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.
Covenants and Undertakings 8.1 The Borrower undertakes, and shall procure that CCK undertakes, to use their best endeavours to procure a Liquidity Event as soon as practicable, and in any event no later than the Liquidity Event Long-Stop Date.
8.2 The Borrower hereby covenants with and undertakes to the Lender that, subject to disbursement of the First Drawing to the Borrower, and for as long as any amount is or may be outstanding under this Agreement or any part of the Convertible Loan remains outstanding or the Borrower continues to have any obligation hereunder:
(a) the Borrower shall make no grant of any loan or advance to any person, firm, body corporate or other business save in the ordinary course of business, without the prior consent of the Lender;
(b) the Borrower shall make no grant of any guarantee or create or issue any debenture, mortgage, charge or other security, without the prior consent of the Lender;
(c) the Borrower shall not issue, allot or create any share or loan capital and will not grant any right (conditional or not) to require the issuance, allotment or creation of a share in its capital, without prior consent of the Lender, which shall not be unreasonably withheld;
(d) the Borrower shall not declare, pay or make any dividend or other distribution in respect of the Shares, redeem none of such Shares and dispose of no evidence of indebtedness or other security of the Borrower without the prior consent of the Lender;
(e) the Borrower shall use its best efforts to procure that CCK shall deliver, or make available to, the Lender, a LOR on a quarterly basis, and each LOR shall be delivered or made available to the Lender by the twenty-first (21st) day of March, June, September or December (as the case may be) of the relevant calendar year;
(f) save for such information as the Borrower may in good fxxxx xxxx to be a trade secret or highly confidential and subject to the Lender providing the Borrower with at least thirty (30) days’ notice in writing, the Borrower shall make available to the Lender such information relating to the business and financial condition, properties, operations and prospects of the Borrower and its investments as the Lender may from time to time reasonably request, including but not limited to the following:
(i) the Borrower’s quarterly progress reports, its unaudited profit and loss statement, balance sheet and cash flow statement and its unaudited monthly management accounts (comprising balance sheets, profit and loss statements and cash flow statements);
(ii) the Borrower’s audited financial statements (comprising balance sheets, profit and loss statements, cash flow statements and the notes thereto); and
(iii) the Borrower’s annual operating budget, profit forecast, capital asset requirements and business plan, PROVIDED THAT the Lender shall not use such information provided by the Borrower other than for the purposes of evaulating the Lender’s Convertible Loan to the Borrower;
(g) the Borrower shall carry on and conduct its affairs and businesses, in a proper and efficient manner and obtain all necessary consents and comply with all laws relating to the carrying on of its business and keep or cause to be kept in good state of repair and condition in accordance with good commercial practice all its properties and assets, and save as agreed between the Borrower and the Lender, the Borrower shall not cease to conduct any of its business nor carry on any business fundamentally different from its business;
(h) the Borrower shall duly pay and discharge all rents, rates, assessments, taxes (including corporate tax, property tax, sales tax, goods and services tax, import tax, and other governmental, state and provincial taxes and levies) and all outgoings and all charges payable in respect of its assets or income prior to the date when penalties become attached thereto, and shall produce to the Lender on demand all receipts for such payments;
(i) the Borrower shall forthwith notify the Lender in writing of all material litigation, arbitration or administrative proceedings to which Borrower is or may become a party, in whatever capacity, which might have a material adverse effect on Borrower’s business, assets or financial condition after it has knowledge of such event or change or of such litigation, arbitration or administrative proceedings thereof, and the amount of contingent liability, if such amount is ascertainable;
(j) the Borrower shall promptly notify the Lender in writing within three (3) Business Days upon becoming aware of any event or change which has a material adverse effect on the Borrower or which is likely to have a substantial effect on its profits or businesses, such as a strike, lock-out, lay-off, suspension of work or any other event likely to have a material adverse effect on its business or operations;
(k) the Borrower shall duly furnish to the Lender as soon as practicable and in any event not later than five (5) days after they become effective, copies of all amendments to the Constitution of Borrower or other constitutional documents, each certified to be a true copy by a Director;
(l) the Borrower shall maintain, and shall procure the maintenance of, in full force and effect all governmental approvals, filings and recordings necessary or advisable in connection with this Agreement and shall obtain or make any additional governmental approvals, filings or recordings that become necessary or advisable in connection herewith or therewith (if any);
(m) the Borrower shall maintain a system of internal accounting controls sufficient to provide reasonable assurances that:
(i) transactions are executed in accordance with the authorisations by the Board of Directors,
(ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with the accounting principles and practices and to maintain accountability for assets,
(iii) access to assets is permitted only in accordance with management’s general or specific authorisation, and
(iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences;
(n) the Borrower shall maintain the statutory books, books of account and other records of Borrower shall be maintained in accordance with all applicable laws and generally accepted international or Singapore accounting standards, principles and practices on a proper and consistent basis, comprise complete and accurate records of all information required to be recorded therein and that all accounts, documents and returns required by law to be delivered or made by the Borrower to the relevant authorities shall be duly delivered or made; and
(o) the Borrower shall notify the Lender of the occurrence of any Event of Default immediately upon becoming aware of it.
8.3 Any failure by CCK to furnish the LOR in accordance with Clause 8.2(e) above by the respective due dates will constitute a violation (the “First Violation”), and the Lender shall be entitled to deliver to the Borrower a notice in writing notifying the Borrower of the occurrence of such First Violation (the “First Violation Notice”) and:
(a) if the First Violation is not remedied within fourteen (14) Business Days from the date of such First Violation Notice (“Continuing Violation”); or
(b) upon the occurrence of a subsequent violation (“Second Violation”), the Borrower shall be liable to pay the Lender a default payment of [*****] (“Default Payment”) in respect of the Continuing Violation or the Second Violation (as the case may be) within seven (7) Business Days from the date the Lender notifies the Borrower of such Continuing Violation or Second Violation (as the case may be). For the avoidance of doubt, upon payment by the Borrower of the Default Payment, any subsequent failure(s) by CCK to furnish the LOR in accordance with Clause 8.2(e) shall constitute a fresh violation in accordance with this Clause 8.3.
8.4 The Borrower shall execute at its own expense all assurances and other things as are reasonably required or requested at any time, from time to time, by the Lender for giving effect to, and the full benefit of, the covenants contained or implied in this Agreement in favour of the Lender or to protect the Lender’s rights, powers and remedies hereunder or thereunder.
8.5 If after disbursement of the First Drawing, and as the case may be, the Second Drawing, and for as long as full repayment of the Convertible Loan remains outstanding, any event shall occur which results or may result in a breach by the Borrower of any of its obligations under this Clause 8, the Borrower hereby covenants to the Lender that it shall, upon becoming aware of the same, immediately notify the Lender in writing thereof and Borrower shall make all such investigations and/or do all such acts concerning the event or matter which the Lender may reasonably require.
