ix) The enter into, modify or terminate any agreement, contract, covenant, undertaking, or commitment with respect to any of the foregoing;
(d) the Parent shall not guarantee or otherwise hold out its assets or credit as being available to satisfy obligations will promptly notify the Company in writing of any kind circumstance or development that, to the knowledge of the BorrowerParent, other than as provided has had or would reasonably be expected to have, individually or in the Loan Documentsaggregate, a Material Adverse Effect on the Parent;
(e) the Parent will not, and will not permit any of the Parent Material Subsidiaries to, take any action that would (i) reasonably be expected to prevent or significantly impede or materially delay the completion of the Acquisition or (ii) render, or reasonably be expected to render, any representation or warranty made by the Purchaser, Callco or the Parent in this Agreement untrue or inaccurate in any material respect (disregarding for this purpose all materiality or Material Adverse Effect qualifications contained therein); and
(xf) The Parent shall not cause the Borrower to file any voluntary petition under the Bankruptcy Code, and the Parent shall not file will pay or cause any other person to file an involuntary petition against the Borrower under the United States Bankruptcy Code, or institute or cause any other person to institute any proceeding against the Borrower for the Borrower to be adjudicated as bankrupt or insolvent, or consent satisfied all Transaction Expenses prior to the institution of bankruptcy or insolvency proceedings against the Borrower, or file a petition or answer or consent seeking reorganization or relief for the Borrower under any applicable federal or state law relating to bankruptcy, or consent to the filing of any such petition or the appointment of a receiver, rehabilitator, conservator, liquidator, assignee, trustee, sequestrator (or other similar official) of the Borrower or of any part of its property, or order the winding-up or liquidation of the Borrower's affairs, or take any action in furtherance of any of the foregoingEffective Date.
Appears in 1 contract
Covenants of the Parent. regarding the Performance of Obligations
(a1) The Subject to the terms and conditions of this Agreement, the Parent will not take any actions which would shall, and shall cause a breach its subsidiaries, including the Purchaser, to perform all obligations required to be performed by Parent or the Purchaser under this Agreement, co-operate with the Company in connection therewith, and do all such other acts and things as may be necessary or desirable in order to consummate and make effective, as soon as reasonably practicable, the transactions contemplated by this Agreement and, without limiting the generality of the provisions foregoing or the obligations in Section 2.10 of Section 2 this Agreement, the Parent shall ensure that the Purchaser will, by the BorrowerEffective Date, have sufficient funds to pay the aggregate Consideration for all Shares and fund the payment of the aggregate amount payable in respect of In-The-Money Options and DSUs pursuant to the Arrangement in accordance with the terms of this Agreement, and to make all other payments required to be made by the Parent or the Purchaser in connection with the transactions contemplated by this Agreement and to pay all related fees and expenses required to be paid by the Parent or Purchaser in accordance with the terms hereof.
(b2) Without limiting the foregoinggenerality of this Section 5.4, each of the Parent and the Purchaser shall and where appropriate shall cause their respective subsidiaries to use their reasonable best efforts to consummate any such financing arrangements as may be required (the "Financings") in order to ensure compliance with Section 2.10. The Parent and the Purchaser acknowledge and agree that obtaining the Financings (including, for greater certainty, the Debt Financing) is not a condition to any of their respective obligations hereunder, regardless of the reasons why any Financing is not obtained or whether such reasons are within or beyond the control of either the Purchaser or the Parent. For the avoidance of doubt, if any Financing referred to in this Section 5.4 is not obtained, the Purchaser and the Parent hereby covenants shall continue to be obligated to consummate the transactions contemplated by this Agreement, subject to and agrees on the terms contemplated by this Agreement. Any failure to consummate the Arrangement as follows a result of the failure by either the Parent or the Purchaser to obtain the Financings referred to in this Section 5.4 shall constitute a breach by the Purchaser and the Parent hereunder.
(except as provided 3) The Parent shall, and shall cause its subsidiaries, including the Purchaser, to use reasonable best efforts to consummate and obtain the Debt Financing on the terms and conditions described in the Loan Documents):
Commitment Letter, including using reasonable best efforts to (i) The negotiate and enter into definitive agreements with respect to the Commitment Letter on the terms and conditions contemplated by the Commitment Letter, which definitive agreements will not materially expand upon the conditions to the receipt of the Debt Financing as set forth in the Commitment Letter, or amend or modify the terms of the Commitment Letter in a manner that would reasonably be expected to impair the ability of the Parent shall maintain its own bank and investment accounts and recordsor the Purchaser, as applicable, to consummate the Debt Financing, and all other books of account and records separate and distinct from those of the Borrower;
(ii) satisfy on a timely basis all conditions contained in the Commitment Letter that are within its control. The ParentParent shall, as a stockholder of and shall cause its subsidiaries, including the BorrowerPurchaser, shall not have to refrain from taking, directly or indirectly, any legal, equitable, or other interest whatsoever actions that could reasonably be expected to result in any of the assets of the Borrower other than pursuant to Delaware law;
(iii) The Parent shall not be entitled to receive any distributions on account of any interest conditions contained in the Borrower other than pursuant Commitment Letter or in any definitive agreement related to Delaware law;
(iv) The Parent shall not commingle its funds or other assets with those of the BorrowerDebt Financing, and funds and other assets of in each case, that are within the Parent shall at all times be separately identified and segregated;
(v) The Parent shall be, and at all times shall hold itself out to its creditors, governmental entities and the public as, a legal entity separate and distinct from the Borrower, and the Parent shall act and conduct business solely in its own name and through its own authorized officers and agents, shall correct any known misunderstanding regarding its status as a separate identity from the Borrower, and shall not identify itself Parent's or any such subsidiary's control, not being satisfied. Each of its affiliates as a division or part of the Borrower;
(vi) The Parent shall not maintain, prepare or issue consolidated financial statements that include the Borrower unless such consolidated financial statements clearly indicate that they consolidate the financial statements of separate legal entities;
(vii) The Parent shall observe all corporate and other legal formalities and shall take all appropriate action necessary to maintain its existence as a corporation under the laws of the State of Delaware separate and distinct from the existence of each of the other Parties or any other entity;
(viii) There shall be no transfers of assets among Parent, on the one hand, and the Borrower, on the other hand, other than (a) pursuant to the Loan Documents and (b) (i) capital contributions or corporate dividends; (ii) pursuant to a tax sharing agreement or arrangement which provides for a fair and reasonable allocation of tax liabilities and tax benefits among the Parent and the Borrower based Purchaser shall, in accordance with the confidentiality provisions of the Commitment Letter, deliver to the Company a copy of any definitive agreements and related documents promptly after execution thereof and upon the Company's reasonable request, provide the Company with updates on their respective separate company taxable income its discussions and dealings with the Lenders, provided that the Company agrees to abide by the confidentiality provisions therein.
(4) The Purchaser and the Parent shall, in accordance with the confidentiality provisions of the Commitment Letter, give the Company prompt notice of any change or loss (development with respect to the Debt Financing that would reasonably be expected to impair the ability of the Parent or other items on which the relevant tax liability is based); (iii) in connection with transactions documented in writing on terms and conditions that are arm's length in all material respectsPurchaser, and (iv) in as applicable, to consummate the case of each Debt Financing. Without limiting the generality of the foregoing, in compliance with corporate formalities, the Loan Documents and applicable law;
(ix) The Parent shall not guarantee or otherwise hold out its assets or credit as being available to satisfy obligations of any kind of the Borrower, other than as provided in the Loan Documents; and
(x) The Parent shall not cause the Borrower to file any voluntary petition under the Bankruptcy Code, Purchaser and the Parent agree to notify the Company promptly (and in any event not later than twenty-four hours after an occurrence), if at any time prior to the Effective Time: (a) the Commitment Letter shall not file expire or cause be terminated for any reason; (b) any event occurs that, with or without notice, lapse of time or both, would individually or in the aggregate, constitute a default or breach on the part of the Parent or the Purchaser under any term or condition of the Commitment Letter or any other person definitive agreement or documentation referred to file an involuntary petition against in this Section 5.4 or if the Borrower under Parent or the United States Bankruptcy CodePurchaser has any reason to believe that either the Parent or the Purchaser shall be unable to satisfy, on a timely basis, any term or institute or cause any other person to institute any proceeding against condition of the Borrower for the Borrower Debt Financing to be adjudicated satisfied by it, that in each case would reasonably be expected to impair the ability of the Parent or the Purchaser, as bankrupt applicable, to consummate the Debt Financing; or insolvent, or consent (c) the Financing Source that is a party to the institution of bankruptcy or insolvency proceedings against Commitment Letter advises the Borrower, or file a petition or answer or consent seeking reorganization or relief for the Borrower under any applicable federal or state law relating to bankruptcy, or consent to the filing of any such petition Purchaser or the appointment of a receiverParent, rehabilitatorwhether orally or in writing, conservator, liquidator, assignee, trustee, sequestrator (that such source either no longer intends to provide or other similar official) of underwrite the Borrower or of any part of its property, or order Debt Financing on the winding-up or liquidation of terms set forth in the Borrower's affairs, or take any action in furtherance of any of the foregoingCommitment Letter.
Appears in 1 contract
Samples: Arrangement Agreement (Semtech Corp)
Covenants of the Parent. The Parent covenants and agrees that, until the earlier of the Effective Time and the time that this Agreement is terminated in accordance with its terms, unless the Company otherwise consents in writing (to the extent that such consent is permitted by applicable Law), which consent will not be unreasonably withheld, conditioned or delayed, or as is otherwise disclosed in Section 4.2 of the Parent Disclosure Letter or expressly permitted or specifically contemplated by this Agreement or as is otherwise required by applicable Law:
(a) The Parent will not take any actions which would cause a breach the respective businesses of the provisions Parent and the Parent Material Subsidiaries will be conducted only, their respective facilities will be maintained, and the Parent and Parent Material Subsidiaries will continue to operate their respective businesses only in, the ordinary course of Section 2 by business in an effort to preserve the Borrower.value thereof;
(b) Without limiting the foregoing, the Parent hereby covenants will use commercially reasonable efforts to maintain and agrees preserve intact its and the Parent Material Subsidiaries’ respective business organizations, assets, properties, rights, goodwill and business relationships and keep available the services of its and its subsidiaries’ respective officers and employees as follows a group;
(except as provided in c) the Loan Documents):Parent will not, and will not permit any of the Parent Material Subsidiaries to, directly or indirectly:
(i) The Parent shall maintain alter or amend its own bank and investment accounts and recordsarticles, and all charter, by-laws or other books of account and records separate and distinct from those of constating documents in a manner adverse to the BorrowerShareholders;
(ii) The Parentdeclare, as a stockholder set aside or pay any dividend on or make any distribution or payment or return of capital in respect of any of its securities other than in the Borrowerordinary course of business and consistent with past practice except, shall not have any legal, equitable, or other interest whatsoever in the case of any of the assets of Parent’s wholly-owned subsidiaries, for dividends payable to the Borrower other than pursuant to Delaware lawParent;
(iii) The Parent shall not be entitled to receive any distributions on account of any interest in split, divide, consolidate, combine or reclassify the Borrower other than pursuant to Delaware lawMolycorp Shares;
(iv) The Parent shall not commingle its funds or other assets with those amend the terms of the Borrower, and funds and Molycorp Shares or any other assets securities of the Parent shall at all times be separately identified and segregatedexcept, in each case, as would not have an adverse effect on the Molycorp Shares or the holders thereof;
(v) The Parent shall be, and at all times shall hold itself out to its creditors, governmental entities and adopt a plan of liquidation or resolution providing for the public as, a legal entity separate and distinct from the Borrower, and liquidation or dissolution of the Parent shall act and conduct business solely in its own name and through its own authorized officers and agents, shall correct any known misunderstanding regarding its status as a separate identity from the Borrower, and shall not identify itself or any of its affiliates as a division or part of the Borrowersubsidiaries;
(vi) The Parent shall not maintainreorganize, prepare amalgamate or issue consolidated financial statements that include merge with any other person (other than any of the Borrower unless such consolidated financial statements clearly indicate that they consolidate the financial statements of separate legal entitiesParent’s direct or indirect wholly-owned subsidiaries);
(vii) The make any material changes to any of its accounting policies, principles, methods, practices or procedures (including by adopting any material new accounting policies, principles, methods, practices or procedures), except as disclosed in the Parent shall observe all corporate and other legal formalities and shall take all appropriate action necessary to maintain its existence Public Disclosure Record, as a corporation required by applicable Laws or under the laws of the State of Delaware separate and distinct from the existence of each of the other Parties or any other entityU.S. GAAP;
(viii) There shall be no transfers of assets among Parent, on the one hand, make any material change to its general practices and the Borrower, on the other hand, other than (a) pursuant policies relating to the Loan Documents and (b) (i) capital contributions payment of accounts payable or corporate dividendsthe collection of accounts receivable; (ii) pursuant to a tax sharing agreement or arrangement which provides for a fair and reasonable allocation of tax liabilities and tax benefits among the Parent and the Borrower based on their respective separate company taxable income or loss (or other items on which the relevant tax liability is based); (iii) in connection with transactions documented in writing on terms and conditions that are arm's length in all material respects, and (iv) in the case of each of the foregoing, in compliance with corporate formalities, the Loan Documents and applicable law;or
(ix) The Parent shall not guarantee enter into, modify or otherwise hold out its assets or credit as being available to satisfy obligations of terminate any kind of the Borroweragreement, other than as provided in the Loan Documents; and
(x) The Parent shall not cause the Borrower to file any voluntary petition under the Bankruptcy Codecontract, and the Parent shall not file or cause any other person to file an involuntary petition against the Borrower under the United States Bankruptcy Codecovenant, undertaking, or institute or cause any other person commitment with respect to institute any proceeding against the Borrower for the Borrower to be adjudicated as bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against the Borrower, or file a petition or answer or consent seeking reorganization or relief for the Borrower under any applicable federal or state law relating to bankruptcy, or consent to the filing of any such petition or the appointment of a receiver, rehabilitator, conservator, liquidator, assignee, trustee, sequestrator (or other similar official) of the Borrower or of any part of its property, or order the winding-up or liquidation of the Borrower's affairs, or take any action in furtherance of any of the foregoing;
(d) the Parent will promptly notify the Company in writing of any circumstance or development that, to the knowledge of the Parent, has had or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Parent;
(e) the Parent will not, and will not permit any of the Parent Material Subsidiaries to, take any action that would (i) reasonably be expected to prevent or significantly impede or materially delay the completion of the Arrangement or (ii) render, or reasonably be expected to render, any representation or warranty made by the Purchaser or the Parent in this Agreement untrue or inaccurate in any material respect (disregarding for this purpose all materiality or Material Adverse Effect qualifications contained therein).
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