Representations and Agreements (a) The Advisor represents to and agrees with the Company that:
(1) the terms of this Agreement do not violate any obligation by which the Advisor is bound, whether arising by contract, operation of law or regulation, or otherwise;
(2) this Agreement has been duly authorized, executed and delivered by the Advisor and constitutes a legal, valid and binding agreement of the Advisor enforceable in accordance with its terms, and the Advisor has full power and authority to enter into this Agreement and to perform its duties hereunder;
(3) it shall maintain at all times during the term of this Agreement competent personnel to perform the duties required of it hereunder, and the Advisor’s expenses in connection therewith shall be borne by the Advisor; and
(4) the representations and warranties contained herein shall continue and remain in effect during the term of this Agreement, and, if at any time during the term of this Agreement any event occurred which would make any of these foregoing representations untrue, incomplete or inaccurate in any respect, the Advisor will promptly notify the Company of such event.
(b) The Company represents to and agrees with the Advisor that:
(1) the terms of this Agreement do not violate any obligation by which the Company is bound, whether arising by contract, operation of law or regulation, or otherwise;
(2) the Company is the sole owner of the assets covered hereby and such assets are free and clear of any and all liens and restrictions on their transfer or sale, except for applicable transfer restrictions under various securities laws;
(3) this Agreement has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding agreement of the Company enforceable in accordance with its terms, and the Company has full power and authority to enter into this Agreement and to perform its duties hereunder;
(4) the Investment Portfolios are not subject to the U.S. Employee Retirement Income Security Act of 1974, as amended (“ERISA”);
(5) it is not a “Benefit Plan Investor,” as defined under ERISA;
(6) the Company will deliver or cause to be delivered to the Advisor in writing, all the information, documents and instruments that the Advisor may reasonably request in order to perform its duties hereunder; and
(7) the representations and warranties contained herein shall continue and remain in effect during the term of this Agreement, and, if at any time during the term of this Agreement any event occurred which would make any of these foregoing representations untrue, incomplete or inaccurate in any respect, the Company will promptly notify the Advisor of such event.
Survival of Covenants and Agreements The covenants and agreements of the parties to be performed after the Effective Time contained in this Agreement shall survive the Effective Time.
Covenants and Continuing Agreements So long as any amount owing in respect of the Obligations (whether or not due) shall remain unpaid, Borrower covenants that, unless otherwise consented to by Lender in writing, it shall:
Survival of Representations and Agreements All representations and warranties, covenants and agreements of the Company and the Underwriters contained in this Agreement or in certificates of officers of the Company submitted pursuant hereto, including the agreements contained in Sections 5, 10, 14 and 15, the indemnity agreements contained in Section 7 and the contribution agreements contained in Section 8 hereof, shall remain operative and in full force and effect regardless of any investigation made by or on behalf of any Underwriter or any controlling Person thereof or by or on behalf of the Company, any of its officers and directors or any controlling Person thereof, and shall survive delivery of and payment for the Securities to and by the Underwriters. The representations contained in Section 2 hereof and the covenants and agreements contained in Sections 5, 7, 8, this Section 10 and Sections 12, 13, 14 and 15 hereof shall survive any termination of this Agreement, including termination pursuant to Section 9 or 11 hereof. The representations and covenants contained in Sections 2, 3 and 4 hereof shall survive termination of this Agreement if any Securities are purchased pursuant to this Agreement.
Performance of Covenants and Agreements The Buyer and Buyer Sub each shall have performed and complied in all material respects with all covenants and agreements contained in this Agreement required to be performed or complied with by it on or prior to the Closing.
Certain Covenants and Agreements 5.1 Conduct of Business by Target. From the date hereof to the Effective Date, Target will, except as required in connection with the Transaction and the other transactions contemplated by this Agreement and except as otherwise disclosed on the schedules hereto or consented to in writing by the Acquiring Company:
(a) carry on its business in the ordinary and regular course in substantially the same manner as heretofore conducted and not engage in any new line of business, or enter into any material agreement, transaction or activity or make any material commitment except those in the ordinary and regular course of business and not otherwise prohibited under this Section 5.1 with the exceptions of the planned product launch and the continuing bridge financing which will result in the issuance of additional Target Notes and underlying Target Note Warrants;
(b) neither change nor amend its Articles of Incorporation or Bylaws;
(c) not issue or sell shares of capital stock of Target or issue, sell or grant options, warrants or rights to purchase or subscribe to, or enter into any arrangement or contract with respect to the issuance or sale of any of the capital stock of Target or rights or obligations convertible into or exchangeable for any shares of the capital stock of Target or make any changes (by split-up, combination, reorganization or otherwise) in the capital structure of Target;
(d) not declare, pay or set aside for payment any dividend or other distribution in respect of the capital stock or other equity securities of Target and not redeem, purchase or otherwise acquire any shares of the capital stock or other securities of Target or rights or obligations convertible into or exchangeable for any shares of the capital stock or other securities of Target or obligations convertible into such, or any options, warrants or other rights to purchase or subscribe to any of the foregoing;
(e) not acquire or enter into any agreement to acquire, by merger, consolidation or purchase of stock or assets, any business or entity;
(f) use its best efforts to preserve intact the corporate existence, goodwill, and business organization of Target, to keep the officers and employees of Target available to Target and to preserve the relationships of Target with suppliers, customers and others having business relations with Target, and preserve, maintain and enforce all of Target's material licenses, permits, and similar rights, except for such instances which would not have a Target Material Adverse Effect;
(g) Not (i) enter into, modify or extend in any manner the terms of any employment, severance or similar agreements with officers and directors, (ii) grant any increase in the compensation of officers or directors, whether now or hereafter payable or (iii) grant any increase in the compensation of any other employees (it being understood by the parties hereto that for the purposes of (ii) and (iii) above increases in compensation shall include any increase pursuant to any option, bonus, stock purchase, pension, profit-sharing, deferred compensation, retirement or other plan, arrangement, contract or commitment);
(h) except in instances which would not have a Target Material Adverse Effect, perform all of its obligations under all Material Contracts (except those being contested in good faith) and not enter into, assume or amend any contract or commitment that would be a Material Contract other than contracts to provide services entered into in the ordinary course of business;
(i) except in instances which would not have a Target Material Adverse Effect, prepare and file all federal, state, local and foreign returns for taxes and other tax reports, filings and amendments thereto required to be filed by it, and allow the Acquiring Company to review all such returns, reports, filings and amendments at Target's offices prior to the filing thereof, which review shall not interfere with the timely filing of such returns; and
(j) Not borrow any funds under existing lines of credit or otherwise except as the Target deems reasonably necessary for the ordinary operation of Target's business, including the issuance of additional Target Notes and Target Note Warrants pursuant to the continuing bridge financing. In connection with the continued operation of the business of Target between the date of this Agreement and the Effective Date, Target shall confer in good faith and on a regular and frequent basis with one or more representatives of the Acquiring Company designated in writing to report operational matters of materiality and the general status of ongoing operations. In addition, during regular business hours, Target will allow employees and agents of the Acquiring Company to be present at Target's business locations to observe the business and operations of Target. Target acknowledges that the Acquiring Company does not and will not waive any rights it may have under this Agreement as a result of such consultations nor shall the Acquiring Company (or either of them) be responsible for any decisions made by Target's officers and directors with respect to matters which are the subject of such consultation.
Covenants and Agreements as Independent Agreements Each of the covenants and agreements that is set forth in this Agreement shall be construed as a covenant and agreement independent of any other provision of this Agreement. The existence of any claim or cause of action of the Participant against the Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by the Company of the covenants and agreements that are set forth in this Agreement.
Representations and Agreements to Survive Delivery The indemnity and contribution agreements contained in Section 9 of this Agreement and all representations and warranties of the Company herein or in certificates delivered pursuant hereto shall survive, as of their respective dates, regardless of (i) any investigation made by or on behalf of Cowen, any controlling persons, or the Company (or any of their respective officers, directors or controlling persons), (ii) delivery and acceptance of the Placement Shares and payment therefor or (iii) any termination of this Agreement.
Special Covenants and Agreements SECTION 5.1. COMPANY TO MAINTAIN ITS CORPORATE EXISTENCE; CONDITIONS UNDER WHICH EXCEPTIONS PERMITTED. The Company agrees that during the term of this Agreement, it will maintain its corporate existence and its good standing in the State, will not dissolve or otherwise dispose of all or substantially all of its assets and will not consolidate with or merge into another corporation unless the acquirer of its assets or the corporation with which it shall consolidate or into which it shall merge shall (i) be a corporation organized under the laws of one of the states of the United States of America, (ii) be qualified to do business in the State, and (iii) assume in writing all of the obligations of the Company under this Agreement and the Tax Agreement. Any transfer of all or substantially all of the Company's generation assets shall not be deemed to constitute a "disposition of all or substantially all of the Company's assets" within the meaning of the preceding paragraph. Any such transfer of the Company's generation assets shall not relieve the Company of any of its obligations under this Agreement. The Company hereby agrees that so long as any of the Bonds are insured by a Bond Insurance Policy issued by the Bond Insurer and the Bond Insurer shall not have failed to comply with its payment obligations under such Policy, in the event of a Reorganization, unless otherwise consented to by the Bond Insurer, the obligations of the Company under, and in respect of, the Bonds, the G&R Notes, the G&R Indenture and the Agreement shall be assumed by, and shall become direct and primary obligations of, a Regulated Utility Company such that at all times the obligor under this Agreement and the obligor on the G&R Notes is a Regulated Utility Company. The Company shall deliver to the Bond Insurer a certificate of the president, any vice president or the treasurer and an opinion of counsel reasonably acceptable to the Bond Insurer stating in each case that such Reorganization complies with the provisions of this paragraph. The Company need not comply with any of the provisions of this Section 5.1 if, at the time of such merger or consolidation, the Bonds will be defeased as provided in Article VIII of the Indenture. The Company need not comply with the provisions of the second paragraph of this Section 5.1 if the Bonds are redeemed as provided in Section 3.01(B)(3) of the Indenture or if the Bond Insurance Policy is terminated as described in Section 3.06 of the Indenture in connection with a purchase of the Bonds by the Company in lieu of their redemption.
Acknowledgements and Agreements You agree, accept and acknowledge the following:
(a) THE RSUS AND THIS AGREEMENT DO NOT CREATE AN EXPRESS OR IMPLIED PROMISE OF CONTINUED EMPLOYMENT FOR ANY PERIOD, AND WILL NOT INTERFERE IN ANY WAY WITH YOUR RIGHT OR THE RIGHT OF THE COMPANY OR THE EMPLOYER TO TERMINATE YOUR EMPLOYMENT AT ANY TIME, WITH OR WITHOUT CAUSE.
(b) The delivery of the Plan, this Agreement, the Plan’s prospectus and any reports of the Company provided generally to the Company’s shareholders, may be made by electronic delivery. Such means of electronic delivery may include but do not necessarily include the delivery of a link to a Company intranet or the Internet site of a third party involved in administering the Plan, the delivery of the document via e-mail or such other means of electronic delivery specified by the Company. By electronically accepting this Agreement, you agree to the following: “This electronic contract contains my electronic signature, which I have executed with the intent to sign this Agreement.”
(c) All decisions or interpretations of the Committee or the Company regarding the Plan, this Agreement and the RSUs shall be binding, conclusive and final on you and all other interested persons.
(d) The Plan is established voluntarily by the Company, it is discretionary in nature, and may be modified, amended, suspended or terminated by the Company at any time, to the extent permitted by the Plan.
(e) The grant of RSUs is exceptional, voluntary and occasional and does not create any contractual or other right to receive future grants of RSUs, or benefits in lieu of RSUs, even if RSUs have been granted in the past.
(f) All decisions regarding future Awards, if any, will be at the discretion of the Company.
(g) You are voluntarily participating in the Plan.
(h) The RSUs and any underlying Shares, and the income from and value of same, are not intended to replace any pension rights or compensation.
(i) The RSUs and any underlying Shares, and the income from and value of same, are not part of normal or expected compensation for purposes of calculating any severance, resignation, termination, redundancy, dismissal, end-of-service payments, bonuses, holiday pay, long-service awards, pension or retirement or welfare benefits or similar payments.
(j) Unless otherwise agreed with the Company in writing, the RSUs and any underlying Shares, and the income from and value of same, are not granted as consideration for, or in connection with, the service you may provide as a director of a Subsidiary.
(k) The future value of the underlying Shares is unknown, indeterminable and cannot be predicted with certainty.
(l) For purposes of the RSUs, your employment will be considered terminated as of the date you cease to actively provide services to the Company, the Employer or any member of the Bunge Group (regardless of the reason for such termination and whether or not the termination is later found to be invalid or in breach of employment laws in the jurisdiction where you are employed or the terms of your employment agreement, if any). The Committee shall have the exclusive discretion to determine when you are no longer actively providing services for the purpose of your RSU grant (including whether you may still be considered to be providing services while on a leave of absence).
(m) Unless otherwise expressly provided in this Agreement or determined by the Company, any right to vest in the RSUs will terminate as of the date described in the previous paragraph and will not be extended by any notice period (e.g., your period of service would not include any contractual notice period, period of pay in lieu of such notice, any period of “garden leave” or similar period mandated under applicable law).
(n) No claim or entitlement to compensation or damages shall arise from forfeiture of the RSUs resulting from the termination of your employment or other service relationship (for any reason whatsoever, whether or not later found to be invalid or in breach of employment laws in the jurisdiction where you are employed or the terms of your employment agreement, if any.
(o) The following provisions apply if you are providing services outside the U.S.:
(i) The RSUs and any underlying Shares, and the income from and value of same, are not part of normal or expected compensation or salary for any purpose.
(ii) None of the Company, the Employer, or any member of the Bunge Group will be liable for any foreign exchange rate fluctuation between your local currency and the U.S. Dollar that may affect the value of the RSUs or of any amounts due to you pursuant to the settlement of the RSUs or the subsequent sale of any Shares acquired upon settlement.
