Other Undertakings To protect the interests of the Company and its direct and indirect affiliates and subsidiaries (individually, an “IMS Company” and collectively, the “IMS Companies”), including the confidential information of the IMS Companies and the confidential information of their respective customers, data suppliers, prospective customers and other companies with which the IMS Companies have a business relationship, and in consideration of the covenants and promises and other valuable consideration described in this Agreement, the Company and the Participant agree as follows:
(a) The Participant acknowledges and agrees that he or she is bound by the confidentiality and other covenants contained in one or more restrictive covenant and confidentiality agreements that he or she has executed with an IMS Company, which covenants and agreements are incorporated herein by reference and shall survive any exercise, expiration, forfeiture or other termination of this Agreement or the SARs issuable hereunder. The Participant also acknowledges and agrees that the Company shall be an affiliate for purposes of such restrictive covenant and confidentiality agreements.
(b) The Participant acknowledges that the opportunity to participate in the Plan and the financial benefits that may accrue from such participation, is good, valuable and sufficient consideration for the following:
(i) The Participant acknowledges and agrees that he or she is and will remain bound by the non-competition, non-solicitation and other covenants contained in the restrictive covenant and confidentiality agreement(s) that he or she has executed with any of the IMS Companies to the fullest extent permitted by law.
(ii) The Participant further acknowledges and agrees that the period during which the non-competition and non-solicitation covenants in such agreement(s) will apply following a termination of Employment shall be extended from twelve (12) months to eighteen (18) months; provided, however, that the remedies available for breach of any non-competition or non-solicitation covenants during such extended six-month period shall be limited to the following: (x) to the extent then outstanding, the forfeiture of the SARs for no consideration, and (y) to the extent the SARs have been exercised on or after the date that is 18 months before Participant’s cessation of Employment, with respect to the shares of Stock issued upon such exercise (including shares withheld for taxes), the Participant shall pay to the Company an amount equal to (A) the aggregate fair market value of such shares of Stock as of the date of exercise, plus (B) the excess, if any, of the aggregate proceeds of all sales of such shares of Stock over the amount described under subsection (A) above. (For this purpose, the Participant’s earliest sales of shares following such exercise will be deemed sales of the shares acquired upon such exercise.) The Company shall also be entitled to the foregoing remedies in the event of a material breach of any confidentiality, non-disclosure or other similar covenant contained in the restrictive covenant and confidentiality agreement(s) that the Participant has executed with an IMS Company.
(iii) The Participant further acknowledges and agrees to the Company’s application, implementation and enforcement of (a) such policy set forth in Section 8(b)(ii) of this Agreement and (b) any provision of applicable law or Company policy relating to cancellation, recoupment, rescission or payback of compensation and expressly agrees that the Company may take such actions as are necessary to effectuate such policy (as applicable to the Participant) or applicable law without further consent or action being required by the Participant. For purposes of the foregoing, the Participant expressly and explicitly authorizes the Company to issue instructions, on the Participant’s behalf, to any brokerage firm and/or third party administrator engaged by the Company to hold Participant’s shares of Stock and other amounts acquired under the Plan to re-convey, transfer or otherwise return such shares of Stock and/or other amounts to the Company. To the extent that the terms of this Agreement and such policy conflict, the terms of such policy shall prevail.
(iv) By accepting the SARs, the Participant consents to one or more deductions from any amounts any IMS Company owes the Participant from time to time in an aggregate amount equal to all amounts described in subsection (ii) above, to the extent such deductions are permitted by applicable law. Any such deduction from an amount that constitutes a deferral of compensation under Code Section 409A may only take place at the time the amount would otherwise be payable to the Participant, except to the extent permitted by Code Section 409A.
Positive Undertakings At all times until full discharge of the Secured Obligations, the Issuer covenants with the Security Trustee that it shall:
(a) inform the Security Trustee without undue delay of the occurrence of any event which results in any of the representations and warranties contained in Clause 5 (Representations and Warranties) hereof being untrue or inaccurate;
(b) inform the Security Trustee without undue delay of any attachment (Pfändung) in respect of the Pledged Bonds or any part thereof, or any other event which may impair or jeopardise the Security Trustee's rights relating to the Pledged Bonds. In the event of any such attachment, the Issuer shall provide the Security Trustee without undue delay with a copy of the attachment order (Pfändungsbeschluss) and all other documents which are requested by the Security Trustee and which are necessary or expedient for a defence against such attachment. In addition, the Issuer shall inform the attaching creditor of the existence and effect of this Agreement;
(c) notify the Depo Bank without undue delay about the Pledge, by sending a notice by registered post with return receipt (Einschreiben mit Rückschein), requesting the Depo Bank to acknowledge receipt of the notification by sending to the Security Trustee an acknowledgement, and provide evidence to the Security Trustee in form of a copy of such signed notification and the respective return receipt (Rückschein) within five Business Days after the date of this Agreement; such notification about, and acknowledgement of, the Pledge can also be made as part of any relevant agreement to which the Depo Bank is a party;
(d) if so requested by the Security Trustee, notify Clearstream within 5 Business Days after such request, or procure that Clearstream is notified by the Depo Bank within 5 Business Days after such request, of the Pledges over the Pledged Bonds and the pertinent co-ownership interests in the collective custody holdings (Miteigentumsanteile am Girosammelbestand), and in particular, the assignment of any claims against Clearstream for delivery of the certificates (Abtretung des Herausgabeanspruchs) representing such bonds by registered post with return receipt (Einschreiben mit Rückschein), and provide evidence to the Security Trustee in form of a copy of such signed notification and the respective return receipt (Rückschein) without undue delay; and
(e) use reasonable efforts to procure that, with respect to and/or in connection with the Pledged Bonds, the respective pertinent co-ownership interests of the Issuer in the collective custody holdings (Miteigentumsanteile am Girosammelbestand) and the Issuance Account, the Depo Bank waives or subordinates any right of retention and any right of set-off as well as any existing pledges, including, without limitation, any pledge existing by operation of the general business conditions (Allgemeine Geschäftsbedingungen) of the Depo Bank or otherwise in respect of the Issuance Accounts, if any, so that the Pledge will rank ahead of all other pledges affecting the Issuance Accounts, and to inform the Security Trustee accordingly.
Stockholder Agreements Except as contemplated by or disclosed in the Transaction Agreements, such Founder is not a party to and has no knowledge of any agreements, written or oral, relating to the acquisition, disposition, registration under the Securities Act, or voting of the securities of the Company.
Shareholder Agreements As a material inducement to Parent to enter into this Agreement, and simultaneously with, the execution of this Agreement, each Shareholder (as defined herein) is entering into an agreement, in the form of Annex A hereto (collectively, the "Shareholder Agreements"), pursuant to which they have agreed, among other things, to vote their shares of Company Common Stock in favor of this Agreement.
Stockholder Agreement The Stockholder agrees that, during the period from the date of this Agreement until the Expiration Date:
Further Undertakings The Parties agree to promptly execute the documents which are reasonably required or positive for the purpose of implement of this Agreement, and to take further actions which are reasonably required or positive for the purpose of implement of this Agreement.
INFORMATION UNDERTAKINGS The undertakings in this Clause 20 remain in force from the date of this Agreement for so long as any amount is outstanding under the Finance Documents or any Commitment is in force.
Negative undertakings The Borrowers jointly and severally undertake with each Creditor that, from the date of this Agreement and so long as any moneys are owing under the Security Documents and while all or any part of the Total Commitment remains outstanding, they will not, without the prior written consent of the Agent (acting on the instructions of the Majority Banks):
8.3.1 Negative pledge permit any Encumbrance (other than a Permitted Encumbrance) to subsist, arise or be created or extended over all or any part of their respective present or future undertakings, assets, rights or revenues to secure or prefer any present or future Indebtedness or other liability or obligation of any Relevant Party or any other person;
Shareholder Agreement The Shareholder Agreement shall have been duly executed and delivered by the Company.
Indemnification of Underwriters by Selling Stockholders Each of the Selling Stockholders, severally and not jointly, will indemnify and hold harmless each Indemnified Party, against any and all losses, claims, damages or liabilities, joint or several, to which such Indemnified Party may become subject, under the Act, the Exchange Act, other Federal or state statutory law or regulation or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any part of any Registration Statement at any time, any Statutory Prospectus as of any time, the Final Prospectus, any Issuer Free Writing Prospectus or any Written Testing-the-Waters Communication, or arise out of or are based upon the omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and will reimburse each Indemnified Party for any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending against any loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever (whether or not such Indemnified Party is a party thereto), whether threatened or commenced, and in connection with the enforcement of this provision with respect to the above as such expenses are incurred; provided, however, that the aggregate liability of each Selling Stockholder under this Section 8(b) and Section 8(e) shall be limited to an amount equal to the aggregate net proceeds, after deducting underwriting discounts but before deducting any other expenses, received by such Selling Stockholder from the sale of Offered Securities sold hereunder by such Selling Stockholder (the “Selling Stockholder Proceeds”); provided, further, however, that the Selling Stockholders will only be liable in any case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement in or omission or alleged omission from any of such documents in reliance upon and in conformity with written information furnished to the Company by any such Selling Stockholder specifically for use therein, it being understood and agreed that the only such information furnished by any Selling Stockholder consists of the following information: each Selling Stockholder’s name and corresponding share amounts set forth in the table of Principal and Selling Stockholders in the Registration Statement and Final Prospectus under the heading “Principal and Selling Stockholders” and each Selling Stockholder’s address.
