TO THE VECO
ACQUISITION, TO OPERATE IN ACCORDANCE WITH THE FINANCIAL PROJECTIONS PREVIOUSLY
DELIVERED BY THE BORROWERS TO THE AGENT, OR TO COMPLY WITH THE FINANCIAL
COVENANTS SET FORTH IN SECTIONS 9.4, 9.5, AND 9.6.
8.3.5
PURCHASE PRICE.
THE PURCHASE PRICE FOR THE VECO
ACQUISITION SHALL NOT EXCEED AN AGGREGATE OF $450,000,000, AND SUCH LIMITATION
SHALL BE INCLUSIVE OF ALL CONSIDERATION PAID IN CASH OR OTHER PROPERTY TO THE
SELLERS IN THE VECO ACQUISITION (WITH THE VALUE OF SUCH OTHER PROPERTY
DETERMINED AS OF THE CLOSING DATE OF THE VECO ACQUISITION), INCLUDING THE VECO
HOLDBACK, ANY SELLER NOTES, "EARN-OUT" OR SIMILAR PAYMENTS, ANY CAPITAL STOCK OF
ANY BORROWER OR ANY SUBSIDIARY ISSUED TO THE SELLERS IN THE VECO ACQUISITION,
AND ALL ASSUMED THIRD PARTY INDEBTEDNESS.
8.3.6
MATERIAL SUBSIDIARIES.
IF ANY PERSON TO BE
ACQUIRED IN THE VECO ACQUISITION WOULD, UPON CONSUMMATION OF THE VECO
ACQUISITION, QUALIFY AS A MATERIAL SUBSIDIARY, THEN CONCURRENTLY WITH THE
CONSUMMATION OF THE VECO ACQUISITION, THE PARENT SHALL, NOTWITHSTANDING THE
PROVISIONS OF SECTION 6, CAUSE SUCH MATERIAL SUBSIDIARY TO EXECUTE AND DELIVER
TO THE AGENT AND THE LENDERS A JOINDER TO THE SUBSIDIARY GUARANTEE AND SUCH
FURTHER AGREEMENTS, DOCUMENTS AND INSTRUMENTS, AND DO OR CAUSE TO BE DONE SUCH
FURTHER ACTS AS MAY REASONABLY BE NECESSARY OR PROPER TO CAUSE SUCH MATERIAL
SUBSIDIARY TO BE JOINED AS AND BECOME A GUARANTOR UNDER SUCH SUBSIDIARY
GUARANTEE AND THE OTHER
56
CREDIT DOCUMENTS TO WHICH MATERIAL SUBSIDIARIES ARE PARTIES FOR ALL PURPOSES
HEREUNDER AND THEREUNDER.
9.
Covenants.
The Borrowers covenant
that, until all of the Credit Obligations have been paid in full and until the
Lenders' commitments to extend credit under this Agreement and any other Credit
Document have been irrevocably terminated, the Borrowers will comply with the
following provisions:
9.1
CONDUCT OF BUSINESS, ETC.
9.1.1
TYPES OF BUSINESS.
EACH BORROWER AND ITS
SUBSIDIARIES WILL ENGAGE ONLY IN THE TYPES OF BUSINESS ACTIVITIES IN WHICH THE
BORROWERS AND THEIR SUBSIDIARIES ENGAGE AS OF THE DATE OF THIS AGREEMENT OR
BUSINESS ACTIVITIES REASONABLY INCIDENTAL THERETO.
9.1.2
STATUTORY COMPLIANCE.
EACH BORROWER WILL, AND WILL
CAUSE ITS SUBSIDIARIES TO, COMPLY IN ALL MATERIAL RESPECTS WITH ALL APPLICABLE
LAWS, UNLESS FAILURE TO COMPLY WOULD NOT HAVE A MATERIAL ADVERSE EFFECT.
EACH
BORROWER WILL (A) ENSURE, AND CAUSE EACH OF ITS SUBSIDIARIES TO ENSURE, THAT NO
STOCKHOLDER (OTHER THAN ANY STOCKHOLDER OF THE PARENT THAT IS, DIRECTLY OR
INDIRECTLY, THE "BENEFICIAL OWNER" (AS DEFINED IN RULES 13D-3 AND 13D-5 UNDER
THE EXCHANGE ACT, EXCEPT THAT A PERSON SHALL BE DEEMED TO HAVE "BENEFICIAL
OWNERSHIP" OF ALL SHARES THAT ANY SUCH PERSON HAS THE RIGHT TO ACQUIRE, WHETHER
SUCH RIGHT IS EXERCISABLE IMMEDIATELY OR ONLY AFTER THE PASSAGE OF TIME), OF
LESS THAN FIVE PERCENT (5.0%) OF THE VOTING POWER OF THE VOTING STOCK OF THE
PARENT ON A FULLY-DILUTED BASIS, AFTER GIVING EFFECT TO THE CONVERSION AND
EXERCISE OF ALL OUTSTANDING WARRANTS, OPTIONS AND OTHER SECURITIES OF THE PARENT
(WHETHER OR NOT SUCH SECURITIES ARE THEN CURRENTLY CONVERTIBLE OR EXERCISABLE)),
SHALL BE