Additional Covenants Contract Clauses (2,002)

Additional Covenants. 6.1.1During the period from the date the of Agreement and until Closing the Parties hereby agree that, the Company shall not (and Seller shall not cause or permit the Company to): (i)hire or fire any executive officers or senior management of the Company; (ii)amend, waive or otherwise change, in any respect, the Company's certificate of incorporation or bylaws; (iii)issue, sell, assign, transfer, encumber, hypothecate or otherwise dispose of any equity interests of the Company or options, warran...ts or securities or rights to acquire or convert into equity interests of the Company; (iv)sell, assign, transfer, license, encumber, hypothecate or otherwise dispose of any material assets of the Company outside of the ordinary course of business; (v)pay or set aside any dividend or other distribution (whether in cash, equity or property or any combination thereof) in respect of its shares, or directly or indirectly redeem, purchase or otherwise acquire or offer to acquire any of its securities; (vi)acquire, including by merger, consolidation, acquisition of stock or assets, or any other form of business combination, any corporation, partnership, limited liability company, other business organization or any division thereof, or any material amount of assets outside the ordinary course of business; (vii)incur, create, assume, prepay or otherwise become liable for any Indebtedness (as such term is defined in the Note), make a loan or advance to or investment in any third party, or guarantee or endorse any Indebtedness, liability or obligation of any person; (viii)terminate, waiver or assign any material rights under any material contracts of the Company; (ix)waive, release, assign, settle or compromise any Action (including any Action, relating to this Agreement or the transactions contemplated hereby); (x)enter into, amend, waive or terminate (other than terminations in accordance with their terms) any contract or transaction with Buyer or its affiliates (other than the Company) or any stockholder, officer, director, employee or independent contractor of any of the foregoing or any of their respective immediately family members; or (xi)agree, authorize or commit to do any of the foregoing actions. 7 6.2Cooperation; Further Assurances. The Parties shall cooperate with each other, provide each other and make such filings or reports, upon request and to the extent reasonably practicable, with such assistance and information relating to the Company, which is reasonably necessary in relation to any accounting or regulatory matter, including the preparation of any financial statements, any audit, or any action or investigation initiated or threatened by any third party, including any governmental authority. Each Party agrees to execute further instruments as may be reasonably necessary to carry out this Agreement and the transactions contemplated hereby, provided the Party requesting such further action shall bear all related costs and expenses. View More

Additional Covenants. (a) Prohibition on Press Releases and Public Announcements. The Company shall not issue press releases or engage in any other publicity, without the Representative's prior written consent (such consent not to be unreasonably withheld), for a period ending at 5:00 p.m., Eastern time, on the first (1st) Business Day following the forty-fifth (45th) day after the Closing Date, other than normal and customary releases issued in the ordinary course of the Company's business. (b) M&A Transaction Fee. ...In the event that the Company elects to terminate its further participation in the Offering contemplated hereby and the engagement of the Underwriters prior to consummation of this Offering due to a proposed or completed merger or acquisition transaction whereby the Company will be merged into or acquired by another company or entity (a "M&A Transaction"), (i) the Underwriters shall have the right to serve as investment bankers and/or financial advisors to the Company and (ii) the Company or its successor entity shall pay to the Underwriters a cash fee equal to 1% of the aggregate consideration paid to the Company in the M&A Transaction at the closing of the M&A Transaction. If the Company receives non-cash consideration in the M&A Transaction (including but not limited to equity or debt securities), the value of such non-cash consideration will be included in the calculation of the fee payable to the Underwriters. 20 (c) Right to Participation. The Company shall grant to the Representative the right to act as lead or joint investment banker, lead or joint book-runner and/or lead or joint placement agent, for each and every future public and private equity and debt offering, including all equity linked financings, during the six (6) month period following the completion of this Offering for the Company, or any successor to or any subsidiary of the Company, on terms customary to the Representative; provided, however, the Representative agrees that if the Company engages Jefferies & Co. ("Jefferies"), or BTIG ("BTIG") to act as a lead, or joint underwriter, placement agent, or advisor for the Company to assist with any subsequent offerings, the Company will cause to Jeffries or BTIG to include the Representative in the subsequent offerings at minimum economics of 15%. View More

Additional Covenants. (a) Scope. The Company hereby agrees to indemnify Indemnitee to the fullest extent permitted by Wyoming law, notwithstanding that such indemnification is not specifically authorized by the other provisions of this Agreement, by the Articles or the Bylaws (as now or hereafter in effect) or by the Act. In the event of any change after the date of this Agreement in any applicable law, statute or rule which expands the right of a Wyoming corporation to indemnify a member of its board of directors or... an officer, employee, agent or fiduciary, it is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits afforded by such change. In the event of any change in any applicable law, statute or rule which narrows the right of a Wyoming corporation to indemnify a member of its board of directors or an officer, employee, agent or fiduciary, such change, to the extent not otherwise required by such law, statute or rule to be applied to this Agreement, shall have no effect on this Agreement or the parties' rights and obligations hereunder except as set forth in Section 9(a) hereof. (b) Nonexclusivity. The indemnification provided by this Agreement shall be in addition to any rights to which Indemnitee may be entitled under the Articles or the Bylaws (as now or hereafter in effect), any other agreement, any vote of stockholders or disinterested directors, the Act or otherwise. The indemnification provided under this Agreement shall continue as to Indemnitee for any action taken or not taken while serving in an indemnifiable capacity even though Indemnitee may have ceased to serve in such capacity. 5 5. No Duplication of Payments. The Company shall not be liable under this Agreement to make any payment in connection with any Claim made against Indemnitee to the extent Indemnitee has otherwise actually received payment (under any insurance policy, provision of the Articles, the Bylaws (as now or hereafter in effect) or otherwise) of the amounts otherwise indemnifiable hereunder. View More

Additional Covenants. Guarantor agrees that the Agent or Lenders may, at their sole option, at any time, and from time to time, without consent of or notice to Guarantor, or any of them, and without incurring any responsibility to Guarantor, and without impairing or releasing any of Guarantor's obligations or liabilities under this Agreement: (a) Make additional secured and/or unsecured loans to Borrower; (b) Discharge, release or agree not to sue any party (including, but not limited to, Borrower or any other guaran...tor, surety, or endorser of the Obligations or the Guaranteed Obligations), who is or may be liable for any of the Obligations or the Guaranteed Obligations; (c) Sell, exchange, release, surrender, realize upon, foreclose on by one or more judicial or non-judicial sale, or otherwise deal with, in any manner and in any order, any collateral directly or indirectly securing repayment of any of the Guaranteed Obligations, or fail to perfect any security interest or other Lien in any such collateral or fail to act in any other manner with respect to any collateral securing any part of the Guaranteed Obligations; (d) Alter, renew, extend, accelerate or otherwise change the manner, place, terms and/or times of payment or other terms of any obligation or liability of any party under any Loan Document or the Guaranteed Obligations, or any part thereof, including any increase or decrease in the rate or rates of interest on any of the Obligations or the Guaranteed Obligations; (e) Settle or compromise any of the Guaranteed Obligations; (f) Subordinate and/or agree to subordinate the payment of all or any part of the Guaranteed Obligations, or the Lenders' security rights in any collateral directly or indirectly securing any such Guaranteed Obligations, to the payment and/or security rights of any other present and/or future creditors of Borrower; (g) Apply any payments and/or proceeds received from Borrower or others to other loans and/or obligations and liabilities that Borrower may then owe to the Lenders, whether or not the Guaranteed Obligations subject to this Agreement then remains unpaid; or (h) Enter into, deliver, modify, amend, rescind, or waive compliance with, any instrument or arrangement evidencing, securing or otherwise affecting, all or any part of the Guaranteed Obligations or any Loan Document. -4- 9. No Impairment of Guarantor's Obligations. No course of dealing among the Agent, the Lenders and the Borrower (or any other guarantor, surety or endorser of the Guaranteed Obligations), nor any failure or delay on the part of the Agent or any Lender (or any Affiliate of any Lender) to exercise any of their rights and remedies under this Agreement, the Credit Agreement, or any other Loan Document, shall have the effect of impairing or releasing Guarantor's obligations and liabilities to the Agent and the Lenders (and the Lenders' applicable Affiliates), or of waiving any of their rights and remedies under this Agreement, the Credit Agreement, any other Loan Document or otherwise. Any partial exercise of any rights and remedies granted to the Agent and the Lenders (and the Lenders' applicable Affiliates) shall furthermore not constitute a waiver of any of their other rights and remedies; it being Guarantor's intent and agreement that the Agent's and Lenders' (and the applicable Lenders' Affiliates') rights and remedies shall be cumulative in nature. View More

Additional Covenants. 5.1 Employee Agreements. The Company shall cause each individual now or hereafter employed by it or any of its subsidiaries (or engaged by the Company or any of its subsidiaries as a consultant or independent contractor) with access to the Company's trade secrets and/or confidential information to enter into a confidential information and invention assignment agreement, substantially in the form made available to the Investors. 5.2 Matters Requiring Preferred Director Approval. So long as there ...is at least one Preferred Director serving on the Board, the Company hereby covenants and agrees with each Investor that it shall not, without approval of the Board, which approval must include the affirmative vote of at least one Preferred Director: (a) make, or permit any of its subsidiaries to make, any loan or advance to, or own any stock or other securities of, any subsidiary or other corporation, partnership or other entity unless it is wholly owned by the Company; (b) make, or permit any of its subsidiaries to make, any loan or advance to any person or entity, including any director or employee, except advances and similar expenditures in the ordinary course of business or under the terms of an employee stock or option plan approved by the Board; 21 (c) guarantee (directly or indirectly), or permit any of its subsidiaries to guarantee (directly or indirectly), any indebtedness, except for trade accounts of the Company or any of its subsidiaries arising in the ordinary course of business; (d) enter into, or be a party to, any transaction with any director, officer or employee of the Company or any "associate" (as defined in Rule 12b 2 promulgated under the Exchange Act) of any such person or entity, except for (x) transactions contemplated by the Transaction Agreements (as defined in the Series C Purchase Agreement) or (y) transactions made in the ordinary course of business and pursuant to reasonable requirements of the Company's business and upon fair and reasonable terms that are approved by a majority of the Board; (e) hire, terminate or change the compensation of the Company's executive officers, including approving any option grants or stock awards to such executive officers, or paying bonuses in excess of 20% of base compensation (such approval not to be unreasonably withheld); (f) change the Company's principal business, enter new lines of business or exit the Company's current lines of business; or (g) sell, assign, license, pledge or encumber material technology or intellectual property, other than (i) licenses granted in the ordinary course of business, (ii) in connection with a Deemed Liquidation Event or (iii) in connection with equipment leasing transactions of less than $100,000 in the aggregate, in each case as approved by the Board. 5.3 D&O Insurance. The Company shall use its best efforts to maintain in full force and effect directors and officers insurance in the amount of at least three million dollars ($3,000,000) (or such greater amount as determined by the Board), as determined by the Board and covering such risks as are adequate and customary for its size and business, each with financially sound and reputable insurance companies or associations; provided, however, that the Company shall not terminate or reduce such directors and officers insurance to less than three million dollars ($3,000,000) without the prior written consent of Pfizer. 5.4 Real Property Holding Corporation Notification. The Company shall notify the Investors promptly following any "determination date" (as defined in Treasury Regulations section 1.897-2(c)(1)) or otherwise within five (5) business days of becoming aware that the Company is, or is reasonably likely to be deemed to be, a "United States real property holding corporation" within the meaning of Section 897(c)(2) of the U.S. Internal Revenue Code of 1986, as amended. In addition, at any time upon an Investor's reasonable request, the Company shall issue a statement to the Investor, in form and substance as described in Treasury Regulations sections 1.897-2(h)(1) and 1.1445-2(c) (or any successor regulations) and signed under penalties of perjury, regarding whether any interest in the Company constitutes a "U.S. real property interest" within the meaning of Section 897(c) of the Code, together with an executed notice to the Internal Revenue Services described in Treasury Regulations section 1.897-2(h)(2) (or any successor regulation). Such statement shall be delivered within ten (10) business days of the Investor's written request therefor. 22 5.5 Termination. The covenants set forth in this Section 5 shall terminate and be of no further force or effect upon the earliest to occur of: (i) immediately before the consummation of the Company IPO; (ii) the dissolution or winding up of the Company; and (iii) immediately before the consummation of a Deemed Liquidation Event. View More

Additional Covenants. 5.1 Tacking. Subject to the truth and accuracy of the Holder's representations set forth in Section 4 of this Agreement, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the Securities Act, the Exchange Securities issued in exchange for Held Stock will tack back to the original issue date of such Held Stock for purposes of Rule 144 and the Company agrees not to take a position to the contrary. 5.2 Blue Sky. The Company shall make all filings and reports relating to th...e Exchange Securities required under applicable securities or "Blue Sky" laws of the states of the United States following the date hereof, if any. 5.3 Fees and Expenses. Each party shall pay the fees and expenses of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident to the negotiation, preparation, execution, delivery and performance of this Agreement. View More

Additional Covenants. (a) Further Assurances. From time to time and without additional consideration, each Stockholder shall (at such Stockholder's sole cost and expense) execute and deliver, or cause to be executed and delivered, such additional instruments, and shall (at such Stockholder's sole cost and expense) take such further actions, as Parent may reasonably request for the purpose of carrying out and furthering the intent of this Agreement. (b) Waiver of Appraisal Rights. Each Stockholder hereby waives, to th...e full extent of the law, and agrees not to assert any appraisal rights pursuant to Section 262 of the DGCL or otherwise in connection with the Merger (unless the Board of Directors of the Company has made a Company Adverse Recommendation Change (that has not been rescinded or otherwise withdrawn)) with respect to any and all Subject Shares held by the undersigned of record or beneficially owned. (c) Stock Dividends, etc. In the event of a stock split, stock dividend or distribution, or any change in the shares of Company Common Stock by reason of any split-up, reverse stock split, recapitalization, combination, reclassification, reincorporation, exchange of shares or the like, the terms "shares of Company Common Stock" and "Subject Shares" shall be deemed to refer to and include such shares as well as all such stock dividends and distributions and any securities into which or for which any or all of such shares may be changed or exchanged or which are received in such transaction. (d) Disclosure. The Stockholders hereby authorize the Company and Parent to publish and disclose in any announcement or disclosure required by the SEC, including 3 in the Proxy Statement, the Stockholders' identity and ownership of the Stockholders' Subject Shares and the nature of the Stockholders' obligations under this Agreement. (e) Merger Agreement Amendment. Each of the Stockholders, the Company and Parent shall cooperate with the other parties hereto in good faith and use their respective reasonable best efforts to negotiate and, as promptly as practicable following the date hereof and in accordance with the terms hereof, enter into an amendment to this Agreement in connection with the amendment to the Merger Agreement contemplated by Section 5.17 thereof, providing for each Stockholder to tender the Subject Shares in the tender offer contemplated by such amendment to the Merger Agreement and to make other changes appropriate to reflect the change in structure in a manner reasonably satisfactory to each of the Stockholders, the Company and Parent. View More