Investor Covenants. Investor covenants that neither it nor any person acting on its behalf or pursuant to any understanding with it will engage in any transactions in the securities of the Company (including short sales) prior to the time that the transactions contemplated by this Subscription Agreement are publicly disclosed.
Investor Covenants. The Investor hereby covenants and agrees to ------------------ use its best efforts to cooperate with the Company in all reasonable respects in connection with the preparation and filing of the Registration Statement in which such Registrable Securities are included or requested to be included.
Investor Covenants. Until the earlier of the Closing or the Option Termination Date, unless Brookdale otherwise consents in writing, the Investor:
(a) Shall preserve and maintain its legal existence, rights, franchises and privileges in the State of Ohio, and shall qualify and remain qualified in each jurisdiction in which such qualification is necessary or desirable in view of its business and operations or the ownership of its property.
(b) Shall at all times observe and comply with the provisions of Articles Fifth, Sixth and Tenth of its Articles of Incorporation as in effect on the date hereof.
(c) Shall not amend the Company's Articles of Organization or the Operating Agreement and shall at all times observe and comply with the provisions thereof.
(d) Shall not cause or permit the dissolution of the Company.
(e) Shall not permit the issuance of any member's interests (or any other interests) in the Company in addition to the Membership Interests.
(f) Shall continue to own the Membership Interests (which shall continue to constitute 100% of the membership interests in the Company), free of any liens, claims or encumbrances, other than the Subordinate Lender Security Interest and the security interest created by this Agreement.
(g) Shall not file a voluntary petition in bankruptcy and shall use its best efforts to contest any involuntary petition filed against it.
(h) Shall not permit or accept any distributions by the Company, other than distributions to be applied to the payment of income taxes and funded by advances to the Company made by the Subordinate Lender pursuant to subsection 2.6(a) of the Subordinate Loan Agreement.
(i) Shall give Brookdale at least thirty (30) days' prior written notice of any change in its place of business.
(j) Shall not take any actions that might adversely affect Brookdale's rights under, or be inconsistent with the terms of, this Agreement.
Investor Covenants. For a period of six (6) months from the date hereof, Investor will not directly or through an affiliate engage in any open market Short Sales (as defined below) of the Common Stock; provided; however, that unless and until Company has affirmatively demonstrated by the use of specific evidence that Investor is engaging in open market Short Sales, Investor shall be assumed to be in compliance with the provisions of this Section and Company shall remain fully obligated to fulfill all of its obligations under the Transaction Documents; and provided, further, that (i) Company shall under no circumstances be entitled to request or demand that Investor either (A) provide trading or other records of Investor or of any party or (B) affirmatively demonstrate that Investor or any other party has not engaged in any such Short Sales in breach of these provisions as a condition to Company’s fulfillment of its obligations under any of the Transaction Documents, (ii) Company shall not assert Investor’s or any other party’s failure to demonstrate such absence of such Short Sales or provide any trading or other records of Investor or any other party as all or part of a defense to any breach of Company’s obligations under any of the Transaction Documents, and (iii) Company shall have no setoff right with respect to any such Short Sales. As used herein, “Short Sale” has the meaning provided in Rule 3b-3 under the 1934 Act.
Investor Covenants. Each Investor hereby covenants and agrees that:
(a) it will not sell any Registrable Securities under any registration statement covering Registrable Securities until it has received notice from EchoStar that such registration statement and any post-effective amendments thereto have become effective; provided that EchoStar shall notify each Investor promptly when such registration statement and any post-effective amendments thereto have become effective; and
(b) it will comply with the prospectus delivery requirements of the Securities Act as applicable to it in connection with the sales of Registrable Securities pursuant to a registration statement.
Investor Covenants. The representations and warranties of the Company set forth in Section 2 hereof shall be reaffirmed and in full force and effect as of the date of the Closing, and the representations and warranties of each applicable Investor in Section 3 hereof shall be reaffirmed and in full force and effect as of the date of the Closing. At the Closing, the Company shall deliver to each Investor the original Note that such Investor purchases at the Closing upon confirmation of receipt of payment of the Purchase Price therefor, which Purchase Price shall equal the principal amount of the Note purchased, and shall be paid in cash by wire transfer to the Company, pursuant to the instructions attached hereto as Exhibit “B”. Any Notes sold pursuant to this Section 1 shall be deemed to be “Notes” for all purposes under this Agreement.
Investor Covenants. In connection with registration of the Shares, Issuer shall have the following obligations:
8.1 It shall be a condition precedent to the obligations of Issuer to complete the registration or qualification pursuant to Section 7 of this Agreement that Investor shall timely furnish to Issuer in writing such information regarding itself and the distribution proposed by Investor as shall be reasonably requested by Issuer and as shall be required to effect such registration or qualification and shall timely execute such documents in connection with such registration as Issuer may reasonably request.
8.2 Investor by such Investor’s acceptance of the Shares agrees to cooperate with Issuer as reasonably requested by Issuer in connection with the preparation and filing of the Registration Statement and the qualification of the resale of the shares under applicable Blue Sky laws hereunder.
8.3 Investor shall not resell any Shares pursuant to the Registration Statement upon receiving notice from Issuer pursuant to Section 7.4 hereof that the prospectus included in the Registration Statement or a final prospectus with respect thereto, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing, until Issuer has provided Investor with an amendment or supplement to the prospectus in order to cause such prospectus not to include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing.
Investor Covenants. The Investor hereby covenants and agrees as follows for the period from the date hereof through and including the Termination Date:
(a) The Investor will not directly or indirectly enter into, cause, allow or accept any voting trust or other trust agreement, stock loan, security interest, encumbrance, or other contract, promise, arrangement or commitment which may restrict, control or otherwise affect the voting of the Covered Shares during the Term of this Agreement.
(b) The Investor will not take any action that would make any representation or warranty of such Investor untrue or incorrect, or directly or indirectly have the effect of preventing or disabling such Investor from performing its obligations under this Agreement.
(c) The Investor will not at any time directly or indirectly take, participate in, authorize, allow, accept or support any action or opposition to action that may conflict with any shareholder vote or consent, or any action or matter approved by any shareholder vote or consent, pursuant to this Agreement or to which this Agreement relates.
(d) The Investor will not sell (constructively or otherwise), transfer, pledge, hypothecate, grant, encumber, assign or otherwise dispose of (collectively, “Transfer”), or enter into any contract, option, agreement or other arrangement or understanding with respect to the Transfer of any of the Equity Securities or beneficial ownership or voting power thereof or therein (including by operation of law), unless the transferee or purchaser enters into this Voting Agreement. Any Transfer in violation of this provision shall be void. The Investor authorizes the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of the Equity Securities and that this Agreement places limits on the voting of the Equity Securities.
(e) For purposes of this Agreement, the “Covered Shares” shall include all shares of Common Stock and Series A Preferred owned of record or beneficially by the Investor, or as to which the Investor otherwise has the power to vote or direct the voting of or has a voting interest in, as of the date of this Agreement or as to which the Investor acquires such ownership or beneficial or other interest during the term of this Agreement.
Investor Covenants. Each Investor severally covenants to the Company that in no event will it dispose of any of the Note or the Warrants or the Warrant Shares (other than in conjunction with an effective registration statement for such securities under the Act or other than to an affiliate of either Investor) unless and until such Investor shall have notified the Company of the proposed disposition and shall have furnished the Company with an opinion of counsel reasonably satisfactory in form and substance to the Company to the effect that (x) such disposition will not require registration under the Act and (y) appropriate action necessary for compliance with the Act, and any other applicable securities laws of any jurisdiction has been taken.
Investor Covenants. Investor covenants and agrees that without terminating this Agreement:
(A) Neither the Merger Agreement nor this Agreement will be amended, and no condition in the Merger Agreement will be waived, so as to: (i) reduce the value of the consideration payable in the Merger, (ii) materially adversely affect the timing of the closing of the Merger, (iii) reduce the Cash Merger Price, or (iv) otherwise adversely affect the interests of the Stockholders.
(B) Upon its formation, Newco will execute and deliver a joinder to the Merger Agreement, rendering it a party thereto, and obligating it to perform thereunder.
