REQUIRED BY APPLICABLE LAWS.
ARTICLE 6
COVENANTS OF THE COMPANY
6.1
NOTICE OF MATERIAL CHANGE
From the date hereof and until the termination of this Agreement, the Company
shall promptly notify the Offeror in writing of:
(A)
THE OCCURRENCE OF OR IMPENDING OR
ANTICIPATED OCCURRENCE OF ANY MATERIAL ADVERSE CHANGE;
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(B)
ANY FACTS OR CIRCUMSTANCES WHICH WOULD CAUSE
THE COMPANY'S REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT TO BE
MISLEADING OR UNTRUE IN ANY MATERIAL RESPECT OR WHICH WOULD LEAD TO THE BREACH
IN ANY RESPECT OF ANY OF THE COMPANY'S MATERIAL COVENANTS OR OBLIGATIONS SET
FORTH IN THIS AGREEMENT; OR
(C)
ANY GOVERNMENTAL OR THIRD PARTY COMPLAINTS,
INVESTIGATIONS OR HEARINGS WHICH COULD BE MATERIAL AND ADVERSE TO THE BUSINESS,
OPERATION, OR FINANCIAL CONDITION OF THE COMPANY (ON A CONSOLIDATED BASIS) OR
COMMUNICATIONS INDICATING THAT THE SAME MAY BE THREATENED OR CONTEMPLATED.
6.2
NON-COMPLETION FEE
(A)
THE COMPANY SHALL PAY TO THE PARENT AS
LIQUIDATED DAMAGES FOR THE PARENT'S RIGHTS UNDER THIS AGREEMENT THE SUM OF $19.5
MILLION (THE "NON-COMPLETION FEE") IF:
(I)
THIS AGREEMENT IS TERMINATED IN THE
CIRCUMSTANCES SET OUT IN SECTION 8.1(D), 8.1(E), 8.1(F) OR 8.1(G);
(II)
THIS AGREEMENT IS TERMINATED PURSUANT TO
SECTION 8.1(H) AS A RESULT OF THE COMPANY BEING IN DEFAULT OF ANY OF ITS
COVENANTS OR OBLIGATIONS CONTAINED IN SECTION 6.3 OF THIS AGREEMENT;
(III)
THE BOARD OF DIRECTORS FAILS TO DISSEMINATE
OR FILE THE DIRECTORS' CIRCULAR OR SCHEDULE 14D-9, OR ANY AMENDMENT THERETO, IN
ACCORDANCE WITH SECTION 2.4; OR
(IV)
(A) PRIOR TO THE TERMINATION OF THIS
AGREEMENT, AN ALTERNATIVE TRANSACTION IS PUBLICLY ANNOUNCED; (B) AN ALTERNATIVE
TRANSACTION IS CONSUMMATED DURING THE PERIOD COMMENCING ON THE DATE HEREOF AND
ENDING 12 MONTHS FOLLOWING THE TERMINATION OF THIS AGREEMENT, OR THE BOARD OF
DIRECTORS APPROVES OR RECOMMENDS AN ALTERNATIVE TRANSACTION DURING SUCH 12 MONTH
PERIOD AND SUCH ALTERNATIVE TRANSACTION IS SUBSEQUENTLY CONSUMMATED AT ANY TIME
THEREAFTER, OR THE COMPANY ENTERS INTO A DEFINITIVE AGREEMENT WITH RESPECT TO AN
ALTERNATIVE TRANSACTION DURING SUCH 12 MONTH PERIOD AND SUCH ALTERNATIVE
TRANSACTION IS SUBSEQUENTLY CONSUMMATED AT ANY TIME THEREAFTER, AND (C) THE
EFFECTIVE TIME HAS NOT OCCURRED.
For greater certainty, the Company shall not be obligated to make more than one
payment under this Section 6.2 if one or more of the events specified herein
occurs.
(B)
PAYMENT OF THE NON-COMPETITION FEE SHALL BE
DUE: (I)
FORTHWITH (AND IN ANY EVENT WITHIN 5 BUSINESS DAYS) FOLLOWING THE
TERMINATION OF THIS AGREEMENT, BUT PRIOR TO OR CONCURRENTLY WITH TERMINATION IN
THE CASE OF A TERMINATION PURSUANT TO SECTION 8.1(F); AND (II) IN THE CASE OF
THE CIRCUMSTANCES SPECIFIED IN SECTION 6.2(A)(IV), PRIOR TO OR CONCURRENTLY WITH
THE CONSUMMATION OF THE ALTERNATIVE TRANSACTION.
SUCH PAYMENTS SHALL BE MADE IN
IMMEDIATELY AVAILABLE FUNDS TO AN ACCOUNT DESIGNATED BY THE PAYEE.
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6.3
NON-SOLICITATION
(A)
THE COMPANY SHALL IMMEDIATELY CEASE AND
CAUSE TO BE TERMINATED ALL EXISTING DISCUSSIONS AND NEGOTIATIONS, IF ANY, WITH
ANY THIRD PARTIES OR ANY AGENT OR REPRESENTATIVE THEREOF, CONDUCTED ON OR ON