Certain Restrictions. Except as required or permitted hereby, or as otherwise set forth in Schedule 6.3, during the Interim Period, Seller will cause the Acquired Companies and the Projects to operate in the ordinary course of business and consistent with past practice. Without limiting the foregoing, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not to: (a) permit or allow any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets or Interests, except with respect to the Interests as described in Section 3.4; (b) grant any waiver of any term under, exercise any option under, or give any consent with respect to, any Material Contract; (c) sell, transfer, convey or otherwise dispose of any material Purchased Assets outside the ordinary course of business as of the Effective Date; (d) other than accounts payable incurred in the ordinary course of business or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person; (e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole; (f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person; (g) issue or sell any equity ownership interests; (i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this Section 6.3(h); (i) purchase any securities of any Person, except for short-term investments made in the ordinary course of business; (j) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of business, (ii) any Material Contract (including any Project Financing Document), or (iii) any Contract involving total consideration throughout its term in excess of $1,000,000 (except, in the case of the foregoing clauses (ii) and (iii), Contracts entered into in the ordinary course of business, consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing); (k) waive any claims having a value in excess of $1,000,000, individually or in the aggregate; (l) make any material election with respect to Taxes; (m) amend or modify its Organizational Documents; (n) commence or settle any Claim; (o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement; (p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date; (q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement); (r) enter into any Contract with any Related Party; (s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authorities; or (t) agree or commit to do any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of business.
Appears in 3 contracts
Sources: Purchase and Sale Agreement (Vistra Energy Corp), Purchase and Sale Agreement (Vistra Energy Corp), Purchase and Sale Agreement (Energy Future Intermediate Holding CO LLC)
Certain Restrictions. Except as required or permitted hereby, or as otherwise set forth in Schedule 6.3, during Section 4.06 of the Interim PeriodDisclosure Schedule, Seller will cause refrain from agreeing to any of the Acquired Companies and following actions:
(a) creating any Lien (other than a Permitted Lien) on the Projects Assets except in the ordinary course of Seller's business or as required under Seller's instruments of Indebtedness as in effect on the date hereof and, in each case, as will be removed on or prior to operate the Closing;
(b) selling, leasing (as lessor), transferring or otherwise disposing of, any of the Assets (except as contemplated by Exhibit D to Section 1.01(a)(i) of the Disclosure Schedule), other than Assets used, consumed or replaced in the ordinary course of business and consistent with past practice. Without limiting the foregoing, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not to:
(a) permit or allow any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets or Interests, except with respect to the Interests as described in Section 3.4;
(b) grant any waiver of any term under, exercise any option under, or give any consent with respect to, any Material ContractGood Utility Practice;
(c) sellentering into, transferamending or modifying in any material way, convey terminating (partially or otherwise dispose completely), granting any waiver of any material Purchased Assets outside the ordinary course of business as term under or giving any material consent with respect to any Business Contract, Transferable Permit, Fuel Contract, Colstrip Contract or other contract or agreement comprising a part of the Effective DateAssets or that relates to the Assets, the Assumed Liabilities or is material to the operation of the Colstrip Facilities;
(d) other than accounts payable incurred in the ordinary course of business or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of any Person, except for short-term investments made in the ordinary course of business;
(j) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of business, (ii) any Material Contract (including any Project Financing Document)incurring, purchasing, canceling, prepaying or otherwise providing for a complete or partial discharge in advance of a scheduled payment date with respect to, or waiving any right under, any Liability of or owing to Seller in connection with the Assets, the Assumed Liabilities or the operation of the Colstrip Facilities in an aggregate principal amount exceeding $500,000;
(iiie) engaging with any Contract involving total consideration throughout its term Person in excess any Business Combination, unless such Person agrees in a written instrument to adopt and comply with the terms and conditions of $1,000,000 this Agreement as though such Person was an original signatory hereto;
(except, f) engaging in any transaction individually or in the case aggregate with other such transactions material to the ownership or operation of the foregoing clauses (ii) Assets with any officer, director, Affiliate or Associate of Seller, or any Associate of any such officer, director or Affiliate, that would be an Assumed Liability and (iii), Contracts entered into that would extend beyond the Closing other than in the ordinary course of business, consistent business on terms no less favorable to Seller than could be obtained on an arm's-length basis with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing)an unaffiliated third party;
(k) waive any claims having a value in excess of $1,000,000, individually or in the aggregate;
(l) make any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (ig) to the extent required it has notice thereof and the authority to do so pursuant to the Colstrip Contracts, making any material change in the level of fuel inventory and stores inventory customarily maintained by applicable Law Seller with respect to the PSE Colstrip Interests, other than consistent with Good Utility Practice;
(h) to the extent it has notice thereof and the authority to do so pursuant to the Colstrip Contracts, entering into any commitment for the purchase or by sale of fuel having a Governmental Authorityterm greater than six months and not terminable on or before the Closing either (i) automatically, or (ii) for normal merit by option of Seller (or, after the Closing, by Purchaser) in its sole discretion, if the aggregate payment under such commitment and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined all other outstanding commitments not previously approved by Seller in good faith to retain Transferrable Project Employees not Purchaser would be expected to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date$500,000;
(qi) declaremaking any tax election or entering into or amending any real or personal property Tax agreement, set aside, make treaty or pay any cash or non-cash dividend or other distribution settlement that would have a negative effect on or the Tax status of Purchaser with respect regard to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental AuthoritiesAssets; or
(tj) agree or commit entering into any Contract to do or engage in any of the foregoing. Notwithstanding The foregoing shall not preclude Seller from making, or agreeing to the foregoingmaking of (i) Maintenance Expenditures and Capital Expenditures and (ii) at Seller's expense under the Colstrip Contracts, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long such other maintenance and capital expenditures as Seller shallor MPC deems necessary, upon receipt subject in all cases to the applicable provisions of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of businessColstrip Contracts.
Appears in 3 contracts
Sources: Asset Purchase Agreement (Pp&l Resources Inc), Asset Purchase Agreement (Puget Sound Energy Inc), Asset Purchase Agreement (Pp&l Inc)
Certain Restrictions. Except as required or permitted hereby, or as otherwise set forth in Schedule 6.37.3 to the applicable Acquired Companies Annex, during the Interim PeriodPeriod for each Acquired Companies Acquisition, Seller will cause the applicable Acquired Companies and the Projects to operate in the ordinary course Ordinary Course of business and consistent with past practiceBusiness of such Acquired Companies. Without limiting the foregoing, except as otherwise set forth in Schedule 6.37.3 to the applicable Acquired Companies Annex or in the Ordinary Course of Business of such Acquired Companies, as required or expressly permitted hereby or required by applicable Laws or any Material Contract in effect as other provisions of the Effective Date or amended as permitted hereby this Agreement or as consented to by BuyerPurchaser, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law)delayed, Seller will, during the Interim Period, cause the such Acquired Companies not to:
(a) create, permit or allow any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets material assets or Interestscreate, except with respect permit or allow any Encumbrances to be imposed on or against any of the Interests as described in Section 3.4applicable Interest;
(b) grant any waiver of any material term under, exercise any option under, or give any consent with respect to, under any Material ContractContract or any Land Contract of any of the Acquired Companies;
(c) sell, transfer, convey convey, assign, distribute, remove or otherwise dispose of any material Purchased Assets assets outside the ordinary course Ordinary Course of business as Business of the Effective DateAcquired Companies;
(d) other than (i) accounts payable incurred in the ordinary course Ordinary Course of business Business of the Acquired Companies or otherwise incurred pursuant to the Material Contracts of any of the Acquired Companies or (ii) short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to a Closing with respect to the Closingapplicable Interest, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have result in a material and adverse impact on the Acquired Companies, taken as a wholeMaterial Adverse Effect;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets assets of any other Person;
(g) issue authorize, issue, transfer, dispose, sell or sell grant any equity ownership interestsoptions, warrants, calls or other rights to purchase or otherwise acquire any Equity Securities of any Acquired Company;
(ih) commence any caseliquidate, proceeding dissolve, recapitalize, reorganize or other action under any existing otherwise wind up its business or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this Section 6.3(h)operations;
(i) purchase any securities of any Person, except for short-term investments made in the ordinary course Ordinary Course of businessBusiness of the Acquired Companies;
(j) enter into, terminate terminate, modify or amend (i) any Material Permit other than in the ordinary course of businessmaterial Permit, (ii) any Material Contract (including any Project Financing Document), or (iii) any Contract involving total consideration throughout its term in excess of Five Hundred Thousand Dollars ($1,000,000 500,000) (except, in the case of the foregoing clauses (ii) and (iii), other than Contracts entered into in the ordinary course Ordinary Course of business, consistent with past practice, which Business of the Acquired Companies that will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing);
(k) waive any claims having a value in excess of Two Hundred Fifty Thousand Dollars ($1,000,000250,000), individually or in the aggregate;
(l) make any material election with respect to TaxesTaxes not required by applicable Law that could have a continuing effect on the relevant Acquired Company following the Closing Date;
(m) amend or modify its Organizational Documents;
(n) commence enter into any joint venture, strategic alliance, exclusive dealing, noncompetition or settle any Claimsimilar contract or arrangement that affects the Acquired Companies or the Project;
(o) enter into hire any partnership, joint venture, strategic alliance employees or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to adopt any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental AuthoritiesPlan; or
(tp) agree or commit to do any of the foregoing. Notwithstanding the foregoing, Seller may permit any of the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer Purchaser of any such actions taken outside the ordinary course Ordinary Course of businessBusiness of such Acquired Companies.
Appears in 3 contracts
Sources: Purchase and Sale Agreement (NextEra Energy Partners, LP), Purchase and Sale Agreement, Purchase and Sale Agreement (NextEra Energy Partners, LP)
Certain Restrictions. Except as required or permitted hereby, or as otherwise set forth in Schedule 6.3, during Section 4.07 of the Interim PeriodDisclosure Schedule, Seller will cause refrain from:
(a) creating any Lien (other than a Permitted Lien) on the Acquired Companies and Assets except in the Projects ordinary course of Seller's business or as required under Seller's instruments of Indebtedness and, in each case, as will be removed on or prior to operate the Closing;
(b) selling, leasing (as lessor), transferring or otherwise disposing of, any of the Assets, other than assets used, consumed or replaced in the ordinary course of business and consistent with past practice. Without limiting the foregoing, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not to:
(a) permit or allow any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets or Interests, except with respect to the Interests as described in Section 3.4;
(b) grant any waiver of any term under, exercise any option under, or give any consent with respect to, any Material ContractGood Utility Practice;
(c) sellentering into, transferamending or modifying in any material way, convey terminating (partially or otherwise dispose completely), granting any waiver of any material Purchased Assets outside the ordinary course of business as term under or giving any material consent with respect to any Business Contract, Transferable Permit, Fuel Contract, Colstrip Contract or Power Purchase/Exchange Agreement or other contract or agreement comprising a part of the Effective DateAssets or that relates to the Assets, the Assumed Liabilities or is material to the operation of the Generating Assets;
(d) other than accounts payable incurred in the ordinary course of business or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of any Person, except for short-term investments made in the ordinary course of business;
(j) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of business, (ii) any Material Contract (including any Project Financing Document)incurring, purchasing, canceling, prepaying or otherwise providing for a complete or partial discharge in advance of a scheduled payment date with respect to, or waiving any right under, any Liability of or owing to Seller in connection with the Assets, the Assumed Liabilities or the operation of the Generating Assets in an aggregate principal amount exceeding $500,000;
(iiie) engaging with any Contract involving total consideration throughout its term Person in excess any Business Combination, unless such Person agrees in a written instrument to adopt and comply with the terms and conditions of $1,000,000 this Agreement as though such Person was an original signatory hereto;
(except, f) engaging in any transaction individually or in the case aggregate with other such transactions material to the operation of the foregoing clauses (ii) Generating Assets with any officer, director, Affiliate or Associate of Seller, or any Associate of any such officer, director or Affiliate, that would be an Assumed Liability and (iii), Contracts entered into that would extend beyond the Closing other than in the ordinary course of business, consistent business on terms no less favorable to Seller than could be obtained on an arm's-length basis with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing)an unaffiliated third party;
(kg) waive making any claims having a value in excess of $1,000,000, individually or material change in the aggregate;
(l) make any material election level of fuel inventory and stores inventory customarily maintained by Seller with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnershipthe Generating Assets, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases other than consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental AuthoritiesGood Utility Practice; or
(th) agree entering into any commitment for the purchase or commit sale of fuel having a term greater than six months and not terminable on or before the Closing either (i) automatically, or (ii) by option of Seller (or, after the Closing, by Purchaser) in its sole discretion, if the aggregate payment under such commitment and all other outstanding commitments not previously approved by Purchaser would be expected to exceed $500,000;
(i) making any tax election or entering into or amending any real or personal property Tax agreement, treaty or settlement that would have a negative effect on the Tax status of Purchaser with regard to the Assets;
(j) entering into any Contract to do or engage in any of the foregoing. Notwithstanding the foregoingThe foregoing shall not preclude Seller from making (i) Maintenance Expenditures and Capital Expenditures, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long and (ii) at Seller's expense, such other maintenance and capital expenditures as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of businessdeems necessary.
Appears in 3 contracts
Sources: Asset Purchase Agreement (Pp&l Inc), Asset Purchase Agreement (Pp&l Resources Inc), Asset Purchase Agreement (Montana Power Co /Mt/)
Certain Restrictions. Except as required or permitted herebydisclosed in Section 4.05 of the Disclosure Schedule, or as otherwise set forth in Schedule 6.3the Company will, during the Interim Period, Seller and will cause the Acquired Companies and the Projects to operate in the ordinary course of business and consistent with past practice. Without limiting the foregoingits Subsidiaries to, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not torefrain from:
(a) permit Amending their articles of incorporation or allow bylaws (or other comparable corporate charter documents) or taking any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets or Interests, except action with respect to the Interests as described in Section 3.4any such amendment or any recapitalization, reorganization, liquidation or dissolution of any such corporation;
(b) grant any waiver Except with respect to the issuance of shares upon exercise of existing Options, authorizing, issuing, selling or otherwise disposing of any term under, exercise shares of capital stock of or any option underOption with respect to the Company or its Subsidiaries, or give modifying or amending any consent right of any holder of outstanding shares of capital stock of or Option with respect to, any Material Contractto the Company or its Subsidiaries;
(c) sellDeclaring, transfersetting aside or paying any dividend or other distribution in respect of the capital stock of the Company or its Subsidiaries, convey or directly or indirectly redeeming, purchasing or otherwise dispose acquiring any capital stock of or any material Purchased Assets outside Option with respect to the ordinary course of business as of the Effective DateCompany or its Subsidiaries;
(d) other than accounts payable incurred in the ordinary course of business Acquiring or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance disposing of, or indicating its consent to, approval of, or acquiescence inincurring any Lien (other than a Permitted Lien) on, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of any PersonAssets and Properties, except for short-term investments made in the ordinary course of business;
(j) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of businessbusiness consistent with past practice;
(i) Entering into, amending, modifying, terminating (partially or completely), granting any waiver under or giving any consent with respect to (A) any material Contract or (B) any material License or (ii) granting any Material Contract irrevocable powers of attorney;
(including f) Violating, breaching or defaulting under in any Project Financing Document)material respect, or taking or failing to take any action that (iiiwith or without notice or lapse of time or both) would constitute a material violation or breach of, or default under, any term or provision of any material License held or used by the Company, Galaxy Mall and IMI or any Contract involving total consideration throughout to which the Company, Galaxy Mall or IMI is a party or by which any of its term Assets and Properties is bound;
(g) Incurring Indebtedness in excess of $1,000,000 50,000;
(excepth) Engaging with any Person in any merger or other Acquisition Proposal, except as otherwise permitted by and subject to this Agreement ;
(i) Making capital expenditures in the case excess of $100,000;
(j) Writing off or writing down any of the foregoing clauses (ii) Company's, Galaxy Mall's and (iii), Contracts entered into in the ordinary course of business, consistent with past practice, which will be fully performed prior to Closing IMI's' Assets and under which the Acquired Companies will have no further obligations or liabilities following the Closing)Properties;
(k) waive entering into any claims having a value Contract to do or engage in excess any of $1,000,000, individually or in the aggregate;foregoing; or
(l) make engaging in any material election with respect action that could reasonably be expected to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) cause the Merger to fail to qualify as a "reorganization" under Section 368(a) of the extent required by applicable Law Code or by a Governmental Authority, (ii) interfere with Parent's ability to account for normal merit and cost the Merger as a pooling of living increases consistent with past practiceinterests, whether or not (iiiin each case) changes in salary to otherwise permitted by the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as provisions of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing this Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authorities; or
(t) agree or commit to do any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of business.
Appears in 3 contracts
Sources: Merger Agreement (Netgateway Inc), Merger Agreement (Galaxy Enterprises Inc /Nv/), Merger Agreement (Netgateway Inc)
Certain Restrictions. Except as required or permitted hereby, or as otherwise set forth in Schedule 6.3, during the Interim Period, Seller will cause the Acquired Companies and the Projects to operate in the ordinary course of business and consistent with past practice. Without limiting the foregoing, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent Debtor shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not tonot:
(a) permit or allow at any Encumbrances time, without limiting its obligation to constitute a Single Purpose Entity, incur any Indebtedness (other than Permitted Encumbrances) the Excess Working Capital Advances, Discretionary Funding Advances and Indebtedness evidenced by the Purchase Money Notes and pursuant to be imposed on or against any of the Purchased Assets or Interests, except with respect to the Interests as described in Section 3.4this Agreement);
(b) grant dissolve or liquidate at any waiver of any term under, exercise any option under, or give any consent with respect to, any Material Contract;
(c) sell, transfer, convey or otherwise dispose of any material Purchased Assets outside the ordinary course of business as of the Effective Date;
(d) other than accounts payable incurred in the ordinary course of business or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged time prior to such time as Debtor makes the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that Final Distribution and this Agreement is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership intereststerminated;
(i) commence file a voluntary petition for bankruptcy, (ii) file a petition or answer seeking any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustmentcomposition, winding-upreadjustment, liquidation, dissolutiondissolution or similar relief under any Law, composition (iii) make an assignment for the benefit of creditors, (iv) seek, consent or other relief with respect to it or its debts, or (D) acquiesce in the appointment of a receiver, trustee, custodian, conservator receiver or other similar official for it liquidator or for of all or any substantial part of its assetsproperties, (v) file an answer or other pleading admitting or failing to contest the material allegations of (iiA) make a general assignment for the benefit of its creditors, or take petition filed against it in any action proceeding described in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this Section 6.3(h);
clause (i) purchase any securities of any Person, except for short-term investments made in the ordinary course of business;
through (j) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of business, (ii) any Material Contract (including any Project Financing Documentiv), or (iiiB) any Contract involving total consideration throughout its term order adjudging it a bankrupt or insolvent or for relief against it in excess of $1,000,000 (except, in the case of the foregoing clauses (ii) and (iii), Contracts entered into in the ordinary course of business, consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations any bankruptcy or liabilities following the Closing);
(k) waive any claims having a value in excess of $1,000,000, individually or in the aggregate;
(l) make any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practiceinsolvency proceeding, or (iiivi) changes in salary allow itself to become unable to pay its obligations as they become due or allow the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to any sum of its ownership interests (other debts to be greater than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delayall of its property, defer, reduce or otherwise alter in any material respect any capital expenditures in at a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authoritiesfair valuation; or
(td) agree place or commit permit (voluntarily or involuntarily) any Lien to do be placed on any of the foregoing. Notwithstanding Collateral (other than the foregoingsecurity interest granted to Collateral Agent hereunder and Liens expressly permitted pursuant to the Ancillary Documents), Seller may permit the Acquired Companies and shall not take any action to take commercially reasonable actions interfere with Collateral Agent’s rights as a secured party with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of businessCollateral.
Appears in 3 contracts
Sources: Reimbursement, Security and Guaranty Agreement, Reimbursement, Security and Guaranty Agreement, Reimbursement, Security and Guaranty Agreement
Certain Restrictions. Except Seller covenants that, except as required or permitted hereby, or as otherwise set forth in Schedule 6.3, during the Interim Period, Seller will cause operate and maintain the Acquired Companies Business and the Projects to operate Purchased Assets in the usual and ordinary course of business and consistent with past practiceGood Operating Practices. Without limiting the foregoing, except as otherwise set forth in Schedule 6.3during the Interim Period, required or permitted hereby or required by applicable Laws or any Material Contract in effect as Seller will not, without the prior consent of the Effective Date or amended as permitted hereby or as consented to by BuyerPurchaser, which consent shall not be unreasonably withheld, conditioned withheld or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not todelayed:
(a) permit permit, allow, or allow suffer to exist any Encumbrances Lien (other than a Permitted EncumbrancesLien) to be imposed on or against any of the Purchased Assets or Interests, except with respect to the Interests as described in Section 3.4Assets;
(b) grant any waiver of any material term under, exercise any option under, or give any material consent with respect to, any Material Contract;
(c) sell, lease (as lessor), transfer, convey or otherwise dispose of any material Purchased Assets outside (including by way of merger, liquidation or dissolution) having an aggregate value in excess of $50,000, other than Purchased Assets used, consumed or replaced in the ordinary course of business as of consistent with Good Operating Practices or Purchased Assets which are replaced prior to the Effective DateClosing;
(d) other than accounts payable trade payables incurred in the ordinary course of business or otherwise incurred accounts payable pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closingany Contract, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice except as may be required to meet the requirements of applicable Law or GAAP, in a way that would reasonably be expected to have a material and adverse impact on adversely affect the Acquired Companies, taken as a wholeBusiness or Seller;
(f) fail to maintain its limited liability company existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership limited liability company membership interests;
(ih) commence any caseliquidate, proceeding or other action under any existing or future Debtor Relief Lawdissolve, seeking (A) to have an order for relief entered with respect to itrecapitalize, reorganize, or (B) to adjudicate it as bankrupt otherwise wind up its business or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this Section 6.3(h)operations;
(i) purchase any securities of any Person, except for short-term investments made in the ordinary course of business;
(j) enter into, terminate terminate, extend or amend (i) any Material Permit other than in the ordinary course of business, (ii) any Material Contract (including any Project Financing Document), or (iii) any Contract involving total consideration throughout its term in excess of $1,000,000 100,000 (except, in the case of the foregoing clauses (ii) and (iii), other than Contracts entered into in the ordinary course of business, consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing);
(k) cancel any debts or waive any claims or rights with respect to the Purchased Assets having a value in excess of $1,000,000value, individually or in the aggregate, in excess of $100,000;
(l) enter into any collective bargaining or labor agreement;
(m) make any material election with respect to Taxes;
(mn) amend or modify its Organizational Charter Documents;
(n) commence or settle any Claim;
(o) enter into make any partnership, joint venture, strategic alliance or similar contract or arrangementmaterial change in the operations of the Purchased Assets including the levels of inventory and materials and supplies customarily maintained by Seller;
(p) increase the compensation payable enter into, terminate, extend or to become payable amend any real or the benefits provided to the Transferrable Project Employeespersonal property Tax agreement, treaty or settlement, except as required by applicable Law;
(iq) execute, enter into, terminate, extend or amend any agreement, order, decree or judgment relating to the extent any material Permit, except as required by applicable Law or by a Governmental Authority, (iiin any case other than termination) for normal merit and cost except in the ordinary course of living increases business consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement)practices;
(r) enter into prohibit payment of or delay payment of or prohibit or delay discharge of any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would Liability that will be consistent with prudent operating practice and directives from ERCOT and other Governmental Authoritiesan Assumed Liability; or
(ts) agree or commit to do any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer Purchaser of any such emergency actions taken outside the ordinary course of business.
Appears in 2 contracts
Sources: Asset Purchase Agreement (PPL Electric Utilities Corp), Asset Purchase Agreement (Pinnacle West Capital Corp)
Certain Restrictions. Except as required or permitted hereby, or as otherwise set forth in Schedule 6.3(a) Subject to Sections 2(b) and 2(c), during the Interim period beginning on the date of the acquisition by WLR and/or the Investors of the ▇▇▇▇▇▇ Shares pursuant to the ▇▇▇▇▇▇ Agreement and ending on the third anniversary thereof (or, if earlier, the date that the WLR Group no longer has Beneficial Ownership of at least 25% of the then-outstanding Common Shares) (the “Standstill Period”), Seller without the prior written approval of the Company, no member of the WLR Group may, and each will cause each of its controlled Affiliates not to, act alone or in concert with any other Person or group to, directly or indirectly:
(i) acquire or agree to acquire, whether by purchase, tender or exchange offer or otherwise, Beneficial Ownership of additional Common Shares, except that (A) members of the Acquired Companies WLR Group and their Affiliates may acquire Beneficial Ownership of additional Common Shares representing in the aggregate not more than 1% of then-outstanding Common Shares in any consecutive 12-month period (with any unused right to be carried over to the next 12-month period) during the Standstill Period and (B) the WLR Group may acquire, whether by purchase, tender or exchange offer or otherwise, Beneficial Ownership of additional Common Shares in any transaction that, prior to the purchase of such Common Shares thereunder, has been accepted or approved by a majority of the members of the Board who are not employed by any member of the WLR Group or nominated for election to the Board by the WLR Group (such approval, “Board Approval”) or the holders of a majority of the Common Shares not Beneficially Owned by the WLR Group (such approval, “Majority of the Minority Approval”);
(ii) publicly offer or propose to effect (A) any tender offer, merger, consolidation, exchange, business combination, recapitalization, restructuring, liquidation, dissolution or other transaction in which Common Shares would be purchased, converted or exchanged into cash or other property, (B) any sale of any of the vessels of the Company or any of its Subsidiaries or of all or any substantial part of the assets of the Company or any of its Subsidiaries or any material portion of their businesses, (C) an initial public offering of the Common Shares, or (D) any transaction involving a member of the WLR Group, on the one hand, and the Projects to operate Company or one of its Subsidiaries, on the other hand (excluding transactions in the ordinary course of business and consistent on arms’ length terms); provided, however, nothing herein will prohibit any member of the WLR Group or any of its Affiliates from making any offer or proposal if such offer or proposal is (A) requested to be made in writing by the Board, acting with past practice. Without limiting Board Approval, prior to the foregoingmaking of such offer or proposal or (B) made on a confidential basis in discussions with or proposals to the Board and/or senior executives of the Company; provided, except further, however, that any offer or proposal permitted to be made pursuant to clause (A) of this provision or Section 2(c) below will be expressly conditioned upon Board Approval or Majority of the Minority Approval; or
(iii) publicly seek a waiver, amendment or modification of any provision of this Section 2(a); provided, however, that nothing herein will prohibit any member of the WLR Group or any of its Affiliates from making any such request to the Board and/or senior executives of the Company on a confidential basis;
(iv) prior to the Continuing Director Termination Date, nominate or seek the election of designees to the Board of any of the members of the WLR Group in a number in excess of that provided in Section 2.1 of the Investor Rights Agreement, or seek the removal of any director who is not replaced by a Continuing Director; provided, however, that nothing will limit the WLR Group’s ability to seek removal of any Board Designee;
(v) prior to the Continuing Director Termination Date, solicit or participate in any “solicitation” of “proxies” (as otherwise such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Schedule 6.3, required or permitted hereby or required Section 14a-1(1)(2)(iv) from the definition of “solicitation”) with respect to the Company (other than as contemplated by applicable Laws or any Material Contract in effect as Section 2 of the Effective Date Investor Rights Agreement);
(vi) prior to the Continuing Director Termination Date, grant any proxy with respect to any Common Shares (other than to the Chief Executive Officer of the Company, any Board Designee or amended another member of the WLR Group);
(vii) prior to the Continuing Director Termination Date, form, join or participate in a “group” (as permitted hereby defined in Section 13(d) of the Exchange Act) with respect to any Common Shares or as consented deposit any Common Shares in a voting trust or subject any Common Shares to by Buyerany arrangement or agreement with respect to the voting of such Common Shares or other agreement having similar effect, which consent shall not be unreasonably withheldother than a group or voting arrangement comprised solely of other members of the WLR Group, conditioned Board Designees and Continuing Directors, including their controlled Affiliates; or
(viii) during the Standstill Period (or, where applicable, prior to the Continuing Director Termination Date), enter into any agreements with any other Person (excluding members of the Board or delayed management or their respective controlled Affiliates) with respect to any of the foregoing clauses (except that iv)-(vii); or
(ix) bring any legal action to contest the validity of this Section 6.3 shall 2(a).
(b) The restrictions set forth in Section 2(a) will not restrict (i) prohibit any member of the transfer WLR Group or any of Excluded Itemsits Affiliates from (A) participating in any tender offer, or participating in or voting for or against any Change of Control or any other transaction that has received or is expressly conditioned on Board Approval or Majority of the Minority Approval, or (B) except to the extent expressly limited by this Section 2, transferring any Common Shares, or (ii) be construed to prohibit a Board Designee or other representative of the WLR Group from confidentially discussing a proposal concerning any extraordinary transaction involving the Company or any successor thereto, any Subsidiary or division thereof, or any of their respective securities or assets, with the Board and representatives of the Company and its advisors who are involved in the evaluation or execution of any such proposal on behalf of the Company.
(c) Notwithstanding the foregoing provisions of this Section 2, the WLR Group and its controlled Affiliates will be released from their obligations under Sections 2.1(a)(ii)-(viii) immediately, and without any other action by the Company in the event that (i) any Person (other than a member of the WLR Group) publicly offers or proposes to effect any Change of Control, (ii) the termination or assignment Company executes an agreement with any Person (other than a member of Excluded Contractsthe WLR Group) providing for a Change of Control, (iii) any Person (other than a member of the taking WLR Group) acquires more than the number of any action otherwise listed below Common Shares then held by the members of the WLR Group without agreeing to be subject to restrictions at least as restrictive as those applying to the extent reasonably required to accomplish any of the Permitted Transactions WLR Group hereunder, or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to Company or any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not to:
(a) permit or allow any Encumbrances Person (other than Permitted Encumbrances) to be imposed on or against any a member of the Purchased Assets or Interests, except with respect to the Interests as described in Section 3.4;
(bWLR Group) grant makes any waiver of any term under, exercise any option under, or give any consent with respect to, any Material Contract;
(c) sell, transfer, convey or otherwise dispose of any material Purchased Assets outside the ordinary course of business as of the Effective Date;
(d) other than accounts payable incurred in the ordinary course of business or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of any Person, except for short-term investments made in the ordinary course of business;
(j) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of business, (ii) any Material Contract (including any Project Financing Document), or (iii) any Contract involving total consideration throughout its term in excess of $1,000,000 (except, in the case of the foregoing clauses (ii) and (iii), Contracts entered into in the ordinary course of business, consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing);
(k) waive any claims having a value in excess of $1,000,000, individually or in the aggregate;
(l) make any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or public announcement with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined foregoing matters; provided, however, that in the Project Financing Agreement);
(r) enter into event that any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget member of the Acquired Companies provided to Buyer WLR Group makes any public offer or proposal contemplated by Section 2(a)(ii) as the Effective Datepermitted by this Section 2(c), except as would such public offer or proposal will be consistent with prudent operating practice and directives from ERCOT and other Governmental Authorities; or
(t) agree conditioned on Board Approval or commit to do any Majority of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of businessMinority Approval.
Appears in 2 contracts
Sources: Investor Restrictions Agreement, Investor Restrictions Agreement (Navigator Holdings Ltd.)
Certain Restrictions. Except as required or permitted hereby(a) During the Interim Period, or as otherwise set forth the Company shall and shall cause each of its Subsidiaries to operate in Schedule 6.3the ordinary course consistent with past practice, except for the Pre-Closing Restructuring. Without limiting the generality of the foregoing, during the Interim Period, Seller will cause except as set forth in Schedule 6.02(a), the Acquired Companies Pre-Approved Interim Expenditures, Budgeted Operating Project Expenses, debt service costs including interest payments for existing Debt Obligations and letters of credit in existence on the Projects date hereof or otherwise permitted to operate be incurred pursuant to this Section 6.02, the Pre-Closing Restructuring and all matters in connection with the Route 66 Project and Palouse Project sales, the Company shall not and shall not permit any of its Subsidiaries to take any of the following actions without Buyers consent (such consent, in the case of the following clauses (iv), (vii) and (ix), not to be unreasonably withheld, delayed or conditioned); provided that if Buyers fail to respond to any request for consent within ten (10) days, or in the case of Section 6.02(a)(xv) within three (3) days, of such request being made, Buyer shall be deemed to have consented to such request:
(i) amend its or any Company Entity’s Organizational Documents in any material respect or undertaking any recapitalization, reorganization, liquidation, dissolution or winding up;
(ii) make any expenditures, loans or advances, except for those expenditures, loans or advances made in the ordinary course of business business, including any intercompany transactions and consistent with past practice. Without limiting that do not exceed 10% over the foregoing, except as otherwise set forth Pre-Approved Interim Expenditure or Budgeted Operating Project Expenses per Project or $3,000,000 in Schedule 6.3, required the aggregate over the Pre-Approved Interim Expenditure or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, Budgeted Operating Project Expenses;
(iii) the taking dispose of any action otherwise listed below to the extent reasonably required to accomplish properties, or incur any of the Permitted Transactions Liens or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to permit any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not to:
(a) permit or allow any Encumbrances (other than Permitted Encumbrances) Liens to be imposed on any property, other than (A) Permitted Liens and Liens to support letters of credit or against any of the Purchased Assets Debt Obligations permitted under Section 6.02(c), (B) pursuant to existing Contracts or Interestscommitments, except (C) with respect to Operating Entities, dispositions in connection with ordinary course operations and maintenance (D) with respect to the Interests as described Earnout Projects, dispositions in Section 3.4connection with ordinary course construction (E) with respect to Platform Entities (other than Earnout Projects), ordinary course dispositions with a value less than $1,000,000 in the aggregate or (F) other than any transfer between two Company Entities;
(biv) grant enter into any waiver of Contract that would be a Company Contract if in existence on the date hereof or materially amend, materially modify or terminate (partially or completely) any term underCompany Contract, exercise any option under, or give any consent with respect to, any Material Contract;
(c) sell, transfer, convey or otherwise dispose of any material Purchased Assets outside the ordinary course of business as of the Effective Date;
(d) other than accounts payable incurred in the ordinary course of business or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) ordinary course purchase or work orders or similar instruments, (B) renewals or extensions of Company Contracts in accordance with the terms thereof, (C) amendments that are not adverse to have an order for relief entered any Company Entity, (D) with respect to it, Contracts evidencing Debt Obligations permitted by Section 6.02(c) or (BE) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of any Person, except for short-term investments made in the ordinary course of business;
(jv) enter intosubject to 6.02(c), terminate post cash collateral or amend incur Debt Obligations, other than (A) incurring Debt Obligations under existing project level facilities or the existing revolving credit facility to fund project development in a manner consistent with the Pre-Approved Interim Expenditures, or (B) posting cash collateral or letters of credit in the ordinary course of business in connection with Earnout Projects, or otherwise in an amount less than $1,500,000 in the aggregate with respect to non-Earnout Projects;
(vi) fail to maintain its legal existence or consolidate with any other Person;
(vii) cancel in writing any debt owed to any Company Entity, or waive in writing any claim or right other than for value, having a value in excess of $250,000 in the aggregate;
(viii) except as required by Applicable Law, settle or compromise any material Tax liability or make any new, or change any existing, material Tax election, including any election by any Company Entity to be taxable as a corporation;
(ix) other than specifically contemplated by or agreed to in accordance with the terms of Schedule 6.02(a)(ix), except in the ordinary course of business consistent with past practice, or as otherwise required by Applicable Law or by the terms of any existing Company Employee Benefit Plan, (i) enter into or modify any Material Permit employment Contract, (ii) change the status, title or responsibilities, including the promotion or termination, of any officer of the Company or promote any Company Employee (who is not an officer as of the date of this Agreement) to an officer position, (iii) increase the level of wages, overall compensation or other benefits of any Company Employees, (iv) pay any compensation to or for any Company Employee or officer or director of any Company Entity other than in the ordinary course of businessbusiness and pursuant to existing Company Employee Benefit Plans, (iiv) hire any Material Contract (including any Project Financing Document)new employee, officer or (iii) any Contract involving total consideration throughout its term individual independent contractor with annual base compensation in excess of $1,000,000 100,000 (exceptother than to fill vacant positions), (vi) terminate without cause the employment of any Company Employee with annual base compensation in excess of $100,000, (vii) pay or agree to pay any bonus, incentive compensation, service award, severance, “stay bonus” or other like benefit or (viii) enter into, establish, modify or terminate any Company Employee Benefit Plan;
(x) change in any material respect the case Company Entity’s accounting methods or practices other than as required by GAAP;
(xi) seek to amend in any material respect any material Governmental Approvals;
(xii) subject any Company Entity to any non-competition or non-solicitation restrictions;
(xiii) declare or pay any dividends or distributions in respect of the foregoing clauses Company Securities (ii) and (iii), Contracts entered into in the ordinary course of business, consistent with past practice, which will be fully performed other than customary tax distributions paid prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing);
(k) waive any claims having a value in excess of $1,000,000, individually or in the aggregate;
(l) make any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(oxiv) enter into any partnership, joint venture, strategic alliance or similar contract or arrangementnew tax equity financing;
(pxv) increase settle or initiate (which shall not include counter claims) any Action except for any Action that that involves the compensation payable payment of money damages of less than $1,000,000 in the aggregate and that does not impose restrictions or to become payable or limitations on the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as operation of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authoritiesbusiness; or
(txvi) agree or commit to do or engage in any of the foregoing. Notwithstanding .
(b) During the foregoingInterim Period, Seller may permit the Acquired Companies Company Entities shall use their commercially reasonable efforts to (i) take the pre-construction or construction activities reasonably necessary to further the development of the Earnout Projects, including the pre-construction and construction activities contemplated by the Pre-Approved Interim Expenditures, (ii) use their commercially reasonable efforts to take commercially reasonable actions the pre-construction activities reasonably necessary to further the development of the other Projects consistent with respect past practice, (iii) maintain all of their existing relationships with material agents, customers and vendors and any material Governmental Approvals or interconnection or transmission rights or positions and (iv) pay all accounts payables and other obligations as they become due in the ordinary course and consistent with past practice.
(c) During the Interim Period, the Company may incur Debt Obligations to emergency situations so long as Seller shallfinance any matter set forth in the Pre-Approved Interim Expenditures, upon receipt of in an aggregate amount up to $150 million, provided that first the Company provides Buyers with written notice of its intention to incur such Debt Obligations (such notice to include the proposed amount and terms of such Debt Obligations and be provided together with any proposed term sheets relating to such actionsfinancing with a third party financing source) and if by the end of the period of 10 days following such notice being given, promptly inform Buyer Buyers have not provided such financing, then the Company may incur such Debt Obligations with a third party; provided that such Debt Obligation is able to be prepaid prior to or at Closing in accordance with its terms without consent of the lender and without any such actions taken outside obligations that survive repayment other than indemnity obligations (an “Interim Debt Obligation”).
(d) Except as provided in this Section 6.02, nothing contained in this Agreement shall give Buyers, directly or indirectly, the right to control or direct Sellers’ or the Company Entities’ operations prior to the Closing. Prior to the Closing, the management of Sellers and Company Entities shall exercise, consistent with and in accordance with the terms and conditions of this Agreement, complete control and supervision over their operations.
(e) From the date hereof until the Closing Date, Buyers shall and shall cause Guarantor and each of their respective Subsidiaries to (i) conduct their businesses in the ordinary course of businessbusiness except as contemplated by or in connection with this Agreement and (ii) not take any action that would result in an adjustment to the Exchange Rate (as defined in the Exchangeable Notes Indenture), determined as if the Exchangeable Notes were issued on the date hereof, it being understood that any regular quarterly cash dividend or distribution that does not exceed $0.1717 paid on or prior to January 1, 2015, will not be deemed to result in an adjustment. Notwithstanding anything to the contrary herein, the sole remedy for a breach of this Section 6(e)(ii) will be that the Exchange Rate (as defined in the Exchangeable Notes Indenture) at issuance of the Exchangeable Notes will be adjusted to the Exchange Rate that would have been in effect if the Exchangeable Notes had been issued as of the date this Agreement, as if the Initial Dividend Threshold (as defined in the Exchangeable Notes Indenture) for dividends paid in each calendar quarter in 2014 were $0.1717 per quarter.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Sunedison, Inc.), Purchase and Sale Agreement (TerraForm Power, Inc.)
Certain Restrictions. Except as (a) From the date of this Agreement, the Company will be required to obtain the consent of the Purchaser (collectively, the “Purchaser Consent Rights”) prior to the Company or permitted herebyany of its Subsidiaries:
(i) approving the annual budget and plan for the Company;
(ii) making any capital expenditure in excess of $2,000,000 not included in the Company’s approved annual budget;
(iii) appointing, terminating or transferring the Chief Executive Officer or the Chief Financial Officer of the Company, or as otherwise any other executive officer of the Company, or materially amending or modifying the terms and conditions of any such Person’s terms and conditions of employment; provided that this subclause (iii) will not apply to an Exempt Issuance or awards or payments made pursuant to the Company’s annual incentive plans (the “Additional Consent Right”); provided further that the rights set forth in Schedule 6.3this sub-clause (iii) will be operative only upon approval of the Additional Consent Right by the shareholders of the Company as set forth herein;
(iv) from the Initial Closing Date until the fifth anniversary of the Initial Closing Date, during entering into or consummating any merger, consolidation, business combination, reorganization, recapitalization, asset sale (including any sale of stock of a Subsidiary) or any other acquisition or series of related transactions or lease or license of any properties or assets of the Interim PeriodCompany with a value, Seller in any one case, in excess of $5,000,000; provided that this subclause (iv) will cause not apply to any internal reorganization of the Acquired Companies Company or any of its Subsidiaries that is for tax purposes or which is by and between any direct or indirect wholly-owned subsidiaries of the Projects Company;
(v) entering into any joint venture agreement, partnership agreement or any other similar agreement with a value in excess of $5,000,000;
(vi) acquiring any material shares or other material equity interests in, or making any other material investments in, any other Person;
(vii) amending or modifying the constituent documents of the Company or any Subsidiary in a manner which would adversely affect the Purchaser’s rights pursuant to operate the Transaction Documents, or adopting or amending any anti-takeover measures, or changing or modifying the size of the Board of Directors (except in accordance with Section 4.1);
(viii) declaring, setting aside, making or paying any dividends or distributions (other than by Subsidiaries of the Company);
(ix) engaging in stock repurchases or redemptions (other than in connection with an Exempt Issuance);
(x) issuing any equity securities or instruments convertible (including warrants) into equity securities or any phantom stock or other similar rights, other than in connection with an Exempt Issuance;
(xi) incurring indebtedness (including guarantees) for borrowed money or granting of Encumbrances, other than (A) indebtedness (including guarantees) for borrowed money incurred or granting of Encumbrances under the Loan Documents or any refinancings thereof, (B) vendor inventory financing and Encumbrances on real property provided in the ordinary course of business and consistent (C) in connection with past practice. Without limiting the foregoing, except as otherwise set forth in Schedule 6.3, required a loan facility not to exceed £9,000,000 for all or permitted hereby or required by applicable Laws or any Material Contract in effect as part of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not to:
(a) permit or allow any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets or Interests, except with respect to the Interests as described in Section 3.4UK Business;
(bxii) grant commencing any waiver proceeding under any provision of any term underthe United States Bankruptcy Code, exercise any option underas amended, or give any consent with respect to, any Material Contract;
(c) sell, transfer, convey or otherwise dispose of any material Purchased Assets outside the ordinary course of business as of the Effective Date;
(d) other than accounts payable incurred in the ordinary course of business or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of under any other Person;
(e) except as may be required to meet the requirements of applicable Laws bankruptcy or GAAPinsolvency law, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have making an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, creditors or take any action in furtherance of, approving a plan of dissolution or indicating its consent to, approval of, liquidation with respect to the Company or acquiescence in, any of its Subsidiaries;
(xiii) adopting any plan or program to close a material number of existing stores (other than Small Format Stores) or to open a material number of new stores;
(xiv) entering into any substantially new line of business or adopting any plan to conduct business outside of the acts set forth United States and those non-United States jurisdictions in this Section 6.3(hwhich the Company conducts business as of the date hereof (other than through the Company’s website or e-book offerings);
(ixv) purchase any securities of any Person, except for short-term investments made in terminating or materially modifying the ordinary course of businessCompany’s existing Internet website;
(jxvi) enter intoexcept as required by the Loan Documents, terminate selling, transferring, licensing, assigning, permitting to lapse or amend otherwise disposing of any material intellectual property rights of the Company or its Subsidiaries;
(ixvii) making any Material Permit other than material change in the ordinary course cash management practices or in the accounting practices, methods and principles of businessthe Company, except as required by GAAP;
(iixviii) waiving against third parties any Material Contract (including any Project Financing Document), rights or (iii) any Contract involving total consideration throughout claims of the Company or its term Subsidiaries in excess of $1,000,000 (except, in the case of the foregoing clauses (ii) and (iii), Contracts entered into in the ordinary course of business, consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing)5,000,000;
(kxix) waive entering into, materially adversely modifying or terminating any claims having a value in excess material agreement of $1,000,000, individually the Company or in the aggregateits Subsidiaries;
(lxx) make any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter entering into any partnership, joint venture, strategic alliance Affiliate transactions or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as related party transactions of the Effective Date;
(qtype that would require disclosure by the Company under Item 404(a) declare, set aside, make or pay any cash or nonof Regulation S-cash dividend or other distribution on or with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental AuthoritiesK; or
(txxi) agree or commit agreeing to do any of the foregoing.
(b) In the event that the Company seeks to take any of the actions set forth in Section 4.2(a) above, and at a duly called meeting of the Board of Directors, each of the Purchaser Nominees present at such meeting determines that it is in the best interests of the Company to vote in favor of any of the foregoing actions that would otherwise require the consent of the Purchaser pursuant to Section 4.2(a), and each Purchaser Nominee present at such meeting votes in favor of taking such action, as reflected in the written records of such meeting of the Board of Directors, by virtue of the affirmative vote by each such Purchaser Nominee, the Purchaser will be deemed to have consented to the taking of such action. Notwithstanding anything to the foregoingcontrary herein, Seller may permit any consent of the Acquired Companies Purchaser granted in accordance herewith will only apply to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt the specific instance of notice the taking of any such actionsaction and should the Company desire to take the same action again (or any other action pursuant to Section 4.2(a)), promptly inform Buyer the Purchaser’s consent rights set forth herein will once again apply and the taking of any such actions taken outside action by the ordinary course Company will be first subject to compliance with Section 4.2(a).
(c) The Purchaser Consent Rights will terminate at such time as the Purchaser beneficially owns less than 5,555,555 Common Shares (as adjusted for stock splits, stock dividends, subdivisions and combinations of businessCommon Shares); provided that the number of Common Shares beneficially owned by the Purchaser for purposes of this Section 4.2(c) will be determined by excluding any Common Shares underlying any unexercised portion of the Warrant then held by the Purchaser or any of its Affiliates.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Lebow Bennett S), Securities Purchase Agreement (Borders Group Inc)
Certain Restrictions. Except as required or permitted hereby, or as otherwise set forth in Schedule 6.3, during the Interim Period, Seller will cause refrain from:
(a) acquiring or disposing of any Assets and Properties used or held for use in the Acquired Companies and conduct of the Projects to operate Business, other than Inventory in the ordinary course of business and consistent with past practice. Without limiting practice and other acquisitions or dispositions not exceeding in either case $30,000 in the foregoingaggregate, except as otherwise set forth or creating or incurring any Lien, other than a Permitted Lien, on any Assets and Properties used or held for use in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as the conduct of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not to:
(a) permit or allow any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets or Interests, except with respect to the Interests as described in Section 3.4Business;
(b) grant entering into, amending, modifying, terminating (partially or completely), granting any waiver of any term under, exercise any option under, under or give giving any consent with respect to, to any Material ContractBusiness Contract or any material Business License;
(c) sellviolating, transferbreaching or defaulting under in any material respect, convey or otherwise dispose taking or failing to take any action that (with or without notice or lapse of time or both) would constitute a material violation or breach of, or default under, any term or provision of any material Purchased Assets outside the ordinary course of business as of the Effective DateBusiness Contract or any Business License;
(d) other than accounts payable incurred in the ordinary course of business incurring, purchasing, canceling, prepaying or otherwise incurred pursuant to the Material Contracts providing for a complete or short term, unsecured borrowings or intercompany loans or guarantees that are paid partial discharge in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations advance of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered scheduled payment date with respect to itto, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment waiving any right of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence inSeller under, any Liability of or owing to Seller in connection with the acts set forth in this Section 6.3(h);
(i) purchase any securities of any PersonBusiness, except for short-term investments made in the ordinary course of business;
(j) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of business, (ii) any Material Contract (including any Project Financing Document), or (iii) any Contract involving total consideration throughout its term in excess of $1,000,000 (except, in the case of the foregoing clauses (ii) and (iii), Contracts entered into in the ordinary course of business, business consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing);
(ke) waive engaging with any claims having Person in any Business Combination, unless such Person agrees in a value written instrument in excess form and substance reasonably satisfactory to Purchaser to adopt and comply with the terms and conditions of $1,000,000, individually or in the aggregatethis Agreement as though such Person was an original signatory hereto;
(lf) make engaging in any material election transaction with respect to Taxes;
(m) amend the Business with any officer, director, Affiliate or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost Associate of living increases consistent with past practiceSeller, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authorities; or
(t) agree or commit to do any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice Associate of any such actionsofficer, promptly inform Buyer of any such actions taken director or Affiliate, either outside the ordinary course of businessbusiness consistent with past practice or other than on an arm’s-length basis;
(g) making capital expenditures or commitments for additions to property, plant or equipment constituting capital assets on behalf of the Business in an aggregate amount exceeding $30,000; or
(h) entering into any Contract to do or engage in any of the foregoing.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (MFC Development Corp)
Certain Restrictions. Except as required or permitted hereby, or as otherwise set forth in Schedule 6.3on Section 4.07 of the Disclosure Schedule, during the Interim Period, Seller Sellers will cause the Acquired Companies and the Projects Company to operate in the ordinary course of business and consistent with past practice. Without limiting the foregoing, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not torefrain from:
(a) permit amending its limited partnership agreement (or allow other comparable corporate charter documents) or taking any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets or Interests, except action with respect to the Interests as described in Section 3.4any such amendment or any recapitalization, reorganization, liquidation or dissolution of any such limited partnership;
(b) grant any waiver authorizing, issuing, selling or otherwise disposing of any term under, exercise partnership interests or any option underOption with respect to the Company, or give modifying or amending any consent right of any holder of outstanding partnership interests of or Option with respect to, any Material Contractto the Company;
(c) selldeclaring, transfersetting aside or paying any dividend or other distribution in respect of the partnership interests of the Company not wholly owned by the Company, convey or directly or indirectly redeeming, purchasing or otherwise dispose acquiring any partnership interests of or any material Purchased Assets outside Option with respect to the ordinary course of business as of Company not wholly owned by the Effective DateCompany;
(d) other than accounts payable incurred in the ordinary course of business acquiring or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance disposing of, or indicating its consent to, approval of, or acquiescence inincurring any Lien on, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of any PersonAssets and Properties, except for short-term investments made in the ordinary course of business;
(j) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of businessbusiness consistent with past practice;
(e) (i) entering into, amending, modifying, terminating (partially or completely), granting any waiver under or giving any consent with respect to (A) any Contract that would, if in existence on the date of this Agreement, be required to be disclosed in the Disclosure Schedule pursuant to Section 2.18(a) or (B) any material License or (ii) granting any Material Contract irrevocable powers of attorney;
(including f) violating, breaching or defaulting under in any Project Financing Document)material respect, or taking or failing to take any action that (iiiwith or without notice or lapse of time or both) would constitute a material violation or breach of, or default under, any term or provision of any License held or used by the Company or any Contract involving total consideration throughout to which the Company is a party or by which any of its term respective Assets and Properties is bound;
(g) (i) incurring Indebtedness in the aggregate in excess of $1,000,000 10,000 or (exceptii) voluntarily purchasing, canceling, prepaying or otherwise providing for a complete or partial discharge in advance of a scheduled payment date with respect to, or waiving any right of the Company under, any Indebtedness of or owing to the Company, in the case aggregate in excess of the foregoing clauses $10,000;
(iih) and engaging with any Person in any merger or other business combination;
(iii)i) making capital expenditures or commitments for additions to property, Contracts entered into plant or equipment constituting capital assets, in the ordinary course aggregate in excess of business, consistent with past practice, $10,000;
(j) making any change in the lines of business in which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations it participates or liabilities following the Closing)is engaged;
(k) waive any claims having a value in excess of $1,000,000, individually writing off or in the aggregate;
(l) make any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to writing down any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice their Assets and directives from ERCOT and other Governmental Authorities; or
(t) agree or commit to do any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken Properties outside the ordinary course of businessbusiness consistent with past practice; or
(l) entering into any Contract to do or engage in any of the foregoing.
Appears in 2 contracts
Sources: Purchase Agreement (Viewpoint Corp), Purchase Agreement (Viewpoint Corp)
Certain Restrictions. Except (a) Notwithstanding anything to the contrary set forth herein, no Stockholder or Transferee (as required hereinafter defined in Section 2.5) shall directly or permitted herebyindirectly sell, assign, pledge, encumber, hypothecate or otherwise dispose of including any disposition by way of a statutory merger or consolidation involving a Stockholder that is not a natural person (collectively a "Transfer") any Shares at any time, unless any such Transfer shall have been effected in accordance with the terms of this Agreement.
(b) No Stockholder shall Transfer any Shares at any time if such action would constitute a violation of any federal or state securities or blue sky laws or a breach of the conditions to any exemption from registration of Shares under any such laws or a breach of any undertaking or agreement of such Stockholder entered into pursuant to such laws or in connection with obtaining an exemption thereunder. Each Stockholder agrees that any Shares to be received by such Stockholder pursuant to the Merger Agreement shall bear appropriate legends restricting the sale or other transfer of such stock in accordance with applicable federal or state securities or blue sky laws, as otherwise set forth in Schedule 6.3, during the Interim Period, Seller will cause the Acquired Companies and the Projects to operate in the ordinary course of business and consistent with past practice. Without limiting the foregoing, except Section 4.1 hereof.
(c) Except as otherwise set forth provided in Schedule 6.3this Agreement, required no Stockholder shall grant any proxy or permitted hereby enter into or required agree to be bound by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required voting trust with respect to any matter set forth in this Section 6.3 Shares nor shall any Stockholder enter into any stockholder agreements or elsewhere in arrangements of any kind with any person with respect to any Shares inconsistent with the provisions of this Agreement (whether or not such agreements and arrangements are with other Stockholders or holders of Shares who are not parties to the extent that the requirement of such consent would reasonably be expected to violate any applicable Lawthis Agreement), Seller will, during the Interim Period, cause the Acquired Companies not to:
(a) permit including agreements or allow any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets or Interests, except arrangements with respect to the Interests as described in Section 3.4;
acquisition, disposition or voting (bif applicable) grant any waiver of any term underShares, exercise nor shall any option underStockholder act, for any reason, as a member of a group or give in concert with any consent other persons in connection with respect tothe acquisition, any Material Contract;
disposition or voting (cif applicable) sell, transfer, convey or otherwise dispose of any material Purchased Assets outside the ordinary course of business as of the Effective Date;Shares in any manner which is inconsistent with this Agreement.
(d) other than accounts payable incurred in the ordinary course of business or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all None of the Assets restrictions contained in this Agreement with respect to Transfers of any other Person;
(g) issue or sell any equity ownership interests;
Shares shall apply to Transfers of Shares to (i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment affiliate of a receiverStockholder (as such term is defined in Rule 12b-2 under the Securities Exchange Act of 1934, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, as amended (the "Exchange Act")) thereof (an "Affiliate Transferee"); or (ii) make to members of a general assignment Stockholder's immediate family or his lineal descendants (a "Family Transferee"). Any such Affiliate Transferee or Family Transferee shall be considered a "Permitted Transferee" for purposes of this Agreement. Only in the benefit of its creditors, event such Affiliate Transferee or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any Family Transferee shall become an Affiliate of the acts set forth in this Section 6.3(h);
(i) purchase any securities Company as a result of any Personpermitted transfer hereunder, except for short-term investments made such Affiliate Transferee or Family Transferee shall agree in writing to be bound by the ordinary course terms of business;
(j) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of business, (ii) any Material Contract (including any Project Financing Document), or (iii) any Contract involving total consideration throughout its term in excess of $1,000,000 (except, in the case of the foregoing clauses (ii) and (iii), Contracts entered into in the ordinary course of business, consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing);
(k) waive any claims having a value in excess of $1,000,000, individually or in the aggregate;
(l) make any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing this Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authorities; or
(t) agree or commit to do any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of business.
Appears in 2 contracts
Sources: Stockholders' Agreement (Rezconnect Technologies Inc), Stockholders' Agreement (YTB International, Inc.)
Certain Restrictions. (a) Except as required or permitted hereby, or as otherwise set forth in Schedule 6.3the Transition Services Agreement and as set forth in Section 6.14 of the Seller Disclosure Letter, during the Interim Period, Seller will unless otherwise expressly contemplated by this Agreement, the Sellers shall cause the Acquired Companies each Transferred Company to, and the Projects to each Transferred Company shall be permitted to, operate in the ordinary course of business and and, to the extent applicable, consistent with past practice. Without limiting , to maintain the foregoingassets of each Transferred Company in the ordinary course of business consistent with the terms of this Agreement, to pay all accounts payable and other obligations, when they become due and payable, in the ordinary course of business consistent with the provisions of this Agreement, except if the same are contested in good faith, and to perform its obligations and exercise its rights under any Material Contract.
(b) During the applicable Interim Period, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract the Transition Services Agreement and as set forth in effect as Section 6.14 of the Effective Date or amended as permitted hereby or as consented Seller Disclosure Letter, each of the Sellers shall refrain from taking, and shall cause each Transferred Company to by Buyerrefrain from taking, any of the following actions without the Buyers’ prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict delayed):
(i) entering into any Contract that would be a Material Contract if in existence on the transfer date hereof or amending, modifying or terminating (partially or completely) or waiving any material provision of Excluded Itemsany Material Contract other than as required by Section 6.12, or entering into any other new Contracts that involve, collectively with all such other new Contracts, payments or other consideration in excess of $350,000;
(ii) the termination incurring, assuming, guaranteeing, or assignment of Excluded Contracts, (iii) the taking otherwise becoming liable in respect of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions obligation or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth Liability except in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not to:
(a) permit or allow any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets or Interests, except with respect to the Interests as described in Section 3.4;
(b) grant any waiver of any term under, exercise any option under, or give any consent with respect to, any Material Contract;
(c) sell, transfer, convey or otherwise dispose of any material Purchased Assets outside the ordinary course of business or that is required for a Transferred Company to fulfill its obligations under any Material Contract (or to preserve any rights or obligations thereunder) and, to the extent applicable, consistent with past practice, but in no instance resulting in any Liability or any Lien other than a Permitted Lien exceeding $100,000 in any individual transaction, or in the aggregate an amount in excess of $250,000;
(iii) selling, leasing, transferring or disposing of or acquiring, or entering into any Contract for the sale, lease, transfer or disposition or acquisition of, any assets or properties, other than in the ordinary course of business or that is required for a Transferred Company to fulfill its obligations under any Material Contract (or to preserve any rights or obligations thereunder) and, to the extent applicable, consistent with good operating practice so long as, other than with respect to consumables, the same are replaced with items of value, utility and useful life at least equal to that of the item removed as of the Effective Date;
(div) changing in any material respect any Transferred Company’s accounting methods or practices other than accounts payable incurred in the ordinary course of business or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Personas required by GAAP;
(ev) except as may be required to meet the requirements of applicable Laws or GAAP, change revaluing any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assetsassets or properties, including writing down the value of inventory or (ii) make a general assignment for the benefit of its creditors, writing off notes or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of any Person, except for short-term investments made in the ordinary course of business;
(j) enter into, terminate or amend (i) any Material Permit accounts receivable other than in the ordinary course of businessbusiness and, (ii) any Material Contract (including any Project Financing Document), or (iii) any Contract involving total consideration throughout its term in excess of $1,000,000 (except, in to the case of the foregoing clauses (ii) and (iii), Contracts entered into in the ordinary course of businessextent applicable, consistent with past practicepractice or as required by GAAP;
(vi) failing to maintain insurance coverage substantially equivalent to its existing insurance coverage of their Properties as in effect on the date hereof unless such insurance coverage is not available on commercially reasonable terms; or
(vii) agreeing or committing in writing to do or engage in any of the foregoing.
(c) During the applicable Interim Period each of the Sellers shall refrain from taking, and shall cause each Transferred Company to refrain from taking, any of the following actions without the Buyers’ prior written consent (which will consent may be fully performed prior to Closing and under which granted or withheld in the Acquired Companies will have no further obligations Buyers’ sole discretion):
(i) amending any Transferred Company Operating Documents or liabilities following the Closingundertaking a recapitalization, reorganization, liquidation, dissolution or winding up of any Transferred Company except as required by Section 2.6(l);
(kii) waive any claims having a value in excess of $1,000,000, individually or in the aggregate;
(l) make any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter entering into any partnershipagreement, joint venturenegotiation, strategic alliance conversation or similar contract otherwise soliciting or arrangement;
(p) increase discussing the compensation payable merging or to become payable consolidating of any Transferred Company with any other Person or the benefits provided to the Transferrable Project Employees, disposing of any Transferred Company or Projects except (i) to the extent as required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing AgreementSection 2.6(l);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authorities; or
(tiii) agree taking, or agreeing to commit to do take, any action that would result in any of the foregoing. Notwithstanding conditions to any Closing of the foregoing, Seller may permit transactions contemplated by this Agreement not being satisfied or that would impair the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice ability of any such actions, promptly inform Buyer Seller to consummate or delay the consummation of any such actions taken outside the ordinary course of businesstransactions contemplated by this Agreement in accordance with the terms hereof.
Appears in 2 contracts
Sources: Securities Purchase Agreement (TerraForm Power, Inc.), Securities Purchase Agreement (TerraForm Power, Inc.)
Certain Restrictions. Except as required or permitted herebyEach Seller, or as otherwise set forth in Schedule 6.3, during the Interim Period, Seller will cause the Acquired Companies and the Projects to operate in the ordinary course of business and consistent with past practice. Without limiting the foregoing, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required solely with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that Business and the requirement APX Continuing Business, will refrain from, without the consent of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not toInstitutional Stockholder:
(a) permit permitting any Limited Company or allow APX-Brazil to amend, modify or repeal any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any provision of the Purchased Assets or Interestsits charter, except with respect to the Interests as described in Section 3.4articles of incorporation, by-laws and similar organizational documents;
(b) grant any waiver authorizing, granting, issuing, selling or otherwise disposing of any term under, exercise shares of the capital stock of any option underLimited Company or APX-Brazil or any Option with respect to their respective capital stock, or give modifying or amending any consent with respect to, right of any Material Contractholder of outstanding shares of their respective capital stock;
(c) selldeclaring, transfersetting aside or paying any dividend or other distribution in respect of the Limited Stock or the APX-Brazil Stock, convey or directly or indirectly redeeming, purchasing or otherwise dispose of acquiring any material Purchased Assets outside the ordinary course of business as of the Effective DateLimited Stock or the APX-Brazil Stock;
(d) other than accounts payable incurred in the ordinary course permitting any Limited Company or APX-Brazil to enter into any transaction of business merger or otherwise incurred pursuant to the Material Contracts consolidation or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations sale of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets assets of any other Person;
(g) issue Limited Company or sell any equity ownership interests;
APX-Brazil or causing or permitting (i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, the liquidation, dissolutiondissolution or reorganization of MSX, composition any Limited Company or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, APX-Brazil or (ii) make a general assignment for the benefit liquidation, dissolution or reorganization of MascoTech which would affect its creditorsability to consummate the transactions contemplated hereunder;
(e) conveying, selling, transferring or take otherwise disposing of any action in furtherance of, or indicating its consent to, approval of, or acquiescence inassets of the Sellers relating to the Business, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities assets of the APX Continuing Business or of any Limited Company or APX-Brazil, in each case having a book value in excess of $350,000, in a single transaction or in a series of related transactions, to or with any Person; provided, except for short-term investments made however, that the foregoing will not prohibit the sale of inventory in the ordinary course of business;
(jf) enter pledging, mortgaging or otherwise encumbering any of the APX Assets, the assets of the Sellers relating to the Business or the APX Continuing Business or of any Limited Company or APX-Brazil, other than purchase money liens on items the purchase of which is permitted hereunder;
(g) incurring, issuing, assuming or guarantying, or permitting any of the Limited Companies or APX-Brazil to incur, issue, assume or guaranty, any material Funded Indebtedness;
(h) entering into, terminate or amend (i) terminating, or permitting any of the Limited Companies or APX-Brazil to enter into or terminate, any Material Permit Contract, or amending, waiving or terminating, or permitting any of the Limited Companies or APX-Brazil to amend, waive or terminate, any material provision of any Material Contract other than any such entering into, amendment, waiver or termination effected in the ordinary course of business, ;
(iii) any Material Contract (including acquisition by a Seller relating to the Business or the APX Continuing Business or by any Project Financing Document)Limited Company or APX-Brazil of securities or assets, in a single transaction or (iii) any Contract involving total a series of related transactions, for consideration throughout its term in excess of $1,000,000 150,000;
(exceptj) waiving, terminating, amending, supplementing or modifying in the case any respect any of the foregoing clauses (ii) terms of the APX Purchase Agreement, or any of the obligations of any Seller, Shareholder or Guarantor thereunder provided that, after January 31, 1997, no consent of the Institutional Stockholder shall be required with respect to, and (iii)the Sellers shall be permitted to, Contracts entered into negotiate and finalize, the purchase price adjustment described in Sections 2.3 and 2.4 of the ordinary course of business, consistent APX Purchase Agreement so long as such actions by the Sellers are undertaken in good faith and after consultation with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing)Institutional Stockholder;
(k) waive except to the extent contemplated under, and pursuant to, the terms of this Agreement, adopting, or permitting any claims having a value Limited Company or APX-Brazil to adopt, pension plans, profit sharing plans or other benefit plans for employees and/or officers of the Sellers, in excess connection with the Business and the APX Continuing Business, the Limited Companies or APX-Brazil, other than the adoption or documentation of $1,000,000, individually such plans as are necessary or desirable (i) to permit MSX to comply with its covenants made in connection with the APX Acquisition respecting replacement of Employee Benefit Plans in the aggregateAPX Continuing Business and (ii) to permit MSX to document its severance practices with respect to the Business and the APX Continuing Business;
(l) make engaging in any material election with respect to Taxes;
(m) amend practice, taking any action, or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter entering into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authorities; or
(t) agree or commit to do any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken transaction outside the ordinary course of businessbusiness consistent with past practice that would have a Material Adverse Effect or a material adverse effect on the ability of the Sellers to consummate the transactions contemplated by this Agreement and the Operative Agreements; and
(m) entering into any agreement, arrangement, commitment or understanding to do or engage in any of the foregoing.
Appears in 2 contracts
Sources: Acquisition Agreement (Mascotech Inc), Acquisition Agreement (MSX International Business Services Inc)
Certain Restrictions. Except as required or permitted hereby, or as otherwise set forth in Schedule 6.37.3, during the Interim Period, Seller will cause the Acquired Companies and the Projects to operate in the ordinary course Ordinary Course of business and consistent with past practiceBusiness. Without limiting the foregoing, except as otherwise set forth in Schedule 6.37.3 and/or in the Ordinary Course of Business, as required or expressly permitted hereby or required by applicable Laws or any Material Contract in effect as other provisions of the Effective Date or amended as permitted hereby this Agreement or as consented to by BuyerPurchaser, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law)delayed, Seller will, during the Interim Period, cause the Acquired Companies not to:
(a) create, permit or allow any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets material assets or Interestscreate, except with respect permit or allow any Encumbrances to be imposed on or against any of the Interests as described in Section 3.4Interest;
(b) grant any waiver of any material term under, exercise any option under, or give any consent with respect to, under any Material Contract or any Land Contract;
(c) sell, transfer, convey convey, assign, distribute, remove or otherwise dispose of any material Purchased Assets assets outside the ordinary course Ordinary Course of business as of the Effective DateBusiness;
(d) other than (i) accounts payable incurred in the ordinary course Ordinary Course of business Business or otherwise incurred pursuant to the Material Contracts or (ii) short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have result in a material and adverse impact on the Acquired Companies, taken as a wholeMaterial Adverse Effect;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets assets of any other Person;
(g) issue authorize, issue, transfer, dispose, sell or sell grant any equity ownership interestsoptions, warrants, calls or other rights to purchase or otherwise acquire any Equity Securities of any Acquired Company;
(ih) commence any caseliquidate, proceeding dissolve, recapitalize, reorganize or other action under any existing otherwise wind up its business or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this Section 6.3(h)operations;
(i) purchase any securities of any Person, except for short-term investments made in the ordinary course Ordinary Course of businessBusiness;
(j) enter into, terminate terminate, modify or amend (i) any Material Permit other than in the ordinary course of businessmaterial Permit, (ii) any Material Contract (including any Project Financing Document)Contract, or (iii) any Contract involving total consideration throughout its term in excess of Five Hundred Thousand Dollars ($1,000,000 500,000) (except, in the case of the foregoing clauses (ii) and (iii), other than Contracts entered into in the ordinary course Ordinary Course of business, consistent with past practice, Business which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing);
(k) waive any claims having a value in excess of Two Hundred Fifty Thousand Dollars ($1,000,000250,000), individually or in the aggregate;
(l) make any material election with respect to TaxesTaxes not required by applicable Law that could have a continuing effect on the relevant Acquired Company following the Closing Date;
(m) amend or modify its Organizational Documents;
(n) commence enter into any joint venture, strategic alliance, exclusive dealing, noncompetition or settle any Claimsimilar contract or arrangement that affects the Acquired Companies or the Project;
(o) enter into hire any partnership, joint venture, strategic alliance employees or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to adopt any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental AuthoritiesPlan; or
(tp) agree or commit to do any of the foregoing. Notwithstanding the foregoing, Seller may permit any of the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer Purchaser of any such actions taken outside the ordinary course Ordinary Course of businessBusiness.
Appears in 2 contracts
Sources: Purchase and Sale Agreement, Purchase and Sale Agreement (NextEra Energy Partners, LP)
Certain Restrictions. Except From the date of this Agreement through the Closing Date, except (i) as required or permitted herebycontemplated by this Agreement, or (ii) as otherwise set forth in Section 7.2 of Sellers’ Disclosure Schedule 6.3, during (iii) with the Interim Period, Seller prior written consent of Buyer (which will cause the Acquired Companies and the Projects to operate in the ordinary course of business and consistent with past practice. Without limiting the foregoing, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Itemsdelayed), (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) with the termination prior approval of the services contemplated by Section 6.8Bankruptcy Court, Sellers will, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not Included Subsidiaries to, refrain from:
(a) permit or allow any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets or Interests, except with respect to the Interests as described in Section 3.4;
(b) grant any waiver of any term under, exercise any option under, or give any consent with respect to, any Material Contract;
(c) sell, transfer, convey or otherwise dispose of any material Purchased Assets outside the ordinary course of business as of the Effective Date;
(d) other than accounts payable incurred in the ordinary course of business or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of any Person, except for short-term investments made in the ordinary course of business;
(j) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of business, disposing of, or incurring any Lien (iiother than Permitted Liens) on, any Material Contract Purchased Assets;
(including b) authorizing, issuing, selling or otherwise disposing of any Project Financing Documentshares of, or securities convertible into or exchangeable or exercisable for, or any Option with respect to any shares of, capital stock of any Included Subsidiary, or modifying or amending any right of any holder of outstanding shares of capital stock or share capital of, or Option with respect to, any Included Subsidiary;
(c) amending any Charter Documents of any Included Subsidiary, or taking any action with respect to any such amendment or any merger, consolidation, recapitalization, reorganization, liquidation or dissolution of Sellers or any such Included Subsidiary;
(d) other than in the ordinary course of business, entering into, amending, modifying, terminating (partially or completely), granting any waiver under or giving any consent with respect to any Purchased Contract that is material to the Business;
(iiie) granting any Contract involving total consideration throughout its term material increase in excess the fringe benefits or compensation payable or to become payable by Sellers or any Included Subsidiary to any executive officer or director of $1,000,000 the Company;
(f) adopting, amending or otherwise materially increasing, or accelerating the payment or vesting of the amounts payable or to become payable to any executive officer or director of the Company under any existing Benefit Plan;
(g) entering into or amending in any material respect any existing employment or severance agreement with, or, except in accordance with the existing written policies of the Company or existing Contracts, granting any severance or termination pay to, any executive officer or director of the Company;
(h) entering into any commitment for capital expenditures, except as contemplated by the capital budget previously furnished to Buyer by the Company as attached as Schedule 7.2(h);
(i) incurring any additional Indebtedness, except, in the case of the foregoing clauses (ii) Company, as set forth in and (iii)permitted under the DIP Loan Agreement and, Contracts entered into in the ordinary course case of businessthe Included Subsidiaries, consistent with past practiceas set forth in and permitted under any existing credit facilities of the Included Subsidiaries;
(j) paying any dividends or incurring any intercompany accounts payable, which will other than intercompany accounts payable to an Excluded Subsidiary or that would be fully performed prior discharged pursuant to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing);Section 7.11; or
(k) waive any claims having a value in excess of $1,000,000, individually or in the aggregate;
(l) make any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authorities; or
(t) agree or commit agreeing to do any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of businessanything prohibited by this Section 7.2.
Appears in 1 contract
Sources: Acquisition Agreement (Proliance International, Inc.)
Certain Restrictions. Except as expressly required or expressly permitted hereby, or as otherwise set forth in Schedule 6.3, during the Interim Period, Seller will cause the Acquired Companies Newington Energy and the Projects Project to operate and be maintained in the ordinary course of business (including with respect to capital expenditures), without contravention of any Material Contract and consistent in accordance with past practicegood utility practices and Permits applicable to it, and in accordance, in all material respects, with all Laws. Seller will also cause Newington Energy to take all commercially reasonable actions as may be necessary to maintain the Project’s market-based rate authority and its status as an “Exempt Wholesale Generator”. Without limiting the foregoing, except as otherwise set forth in on Schedule 6.3, except as otherwise expressly required or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as expressly permitted hereby or as expressly consented to by Buyer, Buyer in writing (which consent with respect to clauses (b), (g), (q) and (r) below, shall not be unreasonably withheldwithheld or delayed), conditioned or delayed (and except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination apply to Terminated Contracts or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below services terminated pursuant to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law)6.6, Seller will, during the Interim Period, cause the Acquired Companies Newington Energy not to:
(a) permit or allow to exist any Encumbrances Lien (other than a Permitted EncumbrancesLien) to be imposed on or against any of the Purchased Assets or Membership Interests, except with respect to the Interests as described in Section 3.4;
(b) grant any waiver of any term under, exercise any option under, or give any consent with respect to, any Material ContractContract (other than consents in connection with day-to-day operations under such Material Contract granted in the ordinary course of business consistent with past practice);
(c) sell, lease, transfer, convey convey, remove, assign, salvage, or otherwise dispose of any material Purchased Assets (including emission credits and allowances) in excess of $100,000 in the aggregate or outside the ordinary course of business as of the Effective Dateconsistent with past practice;
(d) other than accounts payable incurred in the ordinary course of business or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or changes in GAAP, change any financial or tax accounting method method, principle or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a wholeor change an annual accounting period;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue except for capital expenditures for which neither Buyer nor its Affiliates will have any obligation on or sell following the Closing, authorize or make any equity capital expenditure or acquire any property or Asset of any other Person that, in the aggregate is in excess of 10% over the aggregate amount of the current capital expenditure budget for the Project;
(h) (i) issue, sell, grant, pledge, dispose of, transfer or encumber any shares of its capital stock, other securities, rights of any kind or ownership interestsinterest, or any securities or rights convertible into, exchangeable or exercisable for, or evidencing the right to subscribe for, any shares of its capital stock, other securities, rights of any kind or ownership interest, or any rights, warrants or options to purchase any shares of its capital stock, other securities, rights of any kind or ownership interest, or any securities or rights convertible into, exchangeable or exercisable for, or evidencing the right to subscribe for, any shares of its capital stock, other securities, rights of any kind or ownership or interest; (ii) redeem, purchase or otherwise acquire any of its outstanding shares of capital stock, or any rights or options to acquire any shares of its capital stock; or (iii) split, combine, subdivide or reclassify any shares of its capital stock;
(i) commence any caseliquidate, proceeding dissolve, recapitalize, reorganize or other action under any existing otherwise wind up its business or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this Section 6.3(h)operations;
(ij) purchase any securities of any Person, except for short-term investments made in the ordinary course of business;
(jk) except with respect to any Contract under which performance will be completed prior to Closing and with respect to which neither Buyer nor its Affiliates will have any obligation on or following the Closing, enter into, terminate terminate, replace, extend, renew, fail to enforce any right under, or amend (i) any Material Permit other than in the ordinary course of business, (ii) any Material Contract (including any Project Financing Document), or (iii) any Contract involving sale or purchase of energy, capacity, ancillary services or fuel (or physical or financial ▇▇▇▇▇▇ in respect of any of the foregoing) or involving a total consideration or involving indemnification throughout its term in excess of $1,000,000 or which restricts its ability to compete (except, in other than Contracts for the case purchase of the foregoing clauses (ii) and (iiiequipment which are governed solely by Section 6.3(o), Contracts entered into in the ordinary course of business, consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing);
(kl) cancel, forgive or release any debts owed to Newington Energy or waive any claims or rights having a value in excess of $1,000,000, individually 1,000,000 or fail to pay its bills in the aggregateordinary course of business consistent with past practice;
(lm) make make, amend or revoke any material election with respect to Taxes;
(mn) amend or modify its Organizational Documents;
(n) commence Charter Documents or settle grant any Claimpower of attorney;
(o) purchase any individual item of equipment involving total consideration in excess of $5,000,000 (other than purchases in the ordinary course of business which will be fully paid prior to Closing); provided that Seller in its sole discretion and without the consent of Buyer may cause Newington Energy to enter into any partnershipsuch purchase so long as Seller first executes and delivers to Buyer a written agreement obligating Seller, joint ventureat Seller’s expense, strategic alliance to cause any payments and other performance required of Newington Energy pursuant to such purchase after the Closing to be paid by Seller and performed at the expense of Seller (or similar contract to advance to Buyer for Buyer’s payment or arrangementperformance of same) when and as such payments or other performance becomes due pursuant to such purchase;
(p) increase the compensation payable waive, file, institute, commence, compromise or to become payable settle any material Claim or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or investigation by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make hire any consultant (unless pursuant to a contract which is terminable upon 90 days’ notice) or pay any cash or non-cash dividend or other distribution on or with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement)employee;
(r) enter into on the date immediately prior to the Closing Date, make any Contract with any Related Partydeterminations as to whether or not to dispatch the Project without Buyer’s written consent therefor;
(s) delay, defer, reduce take any action or otherwise alter in omit to take any action that would reasonably be likely to cause a material respect any capital expenditures in a manner not consistent with the capital budget breach of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental AuthoritiesSections 4.10 or 4.21; or
or (t) agree or commit to do any of the foregoing. Notwithstanding the foregoing, without the prior consent of Buyer, (i) Seller may permit the Acquired Companies Newington Energy to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken outside taken, and (ii) the ordinary course of businessmaximum available amount under the Support Obligations may be increased, and additional Support Obligations may be furnished, subject to and in accordance with Section 6.5(d)(iii).
Appears in 1 contract
Sources: Purchase and Sale Agreement (Consolidated Edison Inc)
Certain Restrictions. Except as required or permitted herebyFrom the date of this Agreement until the Closing, or as otherwise each Seller (with respect to itself solely) shall and shall cause its applicable Affiliates to refrain from taking any of the following actions in respect of the Business, the Purchased Assets and the Assumed Liabilities, except (a) with respect to those matters set forth in Schedule 6.3, during on Section 6.03 of the Interim Period, Seller will cause the Acquired Companies and the Projects to operate in the ordinary course of business and consistent with past practice. Without limiting the foregoing, except Disclosure Schedule; (b) as otherwise set forth in Schedule 6.3, required or permitted hereby or expressly required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, this Agreement; (c) with Purchaser’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Lawdelayed), Seller will, during the Interim Period, cause the Acquired Companies not to:
(a) permit or allow any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets or Interests, except with respect to the Interests as described in Section 3.4;
(b) grant any waiver of any term under, exercise any option under, or give any consent with respect to, any Material Contract;
(c) sell, transfer, convey or otherwise dispose of any material Purchased Assets outside the ordinary course of business as of the Effective Date;
; (d) other than accounts payable incurred as required by Law or the terms of any Permit; or (e) transactions in the ordinary course of business which are consistent with past business practices, but only with respect to transactions occurring after October 3, if the Closing does not occur on or otherwise incurred before October 3:
(i) failing to maintain the Records in accordance with past custom and practice;
(ii) incurring any Liens or permitting any Liens to be imposed on any Purchased Assets and properties (other than Permitted Liens);
(iii) acquiring any assets or properties or disposing of any assets or properties of Seller, in either case, solely to the extent that such assets or properties constitute (or would constitute at the Closing) Purchased Assets and except for acquisitions in the ordinary course of business;
(iv) entering into, amending, modifying or terminating (partially or completely and other than pursuant to the expiration of the term thereof) in any material respect outside of the ordinary course of business any Material Contracts Contract (or short termany Contract that, unsecured borrowings if in existence on the date of this Agreement would have been required to be disclosed on Section 3.15(a) of the Seller Disclosure Schedule), other than, in each case, the entering into, amendment, modification or intercompany loans termination (whether partial or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations complete) of any other Personhedging arrangements;
(ev) incurring Indebtedness, except (A) as would not constitute an Assumed Liability or (B) as is repaid or discharged by Seller or its Affiliates at or prior to Closing;
(vi) making capital expenditures or commitments for additions to property, plant or equipment constituting capital assets in excess of $1,000,000; provided, however, that such an expenditure or commitment shall be permissible if determined, in Seller’s reasonable discretion, to be necessary to prevent detriment to the Business.
(vii) canceling, compromising, settling, assigning or transferring any dispute or claim that would reasonably be expected to result in a non-current liability exceeding $500,000 becoming due from Purchaser after the Closing or restrictions or limitations that materially and adversely affect Purchaser’s ability to conduct the Business after the Closing;
(viii) except as may be required to meet the requirements of applicable Laws Law or GAAP, change changing any accounting method or practice in a manner that is inconsistent with past practice practices in a way that would reasonably be expected to have a material materially and adverse impact on adversely affect the Acquired Companies, taken as a wholeBusiness;
(fix) fail failing to maintain its existence or consolidate or merge insurance coverage substantially equivalent to the insurance coverage currently maintained with any other Person or acquire all or substantially all of respect to the Assets of any other PersonPurchased Assets;
(gx) issue amending any Material Permit, or sell agreeing to a stipulation or settlement with a Governmental Authority relating to any equity ownership interestsMaterial Permit, other than routine renewals that do not impose additional material limitations on the Business;
(ixi) commence entering into, amending or modifying any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment Support Obligation in a manner that would result in the aggregate outstanding amount of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment Support Obligations maintained for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any the Business as of the acts set forth in Closing being increased by more than $5,000,000 as compared to the aggregate outstanding amount of Support Obligations maintained for the benefit of the Business with respect to the Purchased Assets as of the date of this Agreement, which aggregate outstanding amount is reflected on Section 6.3(h)6.08 of the Seller Disclosure Schedule;
(xii) other than changes to wages occurring in the ordinary course of business or as required by applicable Law, Contract or an existing Seller Employee Plan: (A) increasing or accelerating the payment of the wages, salaries, compensation, pension or other benefits payable by Seller or any of its Affiliates to any Business Employee, other than (i) purchase for changes to Seller Employee Plans sponsored or maintained by Seller or its Affiliates and that apply to substantially all similarly situated employees of Seller and its Affiliates who are not Business Employees and (ii) for the avoidance of doubt, for reasonable annual bonuses paid to employees consistent with past practices; (B) entering into or amending any securities employment, severance, change in control, retention or similar agreement with any Business Employee, other than as required by this Agreement; (C) except in the ordinary course of business, terminating (other than for cause) the employment of or promoting or materially changing the job function of any PersonBusiness Employee; (D) except in the ordinary course of business, except for short-term investments made hiring any additional Business Employees, but excluding transfers of currently employed Business Employees among the Seller and their Affiliates as reasonably necessary to facilitate consummation of the transactions contemplated by this Agreement; or (E) other than in accordance with Section 8.04(b), entering into, amending or modifying any collective bargaining agreement covering Business Employees;
(xiii) allowing the Business to engage in any material new line of business, or making any material change in the conduct of the Business, including, without limitation, failing to maintain levels of display model Inventory consistent with past practice at Seller’s sales centers located in Marion, Indiana and Parkville, New York;
(xiv) selling, transferring, conveying or otherwise disposing of any Purchased Assets other than dispositions of obsolete Tangible Personal Property or in the ordinary course of business;
(jxv) enter into, terminate or amend (i) deferring any Material Permit other than in the ordinary course of business, (ii) scheduled major maintenance on any Material Contract (including any Project Financing Document), or (iii) any Contract involving total consideration throughout its term in excess of $1,000,000 (except, in the case of the foregoing clauses (ii) and (iii), Contracts entered into in the ordinary course of business, consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing)Purchased Asset;
(kxvi) waive purchasing any claims having a value in excess equity securities of $1,000,000, individually or in the aggregateany Person that would become Purchased Assets;
(lxvii) make changing or modifying any material credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or any material failure to pay or delay payment of payables or other liabilities;
(xviii) making or changing any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle , filing any Claim;
(o) enter material Tax Return that is inconsistent with the past practices of Seller with respect to the Business and the Purchased Assets, entering into any partnership, joint venture, strategic alliance closing or similar contract agreement with respect to Taxes, surrendering any right to a refund of Taxes, consenting to any extension or arrangement;
(p) increase waiver of the compensation payable limitation period applicable to any material Tax claim or assessment, or failing to pay any material Taxes as such Taxes become payable or the benefits provided to the Transferrable Project Employeesdue and payable, except (i) in each case, to the extent required by applicable Law such action would reasonably be expected to have any adverse effect on any Purchased Asset or by a Governmental Authority, (ii) for normal merit and cost Assumed Liability of living increases consistent with past practice, Purchaser or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental AuthoritiesAffiliates; or
(txix) agree agreeing or commit committing to do or engage in any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of business.
Appears in 1 contract
Certain Restrictions. Except as required or permitted hereby, or as otherwise set forth in Schedule 6.3, during (a) During the Interim Period, Seller will cause the Acquired Companies and the Projects to operate in the ordinary course of business and consistent with past practice. Without limiting the foregoing, except as otherwise set forth in Section 6.02(a) of the Company Disclosure Schedule 6.3or unless otherwise contemplated by this Agreement, required or permitted hereby or the Company (w) will operate and maintain its business in the Ordinary Course of Business, (x) will use commercially reasonable efforts to maintain the ordinary and customary relationships of the Company with its suppliers, customers, key employees and others having material business relationships with it, and (y) except as required by applicable Laws or Applicable Law, will not take any Material Contract in effect as of the Effective Date following actions unless either (i) expressly required by this Agreement or amended (ii) as permitted hereby or as consented to by Buyerset forth in Section 6.02(a) of the Company Disclosure Schedule, without Parent’s consent (which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not to:
(a) permit or allow any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets or Interests, except with respect to the Interests as described in Section 3.4;
(b) grant any waiver of any term under, exercise any option under, or give any consent with respect to, any Material Contract;
(c) sell, transfer, convey or otherwise dispose of any material Purchased Assets outside the ordinary course of business as of the Effective Date;
(d) other than accounts payable incurred in the ordinary course of business or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interests;delayed):
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of any Person, except for short-term investments made in the ordinary course of business;
(j) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of business, (ii) any Material Contract (including any Project Financing Document), or (iii) any Contract involving total consideration throughout its term in excess of $1,000,000 (except, in the case of the foregoing clauses (ii) and (iii), Contracts entered into in the ordinary course of business, consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing);
(k) waive any claims having a value in excess of $1,000,000, individually or in the aggregate;
(l) make any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash distribution in respect of the Equity Interest of the Company or non-cash dividend repurchase, redeem or otherwise acquire any outstanding Units or other distribution on securities of, or with respect other ownership interests in, the Company;
(ii) transfer, issue, sell or dispose of any Units or other Equity Interests of the Company or grant Equity Interests of the Company;
(iii) amend its Organizational Documents or undertake, declare or effect any recapitalization, reclassification, reorganization, stock split, liquidation, dissolution or winding up;
(iv) take any action that would result in the Company having any Subsidiaries;
(v) acquire, dispose, exchange or lease to any other Person any real property or other material Properties of its ownership interests the Company or incur any Liens or permit any Liens to be imposed on any Property of the Company other than Permitted Liens, other than in the Ordinary Course of Business;
(vi) enter into, amend, modify or terminate (partially or completely) any (A) Material Contract, (B) Contract that would constitute a Material Contract if entered into prior to the date of this Agreement, or (C) Contract with a Key Customer or material supplier, except, in each case of (A), (B) and (C), in the Ordinary Course of Business;
(vii) incur any Indebtedness other than Company Tax Liability;
(viii) make any loans or advances to, or any investments in or capital contributions to, any Person, or forgive or discharge in whole or in part any outstanding loans or advances, or prepay any indebtedness for borrowed money (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined routine advancement of expenses or commissions to managers, officers, consultants or employees in the Project Financing AgreementOrdinary Course of Business);
(rix) merge, fail to maintain its legal existence or consolidate with any other Person, or acquire capital stock or assets of any other Person or enter into any Contract with any Related Partyrespect to a joint venture, strategic alliance or partnership;
(sx) delaychange the Company’s methods of accounting, deferexcept to the extent required by changes in GAAP;
(xi) (A) make (outside the Ordinary Course of Business), reduce change or otherwise alter rescind any material Tax election; (B) settle or compromise any claim, audit, assessment or dispute relating to Taxes in excess of the amount reserved with respect thereto in the YTD Financial Statements; (C) file any material amended Tax Return; (D) make any change in any material respect method of Tax accounting or material Tax accounting periods; (E) knowingly surrender any claim for a refund of Taxes; (F) enter into any closing agreement with a Governmental Authority relating to any Tax; (G) file any material Tax Return except as in accordance with past practice or in the Ordinary Course of Business; or (H) consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment (other than pursuant to extensions of time to file Tax Returns obtained in the Ordinary Course of Business);
(xii) make or enter into any commitment for any capital expenditures outside the Ordinary Course of Business;
(xiii) commence any lawsuit or legal proceedings or pay or agree to pay in settlement or compromise of any suits or claims of liability against the Company;
(xiv) grant, extend, waive or modify any material rights in or to, or sell, assign, lease, license, transfer, let lapse, abandon or otherwise dispose of, any material Properties of the Company (including any Company IP), other than grant non-exclusive licenses in the Ordinary Course of Business to customers, suppliers, distributors and contractors;
(xv) disclose to any third party any Trade Secrets included in the Company IP in a way that results in the loss of protection for such Trade Secrets;
(xvi) except as required pursuant to the terms of any Company Plan in effect as of the date hereof, or as required under Applicable Laws, (A) increase the compensation or consulting fees, bonus opportunity, pension, welfare, fringe or other benefits, severance or termination pay of any of the current or former managers, officers, employees or consultants of the Company, (B) become a party to, establish, adopt, amend, commence participation in or terminate any Company Plan or any arrangement that would have been a Company Plan had it been entered into prior to this Agreement, (C) hire any employee or engage any independent contractor (who is a natural person), except to fill a vacant position with an annual salary or wage rate or consulting fees and target cash bonus opportunity in not excess of $100,000, (D) terminate the employment of any executive officer or manager other than for cause, (E) grant any new equity awards, or amend or modify the terms of any outstanding equity awards under any Company Plans, (F) take any action to accelerate the vesting or lapsing of restrictions or payment, or fund or in any other way secure the payment of, compensation or benefits under any Company Plan or (G) forgive any loans or issue any loans (other than routine advances of expenses or commissions issued in the Ordinary Course of Business) to any of its managers, officers, consultants or employees;
(xvii) become a party to, establish, adopt, amend, commence participation in or terminate any collective bargaining agreement or other agreement with a labor union, works council or similar organization;
(xviii) cancel or terminate any material insurance policy or cause any of the coverage thereunder to lapse (unless simultaneously with such termination, cancellation or lapse, replacement policies providing coverage equal to or greater than the coverage under the canceled, terminated or lapsed policies, for premiums at not more than current market rates, are in full force and effect);
(xix) accelerate the collection of receivables or delay the payment of payables of the Company in a manner not consistent inconsistent with the capital budget Ordinary Course of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental AuthoritiesBusiness; or
(txx) agree or commit to do or engage in any of the foregoing.
(b) Nothing contained in this Agreement shall give Parent, directly or indirectly, the right to control or direct the Company’s operations prior to the Closing. Notwithstanding Prior to the foregoingClosing, Seller may permit the Acquired Companies to take commercially reasonable actions management of the Company shall exercise, consistent with respect to emergency situations so long as Seller shalland in accordance with the terms and conditions of this Agreement, upon receipt complete control and supervision over the operations of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of businessCompany.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Anika Therapeutics, Inc.)
Certain Restrictions. Except Since December 31, 2001, except as required disclosed in the Company SEC Documents, the Company and each subsidiary of the Company has not done any of the following: (i) amended or permitted herebyproposed to amend their respective Articles of Incorporation or Bylaws; (ii) split, combined or reclassified their outstanding capital stock, (iii) issued, sold, pledged or disposed of, or as otherwise caused to become outstanding, any additional shares of, or any options, warrants or rights of any kind to acquire any shares of their capital stock of any class or any debt or equity securities convertible into or exchangeable for such capital stock, except for the issuance of shares upon the exercise, and in accordance with the terms and conditions, of the Outstanding Options or the Outstanding Warrants; (iv) declared, set forth aside or paid any dividend or distribution payable in Schedule 6.3cash, during stock, property or otherwise; (v) redeemed, purchased, acquired any shares of its capital stock or any options, warrants or rights to acquire any of its capital stock or any security convertible into or exchangeable for its capital stock or prepaid, redeemed, repurchased, or otherwise acquired for value any indebtedness for borrowed money, or offered to do any of the Interim Period, Seller will cause the Acquired Companies and the Projects same; (vi) incurred or become contingently liable with respect to operate any indebtedness for borrowed money other than (A) borrowings in the ordinary course of business and consistent with past practice. Without limiting under the foregoing, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not to:
(a) permit or allow any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets or Interests, except with respect to the Interests as described in Section 3.4;
(b) grant any waiver of any term under, exercise any option under, or give any consent with respect to, any Material Contract;
(c) sell, transfer, convey or otherwise dispose of any material Purchased Assets outside the ordinary course of business as of the Effective Date;
(d) other than accounts payable incurred in the ordinary course of business or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to itExisting Credit Agreement, or (B) borrowings pursuant to adjudicate it accounts payable to trade creditors incurred in the ordinary and usual course of business; (vii) failed to pay all debts and obligations incurred in the operation of its business as bankrupt the same become due and payable, except to the extent the Company or insolventany such subsidiary is contesting such debts or obligations in good faith by appropriate proceedings; (viii) made any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company, except insofar as may have been required by a change in GAAP; (Cix) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition entered into any agreement or other relief arrangement with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth actions described in this Section 6.3(h);
(i) purchase any securities of any Person, except for short-term investments made in the ordinary course of business;
(j) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of business, (ii) any Material Contract (including any Project Financing Document), or (iii) any Contract involving total consideration throughout its term in excess of $1,000,000 (except, in the case of the foregoing clauses (ii) and (iii), Contracts entered into in the ordinary course of business, consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing);
(k) waive any claims having a value in excess of $1,000,000, individually or in the aggregate;
(l) make any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, through (ii) for normal merit and cost of living increases consistent with past practice, viii); or (iiix) changes in salary failed to use all commercially reasonable efforts to preserve intact their respective business organizations and goodwill, keep available the extent necessary as determined by Seller in good faith services of their respective present officers and key employees, and preserve the goodwill and business relationships with customers, vendors and others having business relationships with them or failed to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter engage in any material respect any capital expenditures in a manner not consistent action, directly or indirectly, with the capital budget of intent to adversely impact the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authorities; or
(t) agree or commit to do any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of businesstransactions contemplated by this Agreement.
Appears in 1 contract
Sources: Common Stock and Warrant Purchase Agreement (Rent Way Inc)
Certain Restrictions. Except as required or permitted herebyotherwise agreed in writing by the Purchaser, or as otherwise set forth in Schedule 6.3the Group Companies shall, during and the Interim Period, Seller will Sellers shall cause the Acquired Group Companies and the Projects to operate in the ordinary course of business and consistent with past practice. Without limiting the foregoing, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict refrain from:
(i) the transfer of Excluded Itemsauthorizing, (ii) the termination issuing, selling or assignment of Excluded Contracts, (iii) the taking otherwise disposing of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required capital shares with respect to any matter set forth Group Company, or effecting any share split or other change in this Section 6.3 the capitalization of any Group Company, or elsewhere in this Agreement to the extent that the requirement modifying or amending any right of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not to:
(a) permit or allow any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any holder of the Purchased Assets or Interests, except outstanding capital shares with respect to the Interests as described in Section 3.4any Group Company or (b) any holder of rights to acquire capital shares with respect to any Group Company;
(bii) grant declaring, setting aside or paying any dividend or other distribution in respect of any capital shares of any Group Company;
(iii) (a) entering into, amending, modifying, terminating (partially or completely), granting any waiver of any term under, exercise any option under, under or give giving any consent with respect to, to (1) any Material Contract;
(c) sell, transfer, convey or otherwise dispose of any material Purchased Assets outside the ordinary course of business as of the Effective Date;
(d) other than accounts payable incurred in the ordinary course of business or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, Contract or (B2) to adjudicate it as bankrupt or insolvent, any License or (Cb) reorganizationgranting any irrevocable powers of attorney, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of any Person, except for short-term investments made in the ordinary course of business;
(j) enter into, terminate or amend (i) any Material Permit each case other than in the ordinary course of businessbusiness consistent with past practice;
(iv) violating, (ii) breaching or defaulting under in any Material Contract (including any Project Financing Document)respect, or taking or failing to take any action that (iiiwith or without notice or lapse of time or both) would constitute a violation or breach of, or default under, any term or provision of any License held or used by the Group Companies or any Contract involving total consideration throughout its term in excess of $1,000,000 (except, in the case to which any of the foregoing clauses Group Companies is a party or by which any of their respective Assets and Properties is bound;
(iia) and incurring any additional Indebtedness (iii), Contracts entered into other than Indebtedness incurred in the ordinary course of business, consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing);
(k) waive any claims having a value in excess of $1,000,000, individually or in the aggregate;
(l) make any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iiib) changes voluntarily purchasing, canceling, prepaying or otherwise providing for a complete or partial discharge in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basisadvance of a scheduled payment date with respect to, or (iv) changes to waiving any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as right of any of the Effective Date;
(q) declareGroup Companies under, set aside, make any Indebtedness of or pay any cash or non-cash dividend or other distribution on or with respect owing to any of its ownership interests them (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined Indebtedness incurred in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authorities; or
(t) agree or commit to do any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of business);
(vi) making capital expenditures or commitments for additions to property, plant or equipment in an aggregate amount exceeding Ten Thousand US Dollars (US$10,000);
(vii) making any change in the lines of business in which they participate or are engaged which would result in a Business Material Adverse Effect; or
(viii) entering into any agreement to do or engage in any of the foregoing.
Appears in 1 contract
Certain Restrictions. Except as required or permitted hereby, or as otherwise set forth in Schedule 6.3, during the Interim Period, Seller will cause the Acquired Companies and the Projects to operate in the ordinary course of business and consistent with past practice. Without limiting the foregoing, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict Refrain from: (i) changing or amending the transfer Charter Documents of Excluded Items, the Company; (ii) the termination merging with or assignment of Excluded Contracts, into or consolidating with any other Person; (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not to:
(a) permit or allow any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets or Interests, except with respect to the Interests as described in Section 3.4;
(b) grant any waiver of any term under, exercise any option under, or give any consent with respect to, any Material Contract;
(c) sell, transfer, convey or otherwise dispose of any material Purchased Assets outside the ordinary course of business as of the Effective Date;
(d) other than accounts payable incurred in the ordinary course of business or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire acquiring all or substantially all of the Assets stock or the assets of any other Person;
(g) issue Person or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part changing the character of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of any Person, except for short-term investments made in the ordinary course of business;
(j) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of business, (ii) any Material Contract (including any Project Financing Document), or (iii) any Contract involving total consideration throughout its term in excess of $1,000,000 (except, in the case of the foregoing clauses (ii) and (iii), Contracts entered into in the ordinary course of business, consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing);
(k) waive any claims having a value in excess of $1,000,000, individually or in the aggregate;
(l) make any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or ; (iv) changes to issuing or selling any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as shares of the Effective Date;
Company’s capital stock of any class or any securities convertible into, or options, warrants to purchase or rights to subscribe to, any shares of such capital stock; (qv) declarepermitting any liens upon, set asidepledging or otherwise encumbering any shares of such capital stock or any of their respective assets or properties; (vi) declaring, make paying or pay setting aside for payment any cash or non-cash dividend or other distribution on or with respect to any of its ownership interests the stockholders of the Company in respect of their respective capital stock or otherwise; (other than distributions solely among the Acquired Companiesvii) except directly or indirectly, redeeming, retiring, purchasing or otherwise acquiring any shares of their respective capital stock or any of their respective indebtedness for NAPS Dispositions money borrowed in advance of any scheduled repayment date; (as defined in the Project Financing Agreement);
viii) making any capital expenditures, or commitments with respect thereto; (rix) enter incurring, assuming or guaranteeing any indebtedness, obligations or liabilities or entering into any Contract with transactions or making any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authorities; or
(t) agree or commit commitment to do any of the foregoing. Notwithstanding foregoing except in the foregoingOrdinary Course of Business or for purposes of consummation of the transactions contemplated by this Agreement and in any case only after consultation with Buyer; (x) canceling, Seller may permit releasing, waiving or compromising any debt, Claim or right in their respective favor; (xi) altering the Acquired Companies rate or basis of compensation of any of their respective officers, directors, employees or consultants; and (xii) taking any action or failing to take commercially reasonable actions with respect any action as a result of which any of the other changes or events listed in Section 2.6 hereof is likely to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of businessoccur.
Appears in 1 contract
Sources: Stock Purchase Agreement (Optical Concepts of America Inc)
Certain Restrictions. Except as required expressly provided for in this Agreement, the Operative Agreements, the Plan, or permitted herebythe Reincorporation Merger Agreement, or as otherwise set forth in Schedule 6.3may be ordered by the Bankruptcy Court, during the Interim PeriodOld HomePlace will, Seller and will cause the Acquired Companies and the Projects its Subsidiaries, to operate in the ordinary course of business and consistent with past practice. Without limiting the foregoing, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not torefrain from:
(a) permit amending their certificates or allow articles of incorporation or by-laws (or other comparable corporate charter documents) in any Encumbrances (other than Permitted Encumbrances) to be imposed on material respect or against taking any of the Purchased Assets or Interests, except action with respect to the Interests as described in Section 3.4any such amendment or any recapitalization, reorganization, liquidation or dissolution of any such corporation;
(b) grant any waiver authorizing, issuing, selling or otherwise disposing of any term under, exercise shares of capital stock of or any option underOption with respect to Old HomePlace or any of its Subsidiaries, or give modifying or amending any consent right of any holder of outstanding shares of capital stock of or Option with respect to, to Old HomePlace or any Material Contractof its Subsidiaries;
(c) selldeclaring, transfersetting aside or paying any dividend or other distribution in respect of the capital stock of Old HomePlace or any of its Subsidiaries not wholly owned, convey directly or indirectly, by Old HomePlace, or directly or indirectly redeeming, purchasing or otherwise dispose acquiring any capital stock of or any material Purchased Assets outside the ordinary course Option with respect to Old HomePlace or any of business as of the Effective Dateits Subsidiaries not wholly owned, directly or indirectly, by Old HomePlace;
(d) other than accounts payable incurred in the ordinary course of business or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of any Person, except for short-term investments made in the ordinary course of business;
(j) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of business, acquiring or disposing of, or incurring any Lien (iiother than a Permitted Lien) on, any Material Contract Assets and Properties individually or in the aggregate material to the Business or Condition of Old HomePlace;
(including any Project Financing Documente) except for the tail insurance policy for directors and officers of Old HomePlace for a period of time not longer than six years and with an aggregate premium not greater than $100,000, entering into, amending, modifying, terminating (partially or completely), granting any waiver under or (iii) giving any consent with respect to any Contract involving total consideration throughout its term in excess or License material to the Business or Condition of $1,000,000 Old HomePlace;
(except, in the case of the foregoing clauses (iif) and (iii), Contracts entered into other than in the ordinary course of businessbusiness (i) voluntarily incurring Indebtedness or (ii) purchasing, consistent canceling, prepaying or otherwise providing for a complete or partial discharge in advance of a scheduled payment date with past practicerespect to, which will be fully performed prior or waiving any right under, any Indebtedness (in either case other than Indebtedness of Old HomePlace or a Subsidiary of Old HomePlace owing to Closing and under which Old HomePlace or a wholly-owned Subsidiary of Old HomePlace or as authorized by an Order of the Acquired Companies will have no further obligations or liabilities following the ClosingBankruptcy Court);
(kg) waive without limiting Section 5.04, engaging with any claims having a value Person in excess of $1,000,000, individually any merger or in the aggregateother business combination;
(lh) make any material election with respect making capital expenditures or commitments for additions to Taxesproperty, plant or equipment constituting capital assets in an aggregate amount exceeding $500,000 (other than as mandated by an Order of the Bankruptcy Court);
(mi) amend or modify its Organizational Documents;
(nexcept as disclosed in Section 5.07(i) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase of the compensation payable or to become payable or the benefits provided to the Transferrable Project EmployeesHomePlace Disclosure Schedule, except (i) to the extent required by applicable Law or reasonably and in good faith believed by a Governmental Authoritythe officers of Old HomePlace to be in the best interests of Old HomePlace, its Subsidiaries, and the Estates making any material change in (iiA) for normal merit and cost of living increases consistent with past practiceany pricing, investment, accounting, financial reporting, inventory, credit, allowance or Tax practice or policy, or (iiiB) changes any method of calculating any bad debt, contingency or other reserve for accounting, financial reporting or Tax purposes;
(j) other than in salary the ordinary course of business or to the extent necessary as determined required by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basisapplicable Law, adopting, entering into or becoming bound by any material Benefit Plan, employment-related Contract or collective bargaining agreement, or amending, modifying or terminating (ivpartially or completely) changes to any Plant Employee’s such Benefit Plan effective January 1Plan, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Dateemployment-related Contract or collective bargaining agreement;
(qk) declare, set aside, make or pay making any cash or non-cash dividend or other distribution on or with respect to any of change in its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authoritiesfiscal year; or
(tl) agree or commit entering into any Contract to do or engage in any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of business.
Appears in 1 contract
Certain Restrictions. Except as required or permitted hereby, or as otherwise set forth in Schedule 6.3, during Between the Interim Perioddate of this Agreement and Closing, Seller will shall cause the Acquired Companies and the Projects to operate in the ordinary course of business and consistent with past practice. Without limiting the foregoing, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as each of the Effective Date Group Companies not to, directly or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict indirectly: (i) the transfer of Excluded Itemsissue any Interests or Shares or any options, warrants or other rights to subscribe for or purchase any Interests or Shares or any securities or obligations convertible into or exchangeable for such Interests or Shares; (ii) declare, set aside or pay any dividend or distribution with respect to its Interests or Shares for the termination fiscal year ending December 31, 1999, or assignment declare, set aside or pay any dividend or distribution with respect to its Interests or Shares for any fiscal year ending prior thereto the amount of Excluded Contracts, which was not reflected as payable in the Financial Statements; (iii) the taking of any action directly or indirectly redeem, purchase or otherwise listed below to the extent reasonably required to accomplish acquire any of the Permitted Transactions its Interests or Shares; (iv) the termination effect a split, reclassification or other change in or of the services contemplated by Section 6.8any of its Interests or Shares; (v) amend its Organizational Documents, except for such amendments which have already been approved and no consent of Buyer will be required with respect disclosed to Buyer; (vi) consummate or commit to any matter set forth in this Section 6.3 consolidation, merger or elsewhere in this Agreement sale of assets; (vii) purchase or commit to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not to:
(a) permit or allow any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets or Interests, except with respect to the Interests as described in Section 3.4;
(b) grant any waiver of any term under, exercise any option under, or give any consent with respect to, any Material Contract;
(c) sell, transfer, convey or otherwise dispose of any material Purchased Assets outside the ordinary course of business as of the Effective Date;
(d) other than accounts payable incurred in the ordinary course of business or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire purchase all or substantially all of the Assets assets of any person or consummate or commit to any other Person;
transaction outside the Ordinary Course of Business; (gviii) issue take, omit or sell agree to take or omit any equity ownership interests;
action that would cause a Material Adverse Effect; (ix) transfer, lease, sell, mortgage, pledge, dispose of or encumber any of its properties or assets other than the sale of finished goods in the Ordinary Course of Business and other than the sale of other assets in the Ordinary Course of Business not having an original acquisition value in excess of DM 100,000 in the aggregate; (x) authorize or commit to make capital expenditures in excess of DM 100,000 in the aggregate not committed to prior to the date of this Agreement (it being understood and agreed that the Group Companies are allowed to make capital expenditures exceeding DM 100,000 in the aggregate in cases of emergency (Gefahr im Verzug) commence provided that Buyer is informed thereof afterwards as soon as practicable); (xi) establish, adopt, enter into or amend (except as required by Law or this Agreement) any caseCollective Bargaining Agreements, proceeding bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other action under any existing plan, agreement, trust, fund, policy or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment arrangement for the benefit of its creditorsany directors, officers, consultants or employees of any Group Company other than modifications to Collective Bargaining Agreements which are not material in the Ordinary Course of Business or the termination or amendment of employment contracts in the Ordinary Course of Business or the engagement of a number of new employees which is not material in the Ordinary Course of Business; (xii) settle or compromise any claims or litigation or waive, release or assign any material rights or claims that Buyer is directly or indirectly acquiring hereunder, other than the settlement of claims in the Ordinary Course of Business in an amount not in excess of DM 50,000 in the aggregate; (xiii) make any Tax election, settle or compromise any Tax liability, or take waive or extend the statute of limitations in respect of any action in furtherance Taxes; (xiv) permit any insurance policy naming a Group Company as a beneficiary or loss payee or otherwise relating to the business conducted by any Group Company to be cancelled or terminated, other than with respect to policies the loss of which is not material to such Group Company; (xv) amend, restate or otherwise modify, or waive the provisions of, or indicating its consent to, approval of, or acquiescence in, any of Contract disclosed on Schedule 8.15 other than such actions which are not material to the acts set forth in this Section 6.3(h);
(i) purchase any securities of any Person, except for short-term investments made Group Company party thereto and are taken in the ordinary course Ordinary Course of business;
Business; (jxvi) enter intocollect any accounts receivable, terminate withdraw cash, cash equivalents or amend (i) any Material Permit other assets or pay accounts payable other than in the ordinary course Ordinary Course of business, (ii) any Material Contract (including any Project Financing Document)Business, or (iii) any Contract involving total consideration throughout its term in excess of $1,000,000 (except, in the case of the foregoing clauses (ii) and (iii), Contracts entered into in the ordinary course of business, consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing);
(k) waive any claims having a value in excess of $1,000,000, individually or in the aggregate;
(lxvii) make any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes loan to any Plant Employee’s Benefit Plan effective January 1person, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined travel advances to employees in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget Ordinary Course of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authorities; or
(t) agree or commit to do any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of businessBusiness.
Appears in 1 contract
Certain Restrictions. Except as required From the date of this Agreement until Closing or permitted hereby, or as otherwise set forth in Schedule 6.3, during the Interim Periodtermination of this Agreement, Seller will refrain, and will cause the Acquired Companies Selling Affiliates to refrain from:
(a) acquiring or disposing of any Assets and Properties used or held for use in the Projects to operate conduct of the Business, other than in the ordinary course of business and consistent with past practice. Without limiting practice and other acquisitions or dispositions not exceeding $1,000,000, individually, or $10,000,000, in the foregoingaggregate, except as otherwise set forth or creating or incurring any Lien, other than a Permitted Lien, on any Assets and Properties used or held for use in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as the conduct of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not to:
(a) permit or allow any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets or Interests, except with respect to the Interests as described in Section 3.4Business;
(b) grant entering into, amending, modifying, terminating (partially or completely), granting any waiver of any term under, exercise any option under, under or give giving any consent with respect to, to any Material Contract;
(c) sell, transfer, convey Business Contract or otherwise dispose of any material Purchased Assets outside the ordinary course of business as of the Effective Date;
(d) Business License other than accounts payable incurred in the ordinary course of business or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of any Person, except for short-term investments made in the ordinary course of business;
(jc) enter intoviolating, terminate breaching or amend defaulting under, or taking or failing to take any action that (iwith or without notice or lapse of time or both) would constitute a violation or breach of, or default under, any Material Permit term or provision of any Business Contract or any Business License, other than such violations, breaches, defaults, actions or inactions that would not have a material adverse effect on the Condition of the Business;
(d) incurring, purchasing, canceling, prepaying or otherwise providing for a complete or partial discharge in advance of a scheduled payment date with respect to, or waiving any right of Seller or any Selling Affiliate under, any Liability of or owing to Seller or any Selling Affiliate in connection with the Business, other than in the ordinary course of businessbusiness consistent with past practice;
(e) engaging with any Person in any Business Combination, unless such Person agrees in writing that such Business Combination is subject to the terms and conditions of this Agreement;
(iif) engaging in any Material Contract (including transaction with respect to the Business with any Project Financing Document)officer, director, Affiliate or Associate of Seller or any Selling Affiliate, or any Associate of any such officer, director or Affiliate, either outside the ordinary course of business consistent with past practice or other than on an arm's-length basis;
(iiig) any Contract involving total consideration throughout its term in excess of $1,000,000 (exceptmaking capital expenditures or commitments for additions to property, in the case plant or equipment constituting capital assets on behalf of the foregoing clauses (ii) and (iii), Contracts entered into Business other than in the ordinary course of business, business consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing);
(kh) waive making any claims having a value material acquisitions, sales or other dispositions of (or making any commitments for such acquisition, sale or disposition of) any Products, or any parts, components, supplies or accessories related thereto, that are materially in excess of $1,000,000standard industry practices, individually or that are other than in the aggregate;
(l) make any material election with respect to Taxes;
(m) amend ordinary course of business or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases that are other than on an individual arm's-length basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authorities; or
(ti) agree or commit entering into any Contract to do or engage in any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of business.
Appears in 1 contract
Certain Restrictions. Except as (i) required by applicable Laws, the Bankruptcy Proceedings or permitted herebySECTION 1.01(C), (ii) authorized under SECTION 15.08, or as otherwise set forth (iii) provided in Schedule 6.3SECTION 15.06 with respect to the Tunica Business, during the Interim PeriodSellers will refrain from, Seller and Parent will cause Sellers to refrain from:
(a) disposing of any Assets and Properties used or held for use in the Acquired Companies and conduct of the Projects to operate Business, other than Inventory in the ordinary course of business and consistent with past practice. Without limiting practice and other dispositions not exceeding $100,000 in the foregoingaggregate for each of the Las Vegas Business, except as otherwise set forth the Black Hawk Business and the Tunica Business, or creating or incurring any Lien, other than a Permitted Lien, on any Assets and Properties used or held for use in Schedule 6.3the conduct of the Business;
(b) entering into, required amending, modifying, terminating, granting any waiver under or permitted hereby or required by applicable Laws giving any consent with respect to any Business Contract or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyermaterial Business License without Purchaser's prior written consent, which consent shall not be unreasonably withheld, conditioned withheld or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not to:
(a) permit or allow any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets or Interests, except with respect to the Interests as described in Section 3.4;
(b) grant any waiver of any term under, exercise any option under, or give any consent with respect to, any Material Contractdelayed;
(c) sellviolating, transferbreaching or defaulting under in any material respect, convey or otherwise dispose taking or failing to take any action that would constitute a material violation or breach of, or default under, any term or provision of any material Purchased Assets outside the ordinary course of business as of the Effective DateBusiness Contract or any Business License;
(d) other than accounts payable incurred in the ordinary course of business incurring, purchasing, canceling, prepaying or otherwise incurred pursuant to the Material Contracts providing for a complete or short termpartial discharge in advance of a scheduled payment date with respect to, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue waiving any debt securities or assume or guarantee the obligations right of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence inSeller under, any Liability of or owing to any Seller in connection with the acts set forth in this Section 6.3(h);
(i) purchase any securities of any PersonBusiness, except for short-term investments made in the ordinary course of business;
(j) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of businessbusiness consistent with past practice;
(e) engaging with any Person in any Business Combination;
(f) engaging in any transaction with respect to the Business with any officer, director or Affiliate of any Seller, either outside the ordinary course of business consistent with past practice or other than on an arm's-length basis;
(g) making capital expenditures or commitments for additions to property, plant or equipment constituting capital assets on behalf of the Business in an aggregate amount exceeding the greater of (i) $2,000,000 or (ii) if the period between the date of this Agreement and the Closing Date exceeds 12 months, $2,000,000 PLUS $166,667 per month for each month after such 12-month period (and prorated for any Material Contract (including any Project Financing Documentsuch partial month), or (iii) any Contract involving total consideration throughout its term in excess of $1,000,000 (exceptother than gaming equipment, in the case of the foregoing clauses (ii) devices and (iii), Contracts entered into products acquired in the ordinary course of business, consistent with past practice, which will be fully performed prior to Closing and under which except upon receipt of the Acquired Companies will have no further obligations or liabilities following the Closing)written consent of Purchaser;
(kh) waive increasing the Employees' cash compensation or severance pay entitlements, or making any claims having a value other material changes in excess of $1,000,000, individually or in the aggregate;
(l) make any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the Sellers' respective compensation payable or to become payable or the benefits provided to the Transferrable Project Employeesand personnel policies, except (i) for reasonable and customary periodic compensation increases and bonuses based on performance and consistent with past practice or in accordance with the bonus programs applicable generally to Employees, as described in SECTION 4.06(H) OF THE DISCLOSURE SCHEDULE (collectively, the extent required by applicable Law "BONUS PROGRAM"), or by a Governmental Authority, (ii) as specifically authorized by the Restructuring Agreement;
(i) making any material changes in the operation of Sellers' promotional and marketing program, commonly referred to as the "Fitzgeralds Players Card," available to gaming patrons at each Business location including, without limitation, material changes in the methods of calculating or canceling points and issuing awards to participants in the program who have accumulated designated point levels or shortening the expiration periods for normal merit points; PROVIDED, HOWEVER, that the foregoing limitations shall not restrict Sellers from making periodic changes to such program in the ordinary course and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(qj) declare, set aside, make exchanging or pay any cash trading equipment or non-cash dividend or other distribution on or machinery with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental AuthoritiesFR; or
(tk) agree or commit entering into any Contract to do or engage in any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of business.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Fitzgeralds Gaming Corp)
Certain Restrictions. Except as required Each Company will and will cause its Subsidiaries to refrain from:
(a) amending their certificates or permitted herebyarticles of incorporation or by-laws (or other comparable organizational documents) or taking any action with respect to any such amendment or any reorganization, liquidation or dissolution of any such Person;
(b) authorizing, issuing, selling or otherwise disposing of any shares of, or as any option, right or warrant to purchase with respect to, equity securities of either Company or any Subsidiary thereof, or modifying or amending any right of any holder of outstanding shares of, or any option, right or warrant to purchase with respect to, equity securities of either Company or any Subsidiary thereof;
(c) declaring, setting aside or paying any dividend or other distribution in respect of the capital stock of either Company or any Subsidiary thereof not wholly owned by a Company, or directly or indirectly redeeming, purchasing or otherwise set forth acquiring any shares of, or any option, right or warrant to purchase with respect to, capital stock of either Company or any Subsidiary thereof not wholly owned by either Company; provided, however, that, at or prior to the Closing, the Companies shall be entitled to distribute cash in Schedule 6.3an aggregate amount equal to the Closing Net Working Capital Amount; provided further, during that effective January 1, 2014, at the Interim Periodconclusion of an each audit of the balance sheet for each Company for the year then ended, Seller will cause the Acquired Companies and may distribute cash in an aggregate amount for the Projects to operate applicable year ended in excess of the Minimum Net Working Capital;
(d) except in the ordinary course of business and consistent with past practice. Without limiting the foregoing, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Itemsincurring any Indebtedness, or (ii) the termination voluntarily purchasing, canceling, prepaying or assignment otherwise providing for a complete or partial discharge in advance of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not to:
(a) permit or allow any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets or Interests, except with respect to the Interests as described in Section 3.4;
(b) grant any waiver of any term under, exercise any option under, or give any consent a scheduled payment date with respect to, or waiving any Material Contract;
right of either Company or any Subsidiary thereof under, any Indebtedness of or owing to either Company or any Subsidiary thereof (c) sell, transfer, convey or otherwise dispose of any material Purchased Assets outside the ordinary course of business as of the Effective Date;
(d) in either case other than accounts payable incurred in the ordinary course Indebtedness of business either Company or otherwise incurred pursuant a Subsidiary thereof owing to the Material Contracts either Company or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Persona wholly-owned Subsidiary);
(e) except as may be required engaging with any Person in any merger, consolidation or similar transaction, sale, disposition or other transfer of twenty percent (20%) or more, in the aggregate, of the assets of either Company or its Subsidiaries, or issue, or any transaction which is similar in for, substance, purpose or effect to meet any of the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;foregoing; or
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of any Person, except for short-term investments made in the ordinary course of business;
(j) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of business, (ii) any Material Contract (including any Project Financing Document), or (iii) any Contract involving total consideration throughout its term in excess of $1,000,000 (except, in the case of the foregoing clauses (ii) and (iii), Contracts entered into in the ordinary course of business, consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing);
(k) waive any claims having a value in excess of $1,000,000, individually or in the aggregate;
(l) make any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter entering into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authorities; or
(t) agree or commit to do or engage in any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of business.
Appears in 1 contract
Certain Restrictions. Except as required or permitted hereby, or as otherwise set forth in Schedule 6.3, during the Interim Period, Seller will cause the Acquired Companies and the Projects to operate in the ordinary course of business and consistent with past practice. Without limiting the foregoing, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere provided for in this Agreement to or the extent that Operative Agreements, contemplated by the requirement of such consent would reasonably be expected to violate any applicable Law)Plan or approved by Purchaser, Seller will, during the Interim Period, cause the Acquired Companies not toSellers will refrain from:
(a) permit other than in the Ordinary Course of Business, acquiring or allow disposing of or incurring any Encumbrances Lien (other than a Permitted EncumbrancesLien) on any Assets and Properties used in or relating to be imposed on or against the Business, other than (i) any disposals pursuant to an Order of the Purchased Assets U.S. Bankruptcy Court, (ii) any disposals or Interests, except with respect Liens consented to the Interests as described in Section 3.4writing by Purchaser and (iii) any disposals of or Liens on Excluded Assets;
(b) grant any waiver authorizing, issuing, selling or otherwise disposing of any term under, exercise any option undershares of, or give securities convertible into or exchangeable or exercisable for or any consent Option with respect toto any shares of, capital stock or share capital or partnership interests or membership interests of any Material ContractSeller, or modifying or amending any right of any holder of outstanding shares of capital stock or share capital or partnership interests or membership interests of or Option with respect to any Seller (except to the extent any such action would have no adverse effect on the benefits to which Purchaser is entitled under this Agreement);
(c) selltaking any action with respect to any merger, transferconsolidation, convey recapitalization, reorganization, liquidation or otherwise dispose dissolution of any material Purchased Assets outside Seller (except to the ordinary course of business as of extent any such action would have no adverse effect on the Effective Datebenefits to which Purchaser is entitled under this Agreement);
(d) other than accounts payable incurred in the ordinary course Ordinary Course of business Business, entering into, amending, modifying, terminating (partially or completely), granting any waiver under or giving any consent with respect to any Business Contract, Real Property Lease, Personal Property Lease or Business License, provided that after the date of this Agreement, Sellers shall not enter into any Computer/Telecommunications Contracts that would involve commitments on the part of Sellers for an amount, individually or when aggregated with all other Computer/Telecommunications Contracts entered into after the date of this Agreement, in excess of $200,000 (it being understood that any amendments to or extensions of existing Computer/Telecommunications Contracts shall be deemed Contracts entered into after the date of this Agreement for purposes of this Section 4.05(d)); and provided, further, that after the date of this Agreement, Sellers shall not enter into any Contract (other than retail customer purchase contracts, purchase orders, extensions or renewals of Contracts relating to retail store locations and Computer/Telecommunications Contracts) that either (x) is not cancelable for any reason without penalty upon no more than 30 days prior written notice or (y) does not individually involve a monetary or other obligation (direct or contingent) by any Seller in excess of $200,000, or, when aggregated with all other such Contacts, in excess of $500,000; and provided, further, that nothing in this Section 4.05 shall limit the ability of Sellers to renew, extend, amend or otherwise incurred pursuant to modify the Material Contracts Sellers' DIP Facility or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other PersonSellers' WFF Facility;
(e) except other than intercompany dividends or distributions, declaring, setting aside or paying any dividend or other distribution payable in cash, stock or property with respect to its capital stock, partnership interests or membership interests, as may be required to meet the requirements applicable, or redeeming, repurchasing or otherwise acquiring any shares of applicable Laws its capital stock, partnership interests or GAAPmembership interests, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a wholeapplicable;
(f) fail other than in the Ordinary Course of Business, incurring any indebtedness for money borrowed or issuing or selling any debt securities or warrants or rights to maintain its existence or consolidate or merge with acquire any debt securities of Sellers other Person or acquire all or substantially all of the Assets of any other Personthan under Sellers' DIP Facility;
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action except as required under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of any Person, except for short-term investments made in the ordinary course of business;
(j) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of business, (ii) any Material Contract (including any Project Financing Document), or (iii) any Contract involving total consideration throughout its term in excess of $1,000,000 (except, in the case of the foregoing clauses (ii) and (iii), Contracts entered into in the ordinary course of business, consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing);
(k) waive any claims having a value in excess of $1,000,000, individually agreements or in the aggregate;
(l) make Ordinary Course of Business in connection with any promotions, granting any material election with respect to Taxes;
(m) amend increase in the fringe benefits or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable by Sellers to any Employee or Executive Employee or director thereof;
(h) except as a result of, or relating to, the benefits provided actions contemplated by this Agreement, adopting, amending or otherwise materially increasing, or accelerating the payment or vesting of the amounts payable or to the Transferrable Project Employees, except become payable to any Employee or Executive Employee or director of any Seller under any existing Benefit Plan;
(i) to the extent required by applicable Law entering into or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter amending in any material respect any capital expenditures existing employment or severance agreement with, or, except in a manner not consistent accordance with the capital budget existing written policies of the Acquired Companies provided Sellers or existing contracts or agreements, granting any severance or termination pay to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authoritiesany Employee or Executive Employee or director of any Seller; or
(tj) agree or commit to do any materially changing the accounting principles used by it in effect as of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of businessdate hereof unless required by GAAP.
Appears in 1 contract
Certain Restrictions. Except as required or permitted hereby, or as otherwise set forth in Schedule 6.3, during the Interim Period, Seller will cause the Acquired Companies and the Projects to operate in the ordinary course of business and consistent with past practice. Without limiting the foregoing, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not to:
(a) permit or allow any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of From the Purchased Assets or Interests, except with respect to the Interests as described in Section 3.4;
(b) grant any waiver of any term under, exercise any option under, or give any consent with respect to, any Material Contract;
(c) sell, transfer, convey or otherwise dispose of any material Purchased Assets outside the ordinary course of business as of the Effective Date;
(d) other than accounts payable incurred in the ordinary course of business or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to date hereof through the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee each of ▇▇▇▇▇▇▇▇▇ and the obligations of any other Person;
Company (e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of any Person, except for short-term investments made in the ordinary course of business;
(j) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of business, (ii) any Material Contract (including any Project Financing Document), or (iii) any Contract involving total consideration throughout its term in excess of $1,000,000 (exceptand, in the case of clause (iv) below, the foregoing clauses Owners) will refrain from:
(iii) and amending its certificate or articles of organization or incorporation, operating agreement or by-laws (iiior other comparable charter documents), Contracts entered into in including the ordinary course of businessCharter Documents, consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing);
(k) waive taking any claims having a value in excess of $1,000,000, individually or in the aggregate;
(l) make any material election action with respect to Taxes;
(m) amend any such amendment or modify its Organizational Documents;
(n) commence any reorganization, liquidation or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable dissolution of ▇▇▇▇▇▇▇▇▇ or the benefits provided to the Transferrable Project EmployeesCompany, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes in salary that ▇▇▇▇▇▇▇▇▇ may amend its operating agreement to the extent necessary to appoint officers and authorize such officers to execute documents on behalf of ▇▇▇▇▇▇▇▇▇ in connection with the transactions contemplated hereby;
(ii) in the case of ▇▇▇▇▇▇▇▇▇, except as determined by Seller disclosed in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basisSECTION 2.9 OF THE DISCLOSURE SCHEDULE, taking any of the actions listed in Section 2.9;
(iii) violating, breaching, or defaulting under, in any material respect, or taking or failing to take any action that (with or without notice or lapse of time or both) would constitute a material violation or breach of, or default under, any term or provision of any License held or used by it or any Contract required to be disclosed in SECTION 2.18(A) OF THE DISCLOSURE SCHEDULE;
(iv) changes (A) taking or agreeing or committing to take, or omitting or agreeing or committing to omit, any Plant Employee’s Benefit Plan effective January 1action that would make any representation or warranty contained in Article IV inaccurate in any material respect; and (B) taking any action or course of action inconsistent with compliance with the covenants and agreements of any Owner, 2016 that have been communicated ▇▇▇▇▇▇▇▇▇ or the Company herein or which might adversely affect the interests of any Investor hereunder; and
(v) entering into any agreement to Transferrable Project Employees and made available to Buyer as do or engage in any of the Effective Date;foregoing.
(qb) declarePrior to the Closing, set asidethe Company will not conduct any business, make incur any Liabilities (whether contingent or pay any cash or non-cash dividend or other distribution on or with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreementotherwise);
(r) , enter into any Contract with (other than this Agreement, the Operative Agreements and any Related Party;
Contract that (si) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with is furnished to and approved by each Investor before being entered into by the capital budget Company and (ii) is entered into by the Company either as part of the Acquired Companies provided Restructuring Transactions described in clause (c) of Section 4.9 or in obtaining the written instruments relating to Buyer as the Effective Date▇▇▇▇▇ Bank revolving credit facility contemplated by Section 6.6), acquire any Assets and Properties or hire any employees, except as would be consistent with prudent operating practice for any Assets and directives from ERCOT Properties, Liabilities and other Governmental Authorities; or
(t) agree Contracts contributed to or commit assumed by it on the Closing Date pursuant to do any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of businessContribution Agreement.
Appears in 1 contract
Certain Restrictions. Except as required or permitted hereby, or as otherwise set forth in Schedule 6.3, during the Interim Periodcontemplated by this Agreement, Seller and Parent will cause the Acquired Companies and the Projects to operate in the ordinary course of business and consistent with past practice. Without limiting the foregoing, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies Company not to:
(a) permit declare, set aside or allow pay any Encumbrances (dividend or other than Permitted Encumbrances) to be imposed on or against any distribution in respect of the Purchased Assets capital stock of the Company, declare, set aside or Interestspay any stock dividend in respect of the capital stock of Parent (except as required by legal obligations to which Parent is subject at the date of this Agreement, except including, without limitation, pursuant to Parent’s articles of association), or directly or indirectly redeem, purchase or otherwise acquire any capital stock of or any Option with respect to the Interests as described in Section 3.4Company;
(b) authorize, issue, sell or otherwise dispose of any shares of capital stock of or any Option with respect to the Company, or modify or amend any right of any holder of outstanding shares of capital stock of or Option with respect to the Company, or authorize, issue, sell or otherwise dispose of any shares of Parent (except as required by legal obligations to which Parent is subject at the date of this Agreement, including, without limitation, pursuant to Parent’s articles of association) except in connection with any Options with respect to Parent existing on the date of this Agreement;
(c) (i) incur Indebtedness in an aggregate principal amount exceeding $15,000,000 (net of any amounts of Indebtedness discharged during such period), or (ii) voluntarily purchase, cancel, prepay or otherwise provide for a complete or partial discharge in advance of a scheduled payment date with respect to, or waive any right of the Company under, any Indebtedness of or owing to the Company;
(d) make any material revaluation of, or any determination to materially revalue, any of their Assets and Properties outside the ordinary course of business consistent with past practice;
(i) settle or compromise any pending or threatened litigation with any Person, which settlement involves equitable relief or a payment in excess of $100,000 individually or in the aggregate which is not covered by insurance or is covered by insurance which contains a retroactive premium adjustment or initiate or join any material suit, action or claim without obtaining the prior written consent of Purchaser which consent shall not be unreasonably withheld or (ii) pay, discharge or satisfy any claim or Liability other than in the ordinary course of business consistent with past practice;
(f) acquire or dispose of, or incur any Lien (other than a Permitted Lien) on, any Assets and Properties, other than in the ordinary course of business consistent with past practice;
(g) amend their certificates or articles of incorporation or by-laws (or other comparable corporate charter documents) or take any action with respect to any such amendment except as contemplated by the Shareholder Resolutions;
(h) except as would not be materially adverse to the Business or Condition of the Company, (i) enter into, amend, modify, terminate (partially or completely), grant any waiver of any term under, exercise any option under, under or give any consent with respect to, to (A) any Material Contract;
(c) sell, transfer, convey Contract material to the Business or otherwise dispose of any material Purchased Assets outside the ordinary course of business as Condition of the Effective Date;
(d) other than accounts payable incurred Company or that would, if in existence on the ordinary course date of business or otherwise incurred pursuant to the Material Contracts or short termthis Agreement, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person;
(e) except as may be required to meet be disclosed in the requirements Disclosure Schedule pursuant to Section 2.18(a) or (B) any material License or (ii) grant any irrevocable powers of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interestsattorney;
(i) commence make capital expenditures or commitments for additions to property, plant or equipment constituting capital assets in an aggregate amount exceeding $100,000;
(j) make any change in the lines of business in which the Company participates or is engaged;
(k) except as set forth in Section 4.09(k) of the Disclosure Schedule, make or change any material election by the Company concerning Taxes or settle or compromise any material Tax liability, file any amended Tax Return, or surrender any claim for a refund of material Taxes, in each case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to ita Tax Return or Taxes for which the Company could be held liable;
(l) propose, file or (B) to adjudicate it as bankrupt adopt a plan of complete or insolventpartial liquidation, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition recapitalization or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any merger of the acts set forth in this Section 6.3(h)Company;
(im) purchase materially modify its collection practices for any securities of receivable or other right to payment or its payment practices for any Person, except for short-term investments made payable from past practices in the ordinary course of business;
(jn) enter into, terminate or amend (i) change the location of any Material Permit other than in the ordinary course of business, (ii) any Material Contract (including any Project Financing Document), or (iii) any Contract involving total consideration throughout its term in excess of $1,000,000 (except, in the case of the foregoing clauses (ii) and (iii), Contracts entered into in the ordinary course of business, consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing);
(k) waive any claims having a value in excess of $1,000,000, individually or in the aggregate;
(l) make any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any ClaimCompany’s offices;
(o) enter into engage with any partnership, joint venture, strategic alliance Person in any merger or similar contract or arrangement;other business combination; or
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authorities; or
(t) agree or commit to do or engage in any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of business.
Appears in 1 contract
Sources: Stock Purchase Agreement (Danka Business Systems PLC)
Certain Restrictions. Except as required or permitted hereby, or as otherwise set forth in Schedule 6.3, during (a) During the Interim Period, Seller will cause the Acquired Companies and the Projects to operate in the ordinary course of business and consistent with past practice. Without limiting the foregoing, except as otherwise set forth in Section 6.02(a) of the Company Disclosure Schedule 6.3or unless otherwise contemplated by this Agreement, required or permitted hereby or the Company (w) will operate and maintain its business in the Ordinary Course of Business, (x) will use commercially reasonable efforts to maintain the ordinary and customary relationships of the Company with its suppliers, customers, key employees and others having material business relationships with it, and (y) except as required by applicable Laws or Applicable Law, will not take any Material Contract in effect as of the Effective Date following actions unless either (i) expressly required by this Agreement or amended (ii) as permitted hereby or as consented to by Buyerset forth in Section 6.02(a) of the Company Disclosure Schedule, without Parent’s consent (which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not to:
(a) permit or allow any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets or Interests, except with respect to the Interests as described in Section 3.4;
(b) grant any waiver of any term under, exercise any option under, or give any consent with respect to, any Material Contract;
(c) sell, transfer, convey or otherwise dispose of any material Purchased Assets outside the ordinary course of business as of the Effective Date;
(d) other than accounts payable incurred in the ordinary course of business or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interests;delayed):
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of any Person, except for short-term investments made in the ordinary course of business;
(j) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of business, (ii) any Material Contract (including any Project Financing Document), or (iii) any Contract involving total consideration throughout its term in excess of $1,000,000 (except, in the case of the foregoing clauses (ii) and (iii), Contracts entered into in the ordinary course of business, consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing);
(k) waive any claims having a value in excess of $1,000,000, individually or in the aggregate;
(l) make any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on in respect of the capital stock of the Company or with respect to repurchase, redeem or otherwise acquire any outstanding shares of its the Company Capital Stock or other securities of, or other ownership interests in, the Company (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (withholding of shares to satisfy Tax obligations with respect to, or to pay the warrant price or exercise price of, the Company Warrants or the Company Options outstanding as defined of the date of this Agreement in accordance with the Project Financing Agreementapplicable Company Warrant or the Stock Plans and applicable employee award agreements as in effect on the date of this Agreement or the repurchase of shares of capital stock from existing stockholders of the Company pursuant to the Company’s right of first refusal);
(rii) transfer, issue, sell or dispose of any shares of Company Capital Stock or other Equity Interests of the Company (other than the issuance of shares in connection with the exercise of Company Warrants or Company Options or the conversion of Company Preferred Stock outstanding as of the date of this Agreement in accordance with, as applicable, the Charter, the applicable Company Warrant or Stock Plans and applicable employee award agreements as in effect on the date of this Agreement) or grant Equity Interests of the Company;
(iii) amend its Organizational Documents or undertake, declare or effect any recapitalization, reclassification, reorganization, stock split, liquidation, dissolution or winding up;
(iv) take any action that would result in the Company having any Subsidiaries;
(v) acquire, dispose, exchange or lease to any other Person any real property or other material Properties of the Company or incur any Liens or permit any Liens to be imposed on any Property of the Company other than Permitted Liens, other than entry into non-exclusive licenses in the Ordinary Course of Business;
(vi) enter into, amend, modify or terminate (partially or completely) any (A) Material Contract, (B) Contract that would constitute a Material Contract if entered into prior to the date of this Agreement, or (C) Contract with a Key Customer or material supplier, except, in each case of (A), (B) and (C), in the Ordinary Course of Business;
(vii) incur any Indebtedness other than Current Income Tax Liability;
(viii) make any loans or advances to, or any investments in or capital contributions to, any Person, or forgive or discharge in whole or in part any outstanding loans or advances, or prepay any indebtedness for borrowed money (other than routine advancement of expenses or commissions to directors, officers, consultants or employees in the Ordinary Course of Business);
(ix) merge, fail to maintain its legal existence or consolidate with any other Person, or acquire capital stock or assets of any other Person or enter into any Contract with any Related Partyrespect to a joint venture, strategic alliance or partnership;
(sx) delaychange the Company’s methods of accounting, deferexcept to the extent required by changes in GAAP;
(xi) (A) make (outside the Ordinary Course of Business), reduce change or otherwise alter rescind any material Tax election; (B) settle or compromise any claim, audit, assessment or dispute relating to Taxes in excess of the amount reserved with respect thereto in the YTD Financial Statements; (C) file any material amended Tax Return; (D) make any change in any material respect method of Tax accounting or material Tax accounting periods; (E) knowingly surrender any claim for a refund of Taxes; (F) enter into any closing agreement with a Tax Authority relating to any Tax; (G) file any material Tax Return except as in accordance with past practice; or (H) consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment (other than pursuant to extensions of time to file Tax Returns obtained in the Ordinary Course of Business);
(xii) make or enter into any commitment for any capital expenditures outside the Ordinary Course of Business;
(xiii) commence any lawsuit or legal proceedings or pay or agree to pay in settlement or compromise of any suits or claims of liability against the Company;
(xiv) grant, extend, waive or modify any material rights in or to, or sell, assign, lease, license, transfer, let lapse, abandon or otherwise dispose of, any material Properties of the Company (including any Company IP), other than grant non-exclusive licenses in the Ordinary Course of Business;
(xv) disclose to any third party, other than representatives of Parent or under a written and enforceable confidentiality agreement, any Trade Secrets included in the Company IP in a way that results in the loss of protection for such Trade Secrets;
(xvi) except (A) as required under Applicable Laws or (B) to the extent required by any Company Plan, (1) materially increase the compensation or consulting fees, bonus opportunity, pension, welfare, fringe or other benefits, severance or termination pay of any of the current or former directors, officers, employees or consultants of the Company, (2) become a party to, establish, adopt, amend (other than immaterial amendments in the Ordinary Course of Business that would not increase benefits or costs with respect to such Company Plans by more than a de minimis amount), commence participation in or terminate any Company Plan or any arrangement that would have been a Company Plan had it been entered into prior to this Agreement, (3) hire any employee or engage any independent contractor (who is a natural person), except to fill a vacant position in each case with an annual salary or wage rate or consulting fees and target cash bonus opportunity not in excess of $75,000, (4) terminate the employment of any executive officer other than for cause, (5) grant any new equity awards, or amend or modify the terms of any outstanding equity awards under the Stock Plans or any Company Plans, (6) take any action to accelerate the vesting or lapsing of restrictions or payment, or fund or in any other way secure the payment of, compensation or benefits under any Company Plan (other than as otherwise contemplated by this Agreement) or (7) forgive any loans or issue any loans (other than routine advances of expenses or commissions issued in the Ordinary Course of Business) to any of its directors, officers, consultants or employees;
(xvii) become a party to, establish, adopt, amend, commence participation in or terminate any collective bargaining agreement or other agreement with a labor union, works council or similar organization;
(xviii) cancel or terminate any material insurance policy or cause any of the coverage thereunder to lapse (unless simultaneously with such termination, cancellation or lapse, replacement policies providing coverage equal to or greater than the coverage under the canceled, terminated or lapsed policies, for premiums at not more than current market rates, are in full force and effect);
(xix) accelerate the collection of receivables or delay the payment of payables of the Company in a manner not consistent inconsistent with the capital budget Ordinary Course of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental AuthoritiesBusiness; or
(txx) agree or commit to do or engage in any of the foregoing.
(b) Nothing contained in this Agreement shall give Parent, directly or indirectly, the right to control or direct the Company’s operations prior to the Closing. Notwithstanding Prior to the foregoingClosing, Seller may permit the Acquired Companies to take commercially reasonable actions management of the Company shall exercise, consistent with respect to emergency situations so long as Seller shalland in accordance with the terms and conditions of this Agreement, upon receipt complete control and supervision over the operations of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of businessCompany.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Anika Therapeutics, Inc.)
Certain Restrictions. Except as required or permitted hereby, or as otherwise set forth in Schedule 6.3, during the Interim Period, Seller will cause the Acquired Companies and the Projects to operate in the ordinary course of business and consistent with past practice. Without limiting the foregoing, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent Debtor shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not tonot:
(a) permit or allow at any Encumbrances time, without limiting its obligation to constitute a Single Purpose Entity, incur any Indebtedness (other than Permitted Encumbrances) the Excess Working Capital Advances, Discretionary Funding Advances and Indebtedness evidenced by the Purchase Money Notes and pursuant to be imposed on or against any of the Purchased Assets or Interests, except with respect to the Interests as described in Section 3.4this Agreement);
(b) grant dissolve or liquidate at any waiver of any term under, exercise any option under, or give any consent with respect to, any Material Contract;
(c) sell, transfer, convey or otherwise dispose of any material Purchased Assets outside the ordinary course of business as of the Effective Date;
(d) other than accounts payable incurred in the ordinary course of business or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged time prior to such time as Debtor makes the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that Final Distribution and this Agreement is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership intereststerminated;
(i) commence file a voluntary petition for bankruptcy, (ii) file a petition or answer seeking any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustmentcomposition, winding-upreadjustment, liquidation, dissolutiondissolution or similar relief under any Law, composition (iii) make an assignment for the benefit of creditors, (iv) seek, consent or other relief with respect to it or its debts, or (D) acquiesce in the appointment of a receiver, trustee, custodian, conservator receiver or other similar official for it liquidator or for of all or any substantial part of its assetsproperties, (v) file an answer or other pleading admitting or failing to contest the material allegations of (iiA) make a general assignment for the benefit of its creditors, or take petition filed against it in any action proceeding described in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this Section 6.3(h);
clause (i) purchase any securities of any Person, except for short-term investments made in the ordinary course of business;
through (j) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of business, (ii) any Material Contract (including any Project Financing Documentiv), or (iiiB) any Contract involving total consideration throughout its term order adjudging it a bankrupt or insolvent or for relief against it in excess of $1,000,000 (except, in the case of the foregoing clauses (ii) and (iii), Contracts entered into in the ordinary course of business, consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations any bankruptcy or liabilities following the Closing);
(k) waive any claims having a value in excess of $1,000,000, individually or in the aggregate;
(l) make any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practiceinsolvency proceeding, or (iiivi) changes in salary allow itself to become unable to pay its obligations as they become due or allow the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to any sum of its ownership interests (other debts to be greater than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delayall of its property, defer, reduce or otherwise alter in any material respect any capital expenditures in at a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authoritiesfair valuation; or
(td) agree place or commit permit (voluntarily or involuntarily) any Lien to do be placed on any of the foregoing. Notwithstanding Collateral (other than the foregoingsecurity interest granted to Collateral Agent hereunder and ▇▇▇▇▇ expressly permitted pursuant to the Transaction Documents), Seller may permit the Acquired Companies and shall not take any action to take commercially reasonable actions interfere with Collateral Agent’s rights as a secured party with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of businessCollateral.
Appears in 1 contract
Certain Restrictions. Except as required or permitted hereby, or as otherwise set forth in Schedule 6.3on SECTION 4.07 OF THE DISCLOSURE SCHEDULE, during the Interim Period, Seller Sellers will cause the Acquired Companies and the Projects Company to operate in the ordinary course of business and consistent with past practice. Without limiting the foregoing, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not torefrain from:
(a) permit amending its limited partnership agreement (or allow other comparable corporate charter documents) or taking any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets or Interests, except action with respect to the Interests as described in Section 3.4any such amendment or any recapitalization, reorganization, liquidation or dissolution of any such limited partnership;
(b) grant any waiver authorizing, issuing, selling or otherwise disposing of any term under, exercise partnership interests or any option underOption with respect to the Company, or give modifying or amending any consent right of any holder of outstanding partnership interests of or Option with respect to, any Material Contractto the Company;
(c) selldeclaring, transfersetting aside or paying any dividend or other distribution in respect of the partnership interests of the Company not wholly owned by the Company, convey or directly or indirectly redeeming, purchasing or otherwise dispose acquiring any partnership interests of or any material Purchased Assets outside Option with respect to the ordinary course of business as of Company not wholly owned by the Effective DateCompany;
(d) other than accounts payable incurred in the ordinary course of business acquiring or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance disposing of, or indicating its consent to, approval of, or acquiescence inincurring any Lien on, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of any PersonAssets and Properties, except for short-term investments made in the ordinary course of business;
(j) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of business, (ii) any Material Contract (including any Project Financing Document), or (iii) any Contract involving total consideration throughout its term in excess of $1,000,000 (except, in the case of the foregoing clauses (ii) and (iii), Contracts entered into in the ordinary course of business, business consistent with past practice;
(i) entering into, which will amending, modifying, terminating (partially or completely), granting any waiver under or giving any consent with respect to (A) any Contract that would, if in existence on the date of this Agreement, be fully performed prior required to Closing and be disclosed in the Disclosure Schedule pursuant to SECTION 2.18(A) or (B) any material License or (ii) granting any irrevocable powers of attorney;
(f) violating, breaching or defaulting under in any material respect, or taking or failing to take any action that (with or without notice or lapse of time or both) would constitute a material violation or breach of, or default under, any term or provision of any License held or used by the Company or any Contract to which the Acquired Companies will have no further obligations Company is a party or liabilities following by which any of its respective Assets and Properties is bound;
(g) (i) incurring Indebtedness or (ii) voluntarily purchasing, canceling, prepaying or otherwise providing for a complete or partial discharge in advance of a scheduled payment date with respect to, or waiving any right of the Closing)Company under, any Indebtedness of or owing to the Company;
(h) engaging with any Person in any merger or other business combination;
(i) making capital expenditures or commitments for additions to property, plant or equipment constituting capital assets;
(j) making any change in the lines of business in which it participates or is engaged;
(k) waive any claims having a value in excess of $1,000,000, individually writing off or in the aggregate;
(l) make any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to writing down any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice their Assets and directives from ERCOT and other Governmental Authorities; or
(t) agree or commit to do any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken Properties outside the ordinary course of businessbusiness consistent with past practice; or
(l) entering into any Contract to do or engage in any of the foregoing.
Appears in 1 contract
Sources: Purchase Agreement (Viewpoint Corp)
Certain Restrictions. Except (a) During the Interim Period, except as required or permitted hereby, or as otherwise set forth in Schedule 6.37.02(a) or unless otherwise expressly contemplated by this Agreement, during the Interim Period, Seller Company and each Company Subsidiary will cause the Acquired Companies operate and the Projects to operate maintain their Properties in the ordinary course of business and consistent with past practice. Without limiting practice and the foregoing, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or Pre-Approved Development Expenditures and will refrain from taking any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, following actions without Parent’s consent (which consent shall not be unreasonably withheld, conditioned delayed or delayed conditioned, except, with respect to (except that this Section 6.3 shall not restrict x) any election of the Company or any Company Subsidiary to be taxable as a corporation or (y) the entering into of (1) any teaming or joint bidding arrangement with an EPC contractor or solar panel supplier, (2) any solar EPC contract or module supply agreement, (3) any amendment to the power purchase agreement between AV Solar Ranch 1 and Pacific Gas and Electric Company, or (4) any matter requiring Parent’s consent pursuant to clause (xix) below, in each case, which consent may be withheld in Parent’s absolute discretion):
(i) the transfer of Excluded Itemsamending its or any Company Subsidiary’s Organizational Documents in any material respect or undertaking any recapitalization, reorganization, liquidation, dissolution or winding up;
(ii) making any expenditures, loans or advances that are not Pre-Approved Development Expenditures except for those expenditures, loans or advances that do not exceed $25,000 individually and $100,000 in the termination or assignment of Excluded Contracts, aggregate;
(iii) the taking disposing of any action otherwise listed below to the extent reasonably required to accomplish any Properties of the Permitted Transactions Company or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not to:
(a) permit or allow any Encumbrances Company Subsidiary (other than Permitted Encumbrances) dispositions in amounts not to exceed $25,000 individually or $100,000 in the aggregate), or incurring any Liens or permitting any Liens to be imposed on or against any Property of the Purchased Assets Company or Interests, except with respect any Company Subsidiary other than Permitted Liens and Liens to the Interests as described in support letters of credit or Debt Obligations permitted under Section 3.47.02(a)(v);
(biv) grant (A) entering into any waiver Contract that would be a Company Contract if in existence on the date hereof or amending, modifying or terminating (partially or completely) any Company Contract; provided, however, that nothing in this clause shall inhibit the ability of the Company or any Company Subsidiary to enter into, amend, modify or terminate Contracts (x) in connection with the development of any term underProject (other than those Contracts covered in clause (xviii) below) in an amount not to exceed $125,000 individually, exercise any option under(y) as required by a Governmental Authority or (z) as may be required by Applicable Law or (B) amending, modifying or give any consent with respect to, any Material Contractterminating the Agua Caliente PPA;
(cv) sell, transfer, convey other than any Support Obligations or otherwise dispose cash collateral required by the terms of any material Purchased Assets outside power purchase agreement, interconnection agreement or agreement in connection with or for the ordinary course construction of business as network upgrades, in each case, included in the Pre-Approved Development Expenditures, issuing by or on behalf of the Effective DateCompany or any Company Subsidiary any Support Obligations, posting cash collateral or incurring Debt Obligations;
(dvi) other than accounts payable incurred in the ordinary course of business failing to maintain its legal existence or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of consolidating with any other Person;
(evii) canceling any debts owed to the Company or any Company Subsidiary, or waiving any claims or rights, having a value in the aggregate in excess of $25,000 individually or $100,000 in the aggregate;
(viii) settling or compromising any Tax liability or making any new, or changing any existing, Tax election, including any election by the Company or any Company Subsidiary to be taxable as a corporation;
(ix) increasing the level of wages, overall compensation or other benefits of any Company Employees or, other than as included in Schedule 7.02(a)(ix), hiring any new officer or employee;
(x) except as may be otherwise required to meet by the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets terms of any other Person;
(g) issue or sell any equity ownership interests;
existing Company Employee Benefit Plan, (i) commence entering into or modifying any caseemployment Contract, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for changing the benefit status, title or responsibilities, including promotion or termination, of its creditorsany officer of the Company or any Company Subsidiary, or take promoting any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any Company Employee (who is not an officer as of the acts set forth in date of this Section 6.3(h);
Agreement) to an officer position, (iiii) purchase paying any securities compensation to or for any Company Employee or officer or director of the Company or any Person, except for short-term investments made in the ordinary course of business;
(j) enter into, terminate or amend (i) any Material Permit Company Subsidiary other than in the ordinary course of businessbusiness and pursuant to existing Company Employee Benefit Plans, (iiiv) paying or agreeing to pay any Material Contract (including any Project Financing Document)bonus, incentive compensation, service award, severance, “stay bonus” or other like benefit, other than the Retention Bonuses and the Prorated Company 2010 Bonuses in accordance with Section 7.04(e) and Section 7.04(f) of this Agreement, respectively, or (iiiv) entering into, modifying or terminating any Contract involving total consideration throughout Company Employee Benefit Plan other than as required by Applicable Law;
(xi) granting any exclusive rights of any type or scope, including any exclusive rights with respect to the purchase of solar panels that is not terminable by the Company upon no more than thirty (30) days notice without payment;
(xii) failing to maintain insurance coverage substantially equivalent to its term existing insurance coverage as in effect on the date hereof unless such insurance coverage is not available on commercially reasonable terms, in which case the Company will obtain such insurance that it can at a cost not materially in excess of $1,000,000 what it is currently paying;
(except, xiii) changing in any material respect the case Company or any Company Subsidiary’s accounting methods or practices other than as required by GAAP;
(xiv) amending in any material respect any material Governmental Approvals or interconnection or transmission rights or positions;
(xv) amending or modifying the material terms of any existing lending or borrowing agreements or arrangements of the foregoing clauses Company and the Company Subsidiaries;
(iixvi) and declaring or paying any dividends or distributions in respect of the Company Securities (iii), Contracts entered into in the ordinary course of business, consistent with past practice, which will be fully performed other than tax distributions paid prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing);
(kxvii) waive subjecting the Company or any claims having a value in excess of $1,000,000, individually Company Subsidiary to any non-competition or in the aggregatenon-solicitation restrictions;
(lxviii) make entering into any arrangement related to teaming or joint bidding, EPC agreements, operating and maintenance service agreements, interconnection agreements or module supply agreements;
(xix) amending, extending or waiving either letter agreement listed on Schedule 1.01(d) except for the sole purpose of extending the exclusivity period set forth therein or increasing any payment therein and that does not modify the Company’s right to terminate such letter agreement; or
(xx) agreeing or committing to do or engage in any of the foregoing.
(b) During the Interim Period, (i) the Company and the Company Subsidiaries shall use their commercially reasonable efforts to take the pre-construction activities reasonably necessary to further the development of the Advanced Development Projects, including the pre-construction activities contemplated by the Pre-Approved Development Expenditures, (ii) the Company and the Company Subsidiaries shall use their commercially reasonable efforts to take the pre-construction activities reasonably necessary to further the development of the other Projects consistent with past practice, (iii) the Company and the Company Subsidiaries shall use commercially reasonable efforts to maintain all existing relationships with the material agents, customers and vendors of the Company and the Company Subsidiaries and any material election Governmental Approvals or interconnection or transmission rights or positions and (iv) the Company and the Company Subsidiaries shall pay all accounts payables and other obligations as they become due in the ordinary course and consistent with past practice. Notwithstanding anything in Section 7.02(a) to the contrary, the Company and the Company Subsidiaries may (i) in their sole discretion, subject to the restrictions set forth in clauses (iv), (xi) and (xviii) of Section 7.02(a), make Pre-Approved Development Expenditures or incur binding contractual commitments with respect thereto, but in no event shall such expenditures exceed by more than 10% the aggregate amounts set forth in the schedule of Pre-Approved Development Expenditures during the Interim Period, without Parent’s consent, which consent may be withheld in Parent’s absolute discretion and (ii) take commercially reasonable actions (A) with respect to Taxes;
emergency situations or (mB) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or as required to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable comply with Applicable Law or by a Governmental Authority, in the case of clause (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as reasonably determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authorities; or
(t) agree or commit to do any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations Company so long as Seller the Company shall, upon receipt becoming aware of notice of the need to take any such actions, promptly inform Buyer Parent of any such actions that are taken outside the ordinary course of business.
(c) Except as expressly contemplated by this Agreement, nothing contained in this Agreement shall give Parent, directly or indirectly, the right to control or direct the Company’s or any Company Subsidiary’s operations prior to the Closing. Prior to the Closing, the management of the Company shall exercise, consistent with and in accordance with the terms and conditions of this Agreement, complete control and supervision over the operations of the Company and the Company Subsidiaries.
Appears in 1 contract
Sources: Merger Agreement (First Solar, Inc.)
Certain Restrictions. Except as required or permitted herebyThe Company will, or as otherwise set forth in Schedule 6.3, during the Interim Period, Seller and will cause the Acquired Companies and the Projects to operate in the ordinary course of business and consistent with past practice. Without limiting the foregoingSubsidiaries to, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not torefrain from:
(a) permit amending their certificates or allow articles of incorporation or by-laws (or other comparable corporate charter documents) or taking any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets or Interests, except action with respect to the Interests as described in Section 3.4any such amendment or any recapitalization, reorganization, liquidation or dissolution of any such corporation;
(b) grant any waiver authorizing, issuing, selling or otherwise disposing of any term under, shares of capital stock of (except in connection with the exercise any option underof Options outstanding on the date hereof), or give any consent Option with respect to, the Company or any Material ContractSubsidiary, or modifying or amending any right of any holder of outstanding shares of capital stock of or Option with respect to the Company or any Subsidiary;
(c) selldeclaring, transfersetting aside or paying any dividend or other distribution in respect of the capital stock of the Company or any Subsidiary not wholly owned by the Company, convey or directly or indirectly redeeming, purchasing or otherwise dispose acquiring any capital stock of or any material Purchased Assets outside Option with respect to the ordinary course of business as of Company or any Subsidiary not wholly owned by the Effective DateCompany;
(d) other than accounts payable incurred in the ordinary course of business acquiring or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance disposing of, or indicating its consent to, approval of, or acquiescence inincurring any Lien (other than a Permitted Lien) on, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of any PersonAssets and Properties, except for short-term investments made in the ordinary course of business;
(j) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of business, business consistent with past practice;
(iii) any Material Contract (including any Project Financing Document), or (iii) any Contract involving total consideration throughout its term in excess of $1,000,000 (except, in the case of the foregoing clauses (ii) and (iii), Contracts entered into other than in the ordinary course of the business, entering into, amending, modifying, terminating (partially or completely), granting any waiver under or giving any consent with respect to (A) any of the Officer Employment Agreements, (B) any Contract that would, if in existence on the date of this Agreement, be required to be disclosed in the Disclosure Schedule pursuant to SECTION 3.19(a) or (C) any material License; (ii) granting any irrevocable powers of attorney; or (iii) entering into any Contract with a term greater than six months;
(f) violating, breaching or defaulting under in any material respect, or taking or failing to take any action that (with or without notice or lapse of time or both) would constitute a material violation or breach of, or default under, any term or provision of any License held or used by the Company or any Subsidiary or any Contract to which the Company or any Subsidiary is a party or by which any of their respective Assets and Properties is bound;
(i) incurring Indebtedness in an aggregate principal amount exceeding $100,000, or (ii) voluntarily purchasing, canceling, prepaying or otherwise providing for a discharge in advance of a scheduled payment date with respect to, or waiving any right of the Company or any Subsidiary under, any Indebtedness of or owing to the Company or any Subsidiary;
(h) engaging with any Person in any merger or other business combination;
(i) making capital expenditures or commitments for additions to property, plant or equipment constituting capital assets which, together with all such other expenditures since December 31, 1999, exceed $100,000;
(j) making any change in the lines of business in which they participate or are engaged;
(k) writing off or writing down any of their Assets and Properties outside the ordinary course of business consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations except as required by GAAP, PROVIDED that Parent is promptly notified of such write-off or liabilities following the Closing);
(k) waive any claims having a value in excess of $1,000,000, individually or in the aggregate;write-down; or
(l) make any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter entering into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authorities; or
(t) agree or commit to do or engage in any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of business.
Appears in 1 contract
Sources: Merger Agreement (Hotjobs Com LTD)
Certain Restrictions. Except as required or permitted hereby, or as otherwise set forth in Schedule 6.3, during the Interim Period, Seller will cause the Acquired Companies and the Projects to operate refrain from:
(a) disposing of any Loans (other than repayment thereof in the ordinary course of business and consistent with past practice. Without limiting the foregoingBusiness) or creating or incurring any Lien, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not to:
(a) permit or allow any Encumbrances (other than a Permitted Encumbrances) to be imposed Lien, on or against any of the Purchased Assets or Interests, except with respect to the Interests as described in Section 3.4Transferred Assets;
(b) grant entering into, amending, modifying, terminating (partially or completely), granting any waiver of any term under, exercise any option under, under or give giving any consent with respect to, to any Material Transferred Contract;
(c) sellviolating, transferbreaching or defaulting under in any material respect, convey or otherwise dispose taking or failing to take any action that (with or without notice or lapse of time or both) would constitute a material violation or breach of, or default under, any term or provision of any material Purchased Assets outside the ordinary course of business as of the Effective DateTransferred Contract;
(d) other than accounts payable incurred in the ordinary course of business incurring, purchasing, canceling, prepaying or otherwise incurred pursuant to the Material Contracts providing for a complete or short term, unsecured borrowings or intercompany loans or guarantees that are paid partial discharge in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations advance of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered scheduled payment date with respect to itto, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment waiving any right of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence inSeller under, any Loan of or owing to Seller in connection with the acts set forth in this Section 6.3(h);
(i) purchase any securities of any PersonTransferred Business, except for short-term investments made in the ordinary course of business;
(j) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of business, (ii) any Material Contract (including any Project Financing Document), or (iii) any Contract involving total consideration throughout its term in excess of $1,000,000 (except, in the case of the foregoing clauses (ii) and (iii), Contracts entered into in the ordinary course of business, business consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing);
(ke) waive engaging with any claims having Person in any Business Combination, unless such Person agrees in a value written instrument in excess form and substance reasonably satisfactory to Purchaser to adopt and comply with the terms and conditions of $1,000,000, individually or in the aggregatethis Agreement as though such Person was an original signatory hereto;
(lf) make engaging in any material election transaction with respect to Taxes;
(m) amend the Transferred Business with any officer, director, Affiliate or modify its Organizational Documents;
(n) commence Associate of Seller or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practiceCertain Shareholders, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authorities; or
(t) agree or commit to do any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice Associate of any such actionsofficer, promptly inform Buyer of any such actions taken director or Affiliate, either outside the ordinary course of businessbusiness consistent with past practice or other than on an arm's-length basis;
(g) entering into any Contract to do or engage in any of the foregoing (provided, however, that the foregoing shall not prohibit Seller from entering into a Back-Up Contract with respect to the sale of Seller's Business) following the expiration of the Exclusivity Period (as hereinafter defined);
(h) make any change in Seller's accounting methods, policies or practices, unless mandated by GAAP.
Appears in 1 contract
Certain Restrictions. Except as required or permitted hereby, or as otherwise set forth in Schedule 6.3(a) No Stockholder shall, during the Interim Voting Period, Seller will cause the Acquired Companies and the Projects to operate in the ordinary course of business and consistent with past practice. Without limiting the foregoing, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of knowingly take any action otherwise listed below to the extent reasonably required to accomplish that would make any of the Permitted Transactions its representations or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth warranties contained herein untrue or incorrect in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not to:
(a) permit or allow any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets or Interests, except with respect to the Interests as described in Section 3.4;
(b) grant any waiver of any term under, exercise any option under, or give any consent with respect to, any Material Contract;
(c) sell, transfer, convey or otherwise dispose of any material Purchased Assets outside the ordinary course of business as of the Effective Date;
(d) other than accounts payable incurred in the ordinary course of business respect or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have prevent or materially delay the performance of any of such Stockholder’s obligations hereunder; provided, further, that if a Stockholder becomes aware of any fact, event or circumstance arising after the date of this Agreement that would cause any of its representations or warranties contained herein to be untrue or incorrect in any material respect or that would reasonably be expected to prevent or materially delay the performance of any of such Stockholder’s obligations hereunder, such Stockholder shall notify Parent, the Merger Subs, the Company and adverse impact on the Acquired CompaniesOpCo as soon as reasonably practicable and no later than two (2) Business Days after becoming aware of such fact, taken as a whole;event or circumstance.
(fb) fail Each Stockholder hereby agrees not to maintain its existence commence or consolidate or merge with any other Person or acquire voluntarily participate in, and to take all or substantially all of the Assets actions necessary to opt out of any other Person;
(g) issue or sell class in any equity ownership interests;
(i) commence any case, proceeding or other class action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to itto, any claim, derivative or otherwise, against Parent, the Company (B) to adjudicate it including in its capacity as bankrupt or insolventmanaging member of OpCo), or (C) reorganizationOpCo, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all Merger Subs or any substantial part of its assets, or their respective successors (iia) make a general assignment for challenging the benefit of its creditors, or take any action in furtherance validity of, or indicating its consent to, approval seeking to enjoin or delay the operation of, any provision of this Agreement or acquiescence in, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of any Person, except for short-term investments made in the ordinary course of business;
(j) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of business, (ii) any Material Contract (including any Project Financing Document), Merger Agreement or (iii) any Contract involving total consideration throughout its term in excess of $1,000,000 (except, in the case of the foregoing clauses (ii) and (iii), Contracts entered into in the ordinary course of business, consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing);
(k) waive any claims having a value in excess of $1,000,000, individually or in the aggregate;
(l) make any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (ib) to the fullest extent required permitted under Law, alleging a breach of any duty or standard of conduct of the Company Board, the Special Committee or the Company (in its capacity as managing member of OpCo) in connection with the Merger Agreement, this Agreement or the transactions contemplated thereby or hereby; provided, that the foregoing shall not limit any actions taken by applicable Law the Stockholder in response to any claims commenced against the Stockholder or by any of his, her or its affiliates or representatives; provided, further that this Section 7(a) shall not limit or impair the rights or obligations of any party under the Merger Agreement or be deemed to be a Governmental Authoritywaiver of any rights of the Stockholder or any of his, her or its affiliates or representatives for any breach of this Agreement or the Merger Agreement.
(iic) for normal merit Each Stockholder shall permit Parent and cost of living increases consistent the Company to publish and disclose in all documents and schedules filed with past practicethe SEC, and any press release or (iii) changes in salary to other disclosure document that Parent or the extent necessary as determined by Seller Company determines in good faith to retain Transferrable Project Employees be necessary or desirable (it being understood that the names of individuals party to this Agreement will not be disclosed unless required by Applicable Law) in connection with the Mergers and any transactions related thereto, such Stockholder’s identity and ownership of Covered Shares and the nature of such Stockholder’s commitments, arrangements and understandings under this Agreement. Each Stockholder agrees to exceed 5% increases on an individual basispromptly give Parent and the Company any information he, she or (iv) changes it may reasonably require for the preparation of any such disclosure documents, and each Stockholder agrees to promptly notify Parent and the Company of any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or required corrections with respect to any of its ownership interests (other than distributions solely among written information supplied by such Stockholder specifically for use in any such disclosure document, if and to the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into extent that any Contract with any Related Party;
(s) delay, defer, reduce such information shall have become false or otherwise alter misleading in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authorities; orrespect.
(td) agree During the Voting Period, in the event that any Stockholder acquires record or commit beneficial ownership of, or the power to do vote or direct the voting of, any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions additional Shares or other voting interests with respect to emergency situations so long as Seller the Company, such Shares or voting interests shall, upon receipt without further action of notice the parties, be deemed Covered Shares and subject to the provisions of this Agreement, the number of Shares held by such Stockholders shall be deemed amended accordingly, and such Shares or voting interests shall automatically become subject to the terms of this Agreement. Each Stockholder shall promptly notify the Company and Parent of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of businessevent.
Appears in 1 contract
Sources: Voting Agreement (Bridge Investment Group Holdings Inc.)
Certain Restrictions. Except as required or permitted hereby, or as otherwise set forth In addition to and not in Schedule 6.3, during the Interim Period, Seller will cause the Acquired Companies limitation of Seller’s and the Projects to operate VCH’s covenants in the ordinary course of business and consistent with past practice. Without limiting the foregoingSection 6.04, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law)6.12, Seller will, during the Interim Period, and VCH will cause the Acquired Companies not toVCH and each Purchased Company to refrain from:
(a) permit except as disclosed in Schedule 6.05, amending its certificate of formation or allow limited liability company agreement in any Encumbrances (other than Permitted Encumbrances) to be imposed on material respect or against taking any of the Purchased Assets or Interests, except action with respect to the Interests as described in Section 3.4any such amendment or any recapitalization, reorganization, liquidation or dissolution;
(b) grant any waiver authorizing, issuing, selling or otherwise disposing of any term underMembership Interests or options, exercise any option underwarrants or other rights to acquire Membership Interests, or give modifying or amending any consent with respect to, right of any Material Contractholder of Membership Interests;
(c) selldeclaring, transfersetting aside or paying any distribution in respect of Membership Interests, convey or directly or indirectly redeeming, purchasing or otherwise dispose of acquiring any material Purchased Assets outside the ordinary course of business as of the Effective DateMembership Interests;
(d) other than accounts payable incurred in the ordinary course of business Ordinary Course, acquiring or otherwise incurred pursuant to the Material Contracts disposing of, or short termincurring any Lien (other than a Permitted Lien) on, unsecured borrowings or intercompany loans or guarantees that are paid in full any Assets and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other PersonProperties;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole[INTENTIONALLY LEFT BLANK];
(f) fail to maintain its existence or consolidate or merge engaging with any Person in any merger or other Person or acquire all or substantially all of the Assets of any other Personbusiness combination;
(g) issue or sell any equity ownership interests;
(i) commence any caseexcept as disclosed in Schedule 6.05, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of any Person, except for short-term investments made in the ordinary course of business;
(j) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of businessOrdinary Course, (ii) any Material Contract (including any Project Financing Document)making capital expenditures or commitments for additions to property, plant or (iii) any Contract involving total consideration throughout its term equipment constituting capital assets in excess of an aggregate amount exceeding $1,000,000 (except, in the case of the foregoing clauses (ii) and (iii), Contracts entered into in the ordinary course of business, consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing)100,000;
(kh) waive any claims having a value in excess of $1,000,000, individually or in the aggregate;
(l) make any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or reasonably and in good faith believed by a Governmental Authoritythe officers of the applicable Purchased Company to be in the best interests of the applicable Purchased Company, making any material change in
(iiA) for normal merit and cost of living increases consistent with past practiceany accounting, financial reporting, inventory, credit, allowance or Tax practice or policy, or (iiiB) changes any method of calculating any bad debt, contingency or other reserve for accounting, financial reporting or Tax purposes;
(i) other than in salary the Ordinary Course or to the extent necessary as determined required by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basisapplicable Law, adopting, entering into or becoming bound by any material Benefit Plan, employment-related Contract or collective bargaining agreement, or amending, modifying or terminating (ivpartially or completely) changes any such Benefit Plan, employment-related Contract or collective bargaining agreement, if such action will result in material additional cost to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Dateapplicable Purchased Company;
(qj) declaremaking any change in its fiscal year, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in change to a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authoritiescalendar year that is already being implemented; or
(tk) agree or commit entering into any Contract to do or engage in any of the foregoing. Notwithstanding any provision to the foregoingcontrary, Seller may permit nothing in this Section 6.05 shall require Seller, VCH or the Acquired Companies applicable Purchased Company to take commercially reasonable actions with respect to emergency situations so long as Seller shallrevise, upon receipt of notice dishonor or delay performance of any such actions, promptly inform Buyer of any such actions taken outside obligation under Contracts in existence prior to the ordinary course of businessdate hereof.
Appears in 1 contract
Certain Restrictions. Except as required or permitted herebyFrom the Execution Date until the Closing, or as otherwise Sellers shall cause each Acquired Company to, and each Acquired Company shall, refrain from taking any of the following actions, except (a) with respect to those matters set forth in Schedule 6.3Section 6.03 of the Sellers Disclosure Schedule, during the Interim Period, Seller will cause the Acquired Companies and the Projects to operate in the ordinary course of business and consistent with past practice. Without limiting the foregoing, except (b) as otherwise set forth in Schedule 6.3, required or expressly permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyerthis Agreement, (c) with Purchasers’ prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Itemsdelayed), (iid) as required by Law or the termination or assignment of Excluded Contracts, (iii) the taking terms of any action otherwise listed below to the extent reasonably Permit, or (e) as expressly required to accomplish be taken under any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not toCompany Contract:
(a) permit amending the Acquired Companies’ certificates of formation or allow the Acquired Companies Organizational Documents or taking any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets or Interests, except action with respect to the Interests as described in Section 3.4any recapitalization, reorganization, liquidation, dissolution or winding up of any Acquired Company;
(b) grant any waiver enter into a new line of business or abandonment or discontinuance of existing lines of business;
(c) authorizing, issuing, selling or otherwise disposing of any term under, exercise any option undermembership or partnership interests of, or give any consent other securities with respect to, any Material Contract;
(c) sellAcquired Company, transfer, convey or otherwise dispose modifying or amending any right of any material Purchased Assets outside the ordinary course holder of business as of the Effective Dateoutstanding membership or partnership interests of, or other securities with respect to, any Acquired Company;
(d) other than accounts payable incurred adopt any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in the ordinary course bankruptcy under any provisions of business federal or otherwise incurred pursuant state bankruptcy Law or consent to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations filing of any other Personbankruptcy petition against it under any similar Law;
(e) except as may be required to meet the requirements of applicable Laws splitting, combining or GAAPreclassifying any membership or partnership interests of, change or any accounting method or practice in a manner that is inconsistent other securities with past practice in a way that would reasonably be expected to have a material and adverse impact on the respect to, any Acquired Companies, taken as a wholeCompany;
(f) fail to maintain its existence acquiring any assets or consolidate properties, including any real property interests, or merge with any other Person transferring or acquire all or substantially all of the Assets disposing of any other Person;
(g) issue assets or sell properties, including any equity ownership interests;
Real Property, of any Acquired Company, except for (i) commence any caseacquisitions of spare parts, proceeding assets or other action under any existing properties valued at less than $200,000 individually or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or $750,000 in the aggregate and (ii) make a general assignment for the benefit purchase or sale of its creditors(x) natural gas, power, transmission or take any action in furtherance of, ancillary services or indicating its consent to, approval of, or acquiescence in, any (y) chemicals and other supplies relating to the operation and maintenance of the acts set forth Projects, in this Section 6.3(h);
the case of each of clauses (i) purchase any securities of any Person, except for short-term investments made and (ii) in the ordinary course of business;
(g) making or committing to make any capital expenditures in excess of $200,000, other than capital expenditures (A) in respect of curing any Forced Outage in an amount not to exceed $750,000 for such Forced Outage, (B) in respect of any Casualty Loss in accordance with Section 8.06, (C) funded by the Sellers or their Affiliates (other than the Acquired Companies to the extent such funding would be borne by the Acquired Companies on a post-Closing basis) or (D) any capital expenditures that are made in accordance with the Capital Expenditures Schedule that is attached to Section 6.03 of the Sellers Disclosure Schedule (which, with respect to this clause (D) and solely to the extent such expenditures are not borne by the Sellers or their Affiliates (or, prior to the Closing, the Acquired Companies) pursuant to clause (C) of this section, shall not exceed $3,000,000 in the aggregate);
(h) incurring any material Liens or permitting any material Liens to be imposed on any assets and properties of any Acquired Company (other than Permitted Liens);
(i) entering into, amending, modifying, accelerating, waiving any rights, or terminating (partially or completely and other than pursuant to the expiration of the term thereof) in any material respect any Company Contract (or any Contract that, if in existence on the date hereof would have been required to be disclosed on Section 4.14(a) of the Sellers Disclosure Schedule), other than, in each case, the entering into, amendment, modification or termination (whether partial or complete) of any Hedging Arrangements related to any Acquired Company which will expire prior to the Closing without any continuing obligation or liability on or following the Closing with respect to the Acquired Companies; provided, with respect to any Collective Bargaining Agreements listed in items 1-4 in Section 4.14(a)(xxi) Sellers may amend or modify such Collective Bargaining Agreements to the extent required by applicable Law (including good faith obligations to bargain as required by Law), and Sellers may enter into an extension, not to exceed one (1) year, so long as such extension does not include any material terms related to the Business Employees other than salary increases that are entered into in the ordinary course of business or as required by Applicable Law;
(j) enter intoexcept for Indebtedness that will be discharged in full at the Closing, terminate voluntarily incurring Indebtedness pursuant to clause (a) of the definition of Indebtedness in an aggregate principal amount exceeding $1,000,000 (net of any amounts of Indebtedness discharged during such period);
(k) canceling, compromising, settling, assigning or amend transferring:
(i) any Material Permit actual or potential indemnification claims under or pursuant to Section 11.01(c) of the NRG Purchase Agreement; or
(ii) any material dispute or claim that would reasonably be expected to result in (A) a non-current liability exceeding $200,000 becoming due from any Acquired Company after the Closing, or (B) non-monetary obligations on the Purchasers, their Affiliates or the Acquired Companies following the Closing;
(l) increasing or decreasing the compensation of any of its managers, directors, officers, employees or other individual service providers (in the case of employees or other individual service providers with an annual base salary or annual base compensation, as applicable, of $200,000 or more), other than in the ordinary course of business, as required by Law, or as required pursuant to the terms of a Company Benefit Plan or Company Contract in effect as of the date of this Agreement;
(m) (A) hiring, engaging, or terminating (other than for cause) the employment or engagement of any manager, officer or employee of, or other individual service provider to, any Acquired Company, other than in the ordinary course of business or to fill vacant positions in each case who will earn (or prior to such termination did earn) an annual base salary or annual base compensation, as applicable, of $200,000 or more or (B) implementing any group employee layoffs, furlough, reductions in force, or other voluntary or involuntary employment termination programs, other than individual employee terminations in the ordinary course of business (subject to the foregoing clause (A), if applicable);
(n) other than in the ordinary course of business or as required pursuant to Applicable Law, or the terms of a Company Benefit Plan in effect as of the date of this Agreement, (i) adopting, materially amending, materially modifying or terminating any Company Benefit Plan (including a Benefit Plan that would constitute a material Company Benefit Plan if in effect as of the date hereof), (ii) accelerating the vesting or payment of any Material Contract (including compensation or benefit under any Project Financing Document)Company Benefit Plan, or (iii) granting any Contract involving total consideration throughout its term new severance, change in excess control, retention, transaction, termination or similar compensation or benefits of $1,000,000 200,000 or more to any employee, individual independent contractor, officer or director;
(except, in i) transferring into any Acquired Company the case employment of any person whose employment duties are not related to the Business as of the foregoing clauses date of this Agreement; or (ii) and (iii), Contracts entered into in transferring out of any Acquired Company the ordinary course employment of business, consistent with past practice, which will be fully performed prior any person whose employment duties are related to Closing and under which the Acquired Companies will have no further obligations or liabilities following Business as of the Closing)date of this Agreement;
(kp) waive except as required by Law, materially changing any claims having a value in excess method of $1,000,000accounting or accounting practice of the Acquired Companies, individually except as required by Applicable Law, the Accounting Principles or in the aggregateGAAP;
(lq) make making any new, changing any existing, or rescinding any material election with respect to Taxes;
(m) amend Taxes or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter changing a Tax accounting period, entering into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes closing agreement as described in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as Section 7121 of the Effective Date;
Code (q) declareor any provision of any state, set aside, make or pay any cash local or non-cash dividend U.S. Law having similar effect) or other distribution on otherwise settling or with compromising any material Tax liability, surrendering any right to claim a material Tax refund, commencing or pursuing a voluntary disclosure agreement, or waiving or extending any statute of limitations period in respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);material Taxes; or
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce agreeing or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authorities; or
(t) agree or commit committing to do or engage in any of the foregoing. Notwithstanding the foregoinganything else contained in this Section 6.03, Seller (A) Sellers and any Acquired Company may permit the Acquired Companies to take commercially reasonable any actions consistent with Good Industry Practice with respect to emergency situations or to comply with the terms of any Company Contract or Law so long as Seller Sellers shall, upon receipt of notice of any such actions, promptly inform Buyer Purchasers of any such actions taken outside the ordinary course of businessbusiness and (B) Sellers and the Acquired Companies shall have no obligation to, or to cause any Acquired Company to, enter into any Contract, including any Hedging Arrangements.
Appears in 1 contract
Certain Restrictions. Except as required or permitted hereby, or as otherwise set forth in Schedule 6.3, during The parties hereto hereby agree that notwithstanding anything to the Interim Period, Seller will cause the Acquired Companies and the Projects to operate contrary contained in the ordinary course Indenture, at any time that Qualified Holders are the beneficial owners of business at least a majority in aggregate principal amount of the Notes then Outstanding, without the prior written consent of Holders of at least a majority of the aggregate principal amount of the Notes then Outstanding, the Company will not, and consistent will not permit any of its Restricted Subsidiaries to, directly or indirectly:
a. create, incur, assume, guarantee, acquire, become liable, contingently or otherwise, with past practice. Without limiting respect to any Permitted Indebtedness of the foregoingtype described in clause (15) of the definition of “Permitted Indebtedness” in the Indenture;
b. make any Permitted Investment of the types described in clause (1), except (3)(v), (7) or (9) of the definition of “Permitted Investment” in the Indenture; provided however that in respect of clause (1), this restriction shall apply only in respect of Persons that will become, after such an Investment, a Guarantor or that will merge or consolidate into the Company or a Guarantor (other than the Binghamton Acquisition and Permitted Business Acquisitions permitted by Section 6.8(f) of the Credit Agreement as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect on the date hereof (each of which, upon consummation, will be owned by a Guarantor)); it being understood that nothing herein shall limit Permitted Investments by the Company in the Guarantors as of the Effective Date date hereof or amended the creation of new Guarantors;
c. create, incur, assume or permit or suffer to exist any Permitted Liens of the type described in clause (17) of the definition of “Permitted Liens” in the Indenture;
d. consummate an Asset Sale, other than the WB Disposition;
e. make (by purchase, merger, consolidation or otherwise) any Asset Acquisition or Permitted Business Acquisition, other than the Binghamton Acquisition and Permitted Business Acquisitions permitted by Section 6.8(f) of the Credit Agreement as permitted hereby in effect on the date hereof;
f. consummate an Asset Swap pursuant to Section 4.10(f) of the Indenture;
g. issue or sell or enter into any agreement or arrangement for the issuance and sale of any shares of its Capital Stock, any securities convertible into or exchangeable for its Capital Stock, or any warrants, options or other rights for the purchase or acquisition of shares of its Capital Stock, except:
(1) as consented to provided in Section 11.1 of the Credit Agreement;
(2) the issuance of the Company’s 12.75% cumulative exchangeable preferred stock;
(3) the issuance of any new class of preferred stock by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except Company; provided that this Section 6.3 shall not restrict such preferred stock (i) the transfer of Excluded Itemsmatures no earlier than December 31, 2011, (ii) the termination or assignment of Excluded Contractsis non-cash pay until at least December 31, 2011, (iii) the taking of is not convertible or exchangeable into any action otherwise listed below to the extent reasonably required to accomplish other security or for any of the Permitted Transactions or value and (iv) is not Voting Stock and does not have any equity voting rights, control rights, rights to elect directors or similar rights except for voting rights as may be otherwise required by the termination mandatory provisions of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not to:
(a) permit or allow any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets or Interests, except with respect to the Interests as described in Section 3.4law;
(b4) grant any waiver the issuance of any term under, exercise any option under, or give any consent with respect to, any Material Contract;common stock by a Subsidiary of the Company to the Company; and
(c5) sell, transfer, convey or otherwise dispose the issuance of any material Purchased Assets outside common stock by the ordinary course of business as of the Effective Date;
(d) other than accounts payable incurred in the ordinary course of business Company; provided that such common stock is not Voting Stock and does not have any equity voting rights, control rights, rights to elect directors or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable similar rights except for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person;
(e) except voting rights as may be otherwise required to meet by the requirements mandatory provisions of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a wholelaw;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of any Person, except for short-term investments made in the ordinary course of business;
(j) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of business, (ii) any Material Contract (including any Project Financing Document), or (iii) any Contract involving total consideration throughout its term in excess of $1,000,000 (except, in the case of the foregoing clauses (ii) and (iii), Contracts entered into in the ordinary course of business, consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing);
(k) waive any claims having a value in excess of $1,000,000, individually or in the aggregate;
(l) make any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authorities; or
(t) agree or commit to do any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of business.
Appears in 1 contract
Certain Restrictions. Except as required or permitted hereby, or as otherwise set forth in Schedule 6.3, during the Interim Period, Seller Earnshaw will cause the Acquired Companies Company and the Projects its Subsidiaries to operate in the ordinary course of business and consistent with past practice. Without limiting the foregoing, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not torefrain from:
(a) permit amending their certificates or allow articles of incorporation or by-laws (or other comparable corporate charter documents) or taking any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets or Interests, except action with respect to the Interests as described in Section 3.4any such amendment or any reorganization, liquidation or dissolution of any such corporation;
(b) grant any waiver authorizing, issuing, selling or otherwise disposing of any term under, exercise any option undershares of, or give any consent option, right or warrant to purchase with respect to, capital stock of the Company or any Material ContractSubsidiary, or modifying or amending any right of any holder of outstanding shares of, or any option, right or warrant to purchase with respect to, capital stock of the Company or any Subsidiary;
(c) selldeclaring, transfersetting aside or paying any dividend or other distribution in respect of the capital stock of the Company or any Subsidiary not wholly owned by the Company, convey or directly or indirectly redeeming, purchasing or otherwise dispose of acquiring any material Purchased Assets outside the ordinary course of business as shares of, or any option, right or warrant to purchase with respect to, capital stock of the Effective DateCompany or any Subsidiary not wholly owned by the Company;
(d) other than accounts payable incurred except for any payments or transactions permitted or required by the terms of this Agreement or the Transaction Documents, including, without limitation, the payment of any compensation arising under the employment agreement between the Company and ▇▇ ▇▇▇▇▇▇▇▇ in an amount not to exceed $75,000 for the ordinary course of business period between January 1, 2004 and the Closing date, paying or otherwise incurred distributing any funds to Earnshaw or any Affiliate thereof; provided, however, that notwithstanding the foregoing, the Company may pay (i) the compensation and benefits provided by the Company to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ in accordance with the terms of his employment agreement, and (ii) any rent pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full terms and discharged prior to conditions of the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other PersonReal Estate Lease;
(e) except as may be required to meet the requirements of applicable Laws acquiring or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance disposing of, or indicating its consent toincurring any Lien (other than a Permitted Lien) on any assets and properties, approval of, or acquiescence in, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of any Person, except for short-term investments made in the ordinary course of business;
(j) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of business, (ii) any Material Contract (including any Project Financing Document), or (iii) any Contract involving total consideration throughout its term in excess of $1,000,000 (except, in the case of the foregoing clauses (ii) and (iii), Contracts entered into in the ordinary course of business, business consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing)on any Shares;
(kf) waive (i) entering into, amending, modifying, terminating (partially or completely), granting any claims having a value in excess of $1,000,000, individually waiver under or in the aggregate;
(l) make giving any material election consent with respect to Taxes;
(m) amend any Permit or modify its Organizational Documents;
(n) commence Contract of the Company or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project EmployeesSubsidiary thereof, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases as may be consistent with past practice, or (iiiii) changes granting any irrevocable powers of attorney;
(g) violating, breaching or defaulting under in salary any material respect, or taking or failing to take any action that (with or without notice or lapse of time or both) would constitute a material violation or breach of, or default under, any term or provision of any Permit or Contract of the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basisCompany or any Subsidiary thereof;
(h) (i) incurring any Indebtedness, or (ivii) changes to voluntarily purchasing, canceling or otherwise providing for a complete or partial discharge in advance of a scheduled payment date with respect to, or waiving any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as right of the Effective Date;
(q) declareCompany or any Subsidiary under, set aside, make any Indebtedness owing to the Company or pay any cash or non-cash dividend or other distribution on or with respect to any of its ownership interests Subsidiary (other than distributions solely among Indebtedness of the Acquired Companies) except for NAPS Dispositions (as defined in Company or a Subsidiary owing to the Project Financing AgreementCompany or a wholly-owned Subsidiary);
(ri) enter into any Contract engaging with any Related Party;
(s) delay, defer, reduce or otherwise alter Person in any material respect any capital expenditures merger, consolidation or similar transaction, sale, disposition or other transfer of ten percent (10%) or more, in a manner not consistent with the capital budget aggregate, of the Acquired Companies provided assets of the Company or its Subsidiaries, or issue, or any transaction which is similar in form, substance, purpose or effect to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authorities; or
(t) agree or commit to do any of the foregoing. Notwithstanding ;
(j) making capital expenditures or commitments for additions to property, plant or equipment constituting capital assets;
(k) making any change in the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt lines of notice business in which they participate or are engaged;
(l) writing off or writing down any of any such actions, promptly inform Buyer of any such actions taken their assets and properties outside the ordinary course of businessbusiness consistent with past practice;
(m) entering into, amending, modifying or terminating (partially or completely), any Contract that is, or had it been in existence on the date of this Agreement would have been required to be, disclosed in Schedule 5.9(a); or
(n) entering into any agreement to do or engage in any of the foregoing.
Appears in 1 contract
Sources: Stock Purchase Agreement (Ebix Inc)
Certain Restrictions. Except as required or permitted hereby(a) During the Interim Period, or as otherwise set forth the Company shall and shall cause each of its Subsidiaries to operate in Schedule 6.3the ordinary course consistent with past practice, except for the Pre-Closing Restructuring. Without limiting the generality of the foregoing, during the Interim Period, Seller will cause except as set forth in Schedule 6.02(a), the Acquired Companies Pre-Approved Interim Expenditures, Budgeted Operating Project Expenses, debt service costs including interest payments for existing Debt Obligations and letters of credit in existence on the Projects date hereof or otherwise permitted to operate be incurred pursuant to this Section 6.02, the Pre-Closing Restructuring and all matters in connection with the Route 66 Project and Palouse Project sales, the Company shall not and shall not permit any of its Subsidiaries to take any of the following actions without Buyers consent (such consent, in the case of the following clauses (iv), (vii) and (ix), not to be unreasonably withheld, delayed or conditioned); provided that if Buyers fail to respond to any request for consent within ten (10) days, or in the case of Section 6.02(a)(xv) within three (3) days, of such request being made, Buyer shall be deemed to have consented to such request:
(i) amend its or any Company Entity’s Organizational Documents in any material respect or undertaking any recapitalization, reorganization, liquidation, dissolution or winding up;
(ii) make any expenditures, loans or advances, except for those expenditures, loans or advances made in the ordinary course of business business, including any intercompany transactions and consistent with past practice. Without limiting that do not exceed 10% over the foregoing, except as otherwise set forth Pre- Approved Interim Expenditure or Budgeted Operating Project Expenses per Project or $3,000,000 in Schedule 6.3, required the aggregate over the Pre-Approved Interim Expenditure or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, Budgeted Operating Project Expenses;
(iii) the taking dispose of any action otherwise listed below to the extent reasonably required to accomplish properties, or incur any of the Permitted Transactions Liens or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to permit any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not to:
(a) permit or allow any Encumbrances (other than Permitted Encumbrances) Liens to be imposed on any property, other than (A) Permitted Liens and Liens to support letters of credit or against any of the Purchased Assets Debt Obligations permitted under Section 6.02(c), (B) pursuant to existing Contracts or Interestscommitments, except (C) with respect to Operating Entities, dispositions in connection with ordinary course operations and maintenance (D) with respect to the Interests as described Earnout Projects, dispositions in Section 3.4connection with ordinary course construction (E) with respect to Platform Entities (other than Earnout Projects), ordinary course dispositions with a value less than $1,000,000 in the aggregate or (F) other than any transfer between two Company Entities;
(biv) grant enter into any waiver of Contract that would be a Company Contract if in existence on the date hereof or materially amend, materially modify or terminate (partially or completely) any term underCompany Contract, exercise any option under, or give any consent with respect to, any Material Contract;
(c) sell, transfer, convey or otherwise dispose of any material Purchased Assets outside the ordinary course of business as of the Effective Date;
(d) other than accounts payable incurred in the ordinary course of business or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) ordinary course purchase or work orders or similar instruments, (B) renewals or extensions of Company Contracts in accordance with the terms thereof, (C) amendments that are not adverse to have an order for relief entered any Company Entity, (D) with respect to it, Contracts evidencing Debt Obligations permitted by Section 6.02(c) or (BE) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of any Person, except for short-term investments made in the ordinary course of business;
(jv) enter intosubject to 6.02(c), terminate post cash collateral or amend incur Debt Obligations, other than (A) incurring Debt Obligations under existing project level facilities or the existing revolving credit facility to fund project development in a manner consistent with the Pre-Approved Interim Expenditures, or (B) posting cash collateral or letters of credit in the ordinary course of business in connection with Earnout Projects, or otherwise in an amount less than $1,500,000 in the aggregate with respect to non-Earnout Projects;
(vi) fail to maintain its legal existence or consolidate with any other Person;
(vii) cancel in writing any debt owed to any Company Entity, or waive in writing any claim or right other than for value, having a value in excess of $250,000 in the aggregate;
(viii) except as required by Applicable Law, settle or compromise any material Tax liability or make any new, or change any existing, material Tax election, including any election by any Company Entity to be taxable as a corporation;
(ix) other than specifically contemplated by or agreed to in accordance with the terms of Schedule 6.02(a)(ix), except in the ordinary course of business consistent with past practice, or as otherwise required by Applicable Law or by the terms of any existing Company Employee Benefit Plan, (i) enter into or modify any Material Permit employment Contract, (ii) change the status, title or responsibilities, including the promotion or termination, of any officer of the Company or promote any Company Employee (who is not an officer as of the date of this Agreement) to an officer position, (iii) increase the level of wages, overall compensation or other benefits of any Company Employees, (iv) pay any compensation to or for any Company Employee or officer or director of any Company Entity other than in the ordinary course of businessbusiness and pursuant to existing Company Employee Benefit Plans, (iiv) hire any Material Contract (including any Project Financing Document)new employee, officer or (iii) any Contract involving total consideration throughout its term individual independent contractor with annual base compensation in excess of $1,000,000 100,000 (exceptother than to fill vacant positions), (vi) terminate without cause the employment of any Company Employee with annual base compensation in excess of $100,000, (vii) pay or agree to pay any bonus, incentive compensation, service award, severance, “stay bonus” or other like benefit or (viii) enter into, establish, modify or terminate any Company Employee Benefit Plan;
(x) change in any material respect the case Company Entity’s accounting methods or practices other than as required by GAAP;
(xi) seek to amend in any material respect any material Governmental Approvals;
(xii) subject any Company Entity to any non-competition or non- solicitation restrictions;
(xiii) declare or pay any dividends or distributions in respect of the foregoing clauses Company Securities (ii) and (iii), Contracts entered into in the ordinary course of business, consistent with past practice, which will be fully performed other than customary tax distributions paid prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing);
(k) waive any claims having a value in excess of $1,000,000, individually or in the aggregate;
(l) make any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(oxiv) enter into any partnership, joint venture, strategic alliance or similar contract or arrangementnew tax equity financing;
(pxv) increase settle or initiate (which shall not include counter claims) any Action except for any Action that that involves the compensation payable payment of money damages of less than $1,000,000 in the aggregate and that does not impose restrictions or to become payable or limitations on the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as operation of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authoritiesbusiness; or
(txvi) agree or commit to do or engage in any of the foregoing. Notwithstanding .
(b) During the foregoingInterim Period, Seller may permit the Acquired Companies Company Entities shall use their commercially reasonable efforts to (i) take the pre-construction or construction activities reasonably necessary to further the development of the Earnout Projects, including the pre-construction and construction activities contemplated by the Pre-Approved Interim Expenditures, (ii) use their commercially reasonable efforts to take commercially reasonable actions the pre-construction activities reasonably necessary to further the development of the other Projects consistent with respect past practice, (iii) maintain all of their existing relationships with material agents, customers and vendors and any material Governmental Approvals or interconnection or transmission rights or positions and (iv) pay all accounts payables and other obligations as they become due in the ordinary course and consistent with past practice.
(c) During the Interim Period, the Company may incur Debt Obligations to emergency situations so long as Seller shallfinance any matter set forth in the Pre-Approved Interim Expenditures, upon receipt of in an aggregate amount up to $150 million, provided that first the Company provides Buyers with written notice of its intention to incur such Debt Obligations (such notice to include the proposed amount and terms of such Debt Obligations and be provided together with any proposed term sheets relating to such actionsfinancing with a third party financing source) and if by the end of the period of 10 days following such notice being given, promptly inform Buyer Buyers have not provided such financing, then the Company may incur such Debt Obligations with a third party; provided that such Debt Obligation is able to be prepaid prior to or at Closing in accordance with its terms without consent of the lender and without any such actions taken outside obligations that survive repayment other than indemnity obligations (an “Interim Debt Obligation”).
(d) Except as provided in this Section 6.02, nothing contained in this Agreement shall give Buyers, directly or indirectly, the right to control or direct Sellers’ or the Company Entities’ operations prior to the Closing. Prior to the Closing, the management of Sellers and Company Entities shall exercise, consistent with and in accordance with the terms and conditions of this Agreement, complete control and supervision over their operations.
(e) From the date hereof until the Closing Date, Buyers shall and shall cause Guarantor and each of their respective Subsidiaries to (i) conduct their businesses in the ordinary course of businessbusiness except as contemplated by or in connection with this Agreement and (ii) not take any action that would result in an adjustment to the Exchange Rate (as defined in the Exchangeable Notes Indenture), determined as if the Exchangeable Notes were issued on the date hereof, it being understood that any regular quarterly cash dividend or distribution that does not exceed $0.1717 paid on or prior to January 1, 2015, will not be deemed to result in an adjustment. Notwithstanding anything to the contrary herein, the sole remedy for a breach of this Section 6(e)(ii) will be that the Exchange Rate (as defined in the Exchangeable Notes Indenture) at issuance of the Exchangeable Notes will be adjusted to the Exchange Rate that would have been in effect if the Exchangeable Notes had been issued as of the date this Agreement, as if the Initial Dividend Threshold (as defined in the Exchangeable Notes Indenture) for dividends paid in each calendar quarter in 2014 were $0.1717 per quarter.
Appears in 1 contract
Sources: Purchase and Sale Agreement
Certain Restrictions. Except as required or permitted hereby, or as otherwise set forth described in Schedule 6.3, during the Interim PeriodOffering Memorandum, Seller will cause the Acquired Companies Company and the Projects Subsidiaries to operate in the ordinary course of business and consistent with past practice. Without limiting the foregoing, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not torefrain from:
(a) permit amending their corporate charter documents in any material respect or allow taking any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets or Interests, except action with respect to the Interests as described in Section 3.4any such amendment or any recapitalization, reorganization, liquidation or dissolution of any such corporation;
(b) grant any waiver authorizing, issuing, selling or otherwise disposing of any term under, exercise shares of capital stock or other equity interest of or any option underOption with respect to the Company or any Subsidiary, or give modifying or amending any consent right of any holder of outstanding equity of or Option with respect to, to the Company or any Material ContractSubsidiary;
(c) selldeclaring, transfersetting aside or paying any dividend or other distribution in respect of the capital stock or equity interest of the Company or directly or indirectly redeeming, convey purchasing or otherwise dispose acquiring any capital stock or other e quity of or any material Purchased Assets outside Option with respect to the ordinary course Company, in each case other than with the proceeds of business as sales of the Effective DateMP Assets;
(d) other than accounts payable incurred in the ordinary course of business or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of any Person, except for short-term investments made in the ordinary course of business;
(j) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of business, (ii) any Material Contract (including any Project Financing Document), or (iii) any Contract involving total consideration throughout its term in excess of $1,000,000 (except, in the case of the foregoing clauses (ii) and (iii), Contracts entered into in the ordinary course of business, consistent with past practice, which will acquiring or disposing of, or incurring any Lien (other than a Permitted Lien) on, any Assets and Properties individually or in the aggregate material to the Business or Condition of the Company;
(e) except in the ordinary course of business and in an action that would not reasonably be fully performed prior expected to Closing and result in a material adverse effect on the Business or Condition of the Company, entering into, amending, modifying, terminating (partially or completely), granting any waiver under which or giving any consent with respect to any Contract or License material to the Acquired Companies will have no further obligations Business or liabilities following Condition of the ClosingCompany;
(f) other than in the ordinary course of business, voluntarily incurring Indebtedness (net of any amounts of Indebtedness discharged during such period);
(kg) waive engaging with any claims having a value Person in excess of $1,000,000, individually any merger or in the aggregateother business combination;
(lh) make any material election other than in the ordinary course of business consistent with respect to Taxes;
(m) amend past practice or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental AuthorityLaw, (ii) for normal merit and cost of living increases consistent with past practicedescribed in the Offering Memorandum, or done in connection with the transactions described in Section 6.08, adopting, entering into or becoming bound by any material Benefit Plan, employment-related Contract or collective bargaining agreement, or amending, modifying or terminating (iiipartially or completely) changes in salary any such Benefit Plan, employment-related Contract or collective bargaining agreement; provided, that Seller will assume all obligations under the KGen Partners LLC Profit Sharing Plan (also known as the “KEEPP” plan), and Seller will indemnify the Company against any liability on and after the Closing related to the extent necessary KEEPP plan including, as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basisapplicable, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to any Liabilities arising in connection with the assumption thereof by Seller or any change of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement)control or related payments required to be made thereunder;
(ri) enter into any Contract with any Related Party;
(s) delayfailing to maintain in full force and effect insurance policies covering the Company and its Subsidiaries, defer, reduce or otherwise alter in any material respect any capital expenditures and their respective Assets and Properties and businesses in a manner not form and amount consistent with their current insurance program (except in the capital budget ordinary course of the Acquired Companies provided to Buyer as the Effective Date, except as would be business consistent with prudent operating past practice to the extent any such policies expire in accordance with their terms and directives from ERCOT and other Governmental Authoritiesthey are replaced with policies consistent with good practice for companies in the same industry, subject to insurance market conditions; or
(tj) agree or commit entering into any Contract to do or engage in any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of business.
Appears in 1 contract
Sources: Membership Interest Purchase and Sale Agreement (Kgen Power Corp)
Certain Restrictions. Except as required or permitted hereby, or as otherwise set forth expressly consented to in Schedule 6.3writing by Buyer, during the Interim Period, Seller will cause (a) operate the Acquired Companies Project and the Projects to operate all Purchased Assets in the ordinary course of business consistent with Prudent Engineering and Operating Practices, (b) preserve, maintain and protect in all material respects consistent with past practicepractices the Project, all Purchased Assets, rights, the Property and other properties and goodwill of Seller (including maintaining in all material respects Seller's relationships with customers, suppliers and Governmental Authorities), and (c) maintain the Permits in accordance with past practices. Without limiting the foregoing, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as expressly consented to in writing by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause Seller shall not, with respect to the Acquired Companies not toProject, Purchased Assets or the Property:
(ai) permit or allow (A) create any Encumbrances Lien (other than a Permitted EncumbrancesLien) to be imposed on or against any of the Purchased Assets of Seller, or Interests, except with respect to (B) permit any Lien (other than a Permitted Lien) against any of the Interests as described in Section 3.4Assets of Seller;
(bii) (A) enter into any Contract that is effective beyond May 1, 2025 involving total consideration throughout its term in excess of $50,000 individually or $500,000 in the aggregate for all such Contracts or (B) grant any waiver of any material term under, exercise any option under, or give any material consent with respect to, any Material ContractContract involving total consideration throughout its term in excess of $50,000 individually or $500,000 in the aggregate for all such waivers;
(ciii) sell, transfer, convey sell or otherwise dispose of any of its material Purchased Assets outside the ordinary course of business as of the Effective Date;
(d) assets or properties, other than accounts payable incurred sales or dispositions in the ordinary course of business (including sales or otherwise incurred dispositions pursuant to power purchase or sale Contracts), sales or dispositions of obsolete or surplus assets, sales or dispositions in connection with the normal repair and/or replacement of assets or properties, sales or dispositions of Excluded Assets, or sales or dispositions in accordance with any Material Contracts Contract.
(iv) sell, transfer, assign or short term, unsecured borrowings convey the emissions allowances or intercompany loans emission reduction credits set forth on Schedule 3.15(f) or guarantees any emissions allowances or emission reduction credits allocated to Seller after the date hereof; provided that are paid nothing in full and discharged prior to this clause (iv) shall restrict the Closinguse after the date hereof by Seller of any emissions allowances or emission reduction credits in the ordinary course of business;
(v) other than accounts payable in the ordinary course of business, incur, create, assume or otherwise become liable for indebtedness for borrowed money or Indebtedness, issue any debt securities or assume or guarantee the obligations of any other Person;
(evi) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on may adversely affect the Acquired CompaniesBusiness, taken as a wholethe Purchased Assets or the Property;
(fvii) fail to maintain its existence corporate or limited liability company existence, as applicable, merge or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other PersonPerson or take any other action that would cause Seller to be treated as other than a disregarded entity for federal income Tax purposes prior to the Closing;
(gviii) issue issue, reserve for issuance, pledge or otherwise encumber, sell or redeem or enter into any equity ownership interestsContract with respect to any Equity Interests or other Equity Securities of Seller;
(iix) commence any caseliquidate, proceeding dissolve, recapitalize, reorganize or other action under any existing otherwise wind up its business or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this Section 6.3(h)operations;
(ix) purchase any securities of any Person, except for short-term investments made in the ordinary course of businessbusiness consistent with past practices;
(j) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of business, (ii) any Material Contract (including any Project Financing Document), or (iii) any Contract involving total consideration throughout its term in excess of $1,000,000 (except, in the case of the foregoing clauses (ii) and (iii), Contracts entered into in the ordinary course of business, consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing);
(k) waive any claims having a value in excess of $1,000,000, individually or in the aggregate;
(l) make any material election with respect to Taxes;
(mxi) amend or modify its Organizational Documents;
(nxii) commence cancel any Indebtedness or settle or waive any Claims or rights having a value in excess of $25,000;
(xiii) make any new, or change any existing, election with respect to Taxes, or settle any ClaimTax Liability that may adversely affect Buyer or Seller after the Closing;
(oxiv) enter into incur any partnership, joint venture, strategic alliance capital expenditure or similar contract or arrangementmajor maintenance expenditure in excess of the amounts set forth on the Budget;
(pxv) increase except in the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost ordinary course of living increases business consistent with past practicepractices or as otherwise required by the terms of any collective bargaining agreement, increase salaries or (iii) changes in salary benefits payable to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective DateEmployees;
(qxvi) declarefail to discharge any material Liability of Seller or make any material payment of Seller as it comes due except in connection with a reasonable good faith dispute;
(xvii) (A) amend, set aside, make modify or pay grant any cash or non-cash dividend or other distribution on or waiver with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) Assigned Contract, except for NAPS Dispositions (as defined i) amendments, modifications or waivers that (A) do not extend the term of any Assigned Contract beyond the Closing Date, (B) are not material, or (C) are needed in order to operate the Project Financing Agreement)Business in accordance with Prudent Engineering and Operating Practices;
(rxviii) enter into declare or pay any Contract with any Related Party;
(s) delay, defer, reduce dividends or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget other distributions of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and cash or other Governmental AuthoritiesAssets of Seller; or
(txix) agree or commit to do any of the foregoing. .
(xx) Notwithstanding the foregoing, Seller may permit shall have the Acquired Companies right to take commercially reasonable actions with respect conduct, prosecute, compromise or settle any and all hearings, appeals, rate cases or other proceedings. Seller shall provide Buyer the opportunity to emergency situations so long as Seller shall, upon receipt of notice of review and advise on any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of businessmaterial matters under this subsection (x)(x).
Appears in 1 contract
Certain Restrictions. Except as required or permitted hereby, or as otherwise set forth in Schedule 6.3, during the Interim Period, Seller will cause the Acquired Companies Company and the Projects Subsidiaries to operate in the ordinary course of business and consistent with past practice. Without limiting the foregoing, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not torefrain from:
(a) permit amending their certificates of incorporation or allow by-laws or taking any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets or Interests, except action with respect to the Interests as described in Section 3.4any such amendment or any recapitalization, reorganization, liquidation or dissolution of any such corporation;
(b) grant any waiver authorizing, issuing, selling or otherwise disposing of any term under, exercise shares of capital stock of or any option underOption with respect to the Company or any Subsidiary, or give modifying or amending any consent right of any holder of outstanding shares of capital stock of or Option with respect to, to the Company or any Material ContractSubsidiary;
(c) selldeclaring, transfersetting aside or paying any dividend or other distribution in respect of the capital stock of the Company or any Subsidiary not wholly owned by the Company, convey or directly or indirectly redeeming, purchasing or otherwise dispose acquiring any capital stock of or any material Purchased Assets outside Option with respect to the ordinary course of business as of Company or any Subsidiary not wholly owned by the Effective DateCompany;
(d) other than accounts payable incurred in the ordinary course of business acquiring or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance disposing of, or indicating its consent to, approval of, or acquiescence inincurring any Lien (other than a Permitted Lien) on, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of any PersonAssets and Properties, except for short-term investments made in the ordinary course of business;
(j) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of businessbusiness consistent with past practice;
(i) entering into, amending, modifying, terminating (partially or completely), granting any waiver under or giving any consent with respect to (A) any Contract that would, if in existence on the date of this Agreement, be required to be disclosed in the Disclosure Schedule pursuant to Section 2.19(a) or (B) any material License or (ii) granting any Material irrevocable powers of attorney;
(f) violating, breaching or defaulting under in any material respect, or taking or failing to take any action that (with or without notice or lapse of time or both) would constitute a material violation or breach of, or default under, any term or provision of any License held or used by the Company or any Subsidiary or any Contract to which the Company or any Subsidiary is a party or by which any of their respective Assets and Properties is bound;
(including i) incurring Indebtedness in an aggregate principal amount exceeding $100,000 (net of any Project Financing Documentamounts of Indebtedness discharged during such period), or (iiiii) voluntarily purchasing, canceling, prepaying or otherwise providing for a complete or partial discharge in advance of a scheduled payment date with respect to, or waiving any Contract involving total consideration throughout its term right of the Company or any Subsidiary under, any Indebtedness of or owing to the Company or any Subsidiary;
(h) engaging with any Person in excess of any merger or other business combination;
(i) making capital expenditures or commitments for additions to property, plant or equipment constituting capital assets in an aggregate amount exceeding $1,000,000 100,000;
(except, j) making any change in the case lines of the foregoing clauses (ii) and (iii), Contracts entered into business in the ordinary course of business, consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations they participate or liabilities following the Closing)are engaged;
(k) waive any claims having a value in excess of $1,000,000, individually writing off or in the aggregate;
(l) make any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to writing down any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice their Assets and directives from ERCOT and other Governmental Authorities; or
(t) agree or commit to do any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken Properties outside the ordinary course of businessbusiness consistent with past practice; or
(l) entering into any Contract to do or engage in any of the foregoing.
Appears in 1 contract
Certain Restrictions. Except as required or permitted hereby, or as otherwise set forth in Schedule 6.3, during the Interim Period, Seller Love will cause the Acquired Companies Company and the Projects Subsidiaries to operate in the ordinary course of business and consistent with past practice. Without limiting the foregoing, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not torefrain from:
(a) permit amending their certificates or allow articles of incorporation or by- laws (or other comparable corporate charter documents) or taking any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets or Interests, except action with respect to the Interests as described in Section 3.4any such amendment or any recapitalization, reorganization, liquidation or dissolution of any such corporation;
(b) grant any waiver authorizing, issuing, selling or otherwise disposing of any term under, exercise shares of capital stock of or any option underOption with respect to the Company or any Subsidiary, or give modifying or amending any consent right of any holder of outstanding shares of capital stock of or Option with respect toto the Company or any Subsidiary, any Material Contractother than the issuance of options under the Company's option plan;
(c) selldeclaring, transfersetting aside or paying any dividend or other distribution in respect of the capital stock of the Company or any Subsidiary not wholly owned by the Company, convey or directly or indirectly redeeming, purchasing or otherwise dispose acquiring any capital stock of or any material Purchased Assets outside Option with respect to the ordinary course of business as of Company or any Subsidiary not wholly owned by the Effective DateCompany;
(d) other than accounts payable incurred in the ordinary course of business acquiring or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance disposing of, or indicating its consent to, approval of, or acquiescence inincurring any Lien (other than a Permitted Lien) on, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of any PersonAssets and Properties, except for short-term investments made in the ordinary course of business;
(j) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of business, business consistent with past practice;
(iii) any Material Contract (including any Project Financing Document), or (iii) any Contract involving total consideration throughout its term in excess of $1,000,000 (except, in the case of the foregoing clauses (ii) and (iii), Contracts entered into except in the ordinary course of business, consistent with past practice, which will entering into, amending, modifying, terminating (partially or completely), granting any waiver under or giving any consent with respect to (A) any Contract that would, if in existence on the date of this Agreement, be fully performed prior required to Closing and be disclosed in the Disclosure Schedule pursuant to SECTION 2.19(a) or (B) any material License or (ii) granting any irrevocable powers of attorney;
(f) violating, breaching or defaulting under in any material respect, or taking or failing to take any action that (with or without notice or lapse of time or both) would constitute a material violation or breach of, or default under, any term or provision of any material License held or used by the Company or any Subsidiary or any material Contract to which the Acquired Companies will have no further obligations Company or liabilities following any Subsidiary is a party or by which any of their respective Assets and Properties is bound;
(i) incurring Indebtedness in an aggregate principal amount exceeding $100,000 (net of any amounts of Indebtedness discharged during such period), except as reasonably necessary for the Closing)ordinary operation of the Company's or its Subsidiaries' business in a manner, and in amounts, consistent with historical practice, or (ii) voluntarily purchasing, canceling, prepaying or otherwise providing for a complete or partial discharge in advance of a scheduled payment date with respect to, or waiving any right of the Company or any Subsidiary under, any Indebtedness of or owing to the Company or any Subsidiary;
(h) engaging with any Person in any merger or other business combination;
(i) making capital expenditures or commitments for additions to property, plant or equipment constituting capital assets in an aggregate amount exceeding $50,000, without Purchaser's consent which shall not be unreasonably withheld;
(j) making any change in the lines of business in which they participate or are engaged;
(k) waive any claims having a value in excess of $1,000,000, individually writing off or in the aggregate;
(l) make any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to writing down any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice their Assets and directives from ERCOT and other Governmental Authorities; or
(t) agree or commit to do any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken Properties outside the ordinary course of businessbusiness consistent with past practice; or
(l) entering into any Contract to do or engage in any of the foregoing.
Appears in 1 contract
Sources: Investment Agreement (PDT Inc /De/)
Certain Restrictions. Except as required Without the prior written consent of the representatives of the Purchasers who are members of the Company's Board of Directors, Vincent Cebula and Matthew Barrett (or permitted herebyany of their successors or rep▇▇▇▇▇▇▇▇▇), or as otherwise set forth in Schedule 6.3▇▇ enga▇▇ ▇▇ ▇▇▇ ▇▇ ▇▇e following, during the Interim PeriodCompany will, Seller and will cause the Acquired Companies and the Projects to operate in the ordinary course of business and consistent with past practice. Without limiting the foregoingSubsidiaries to, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not torefrain from:
(a) permit amending their certificates or allow articles of incorporation or by-laws (or other comparable corporate charter documents) except as necessary to consummate the transactions contemplated hereby, the Rights Offering (defined below) and the Reverse Split (defined below) or taking any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets or Interests, except action with respect to the Interests as described in Section 3.4any such amendment or any recapitalization, reorganization, liquidation or dissolution of any such corporation;
(b) grant any waiver except as contemplated hereby or as necessary to implement the Long Term Incentive Plan, the issuance of shares of Restricted Stock pursuant to the 1997 Stock Incentive Plan and the 1997 Non-Employee Director Stock Option Plan, authorizing, issuing, selling or otherwise disposing of any term under, exercise shares of capital stock of or any option underOption with respect to the Company or any Subsidiary, or give modifying or amending any consent right of any holder of outstanding shares of capital stock of or Option with respect to, to the Company or any Material ContractSubsidiary;
(c) selldeclaring, transfersetting aside or paying any dividend or other distribution in respect of the capital stock of the Company or any Subsidiary not wholly owned by the Company, convey or directly or indirectly redeeming, purchasing or otherwise dispose acquiring any capital stock of or any material Purchased Assets outside Option with respect to the ordinary course of business as of Company or any Subsidiary not wholly owned by the Effective DateCompany;
(d) other than accounts payable incurred in the ordinary course of business acquiring or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance disposing of, or indicating its consent to, approval of, or acquiescence inincurring any Lien (other than a Permitted Lien) on, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of any PersonAssets and Properties, except for short-term investments made in the ordinary course of business;
(j) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of businessbusiness consistent with past practice;
(i) entering into, amending, modifying, terminating (partially or completely), granting any waiver under or giving any consent with respect to (A) any material Contract or (B) any material License or (ii) granting any Material Contract irrevocable powers of attorney;
(including f) violating, breaching or defaulting under in any Project Financing Document)material respect, or taking or failing to take any action that (iiiwith or without notice or lapse of time or both) would constitute a material violation or breach of, or default under, any term or provision of any License held or used by the Company or any Subsidiary or any Contract involving total consideration throughout its term in excess to which the Company or any Subsidiary is a party or by which any of $1,000,000 their respective Assets and Properties is bound;
(excepti) except as contemplated hereby, in the case of the foregoing clauses incurring Indebtedness (ii) and (iii), Contracts entered into other than borrowings in the ordinary course under the Revolving Loan Agreement with Heller as in effect on the date hereof) in an aggregate principal amo▇▇▇ ▇▇ceeding $100,000, or (ii) voluntarily purchasing, canceling, prepaying or otherwise providing for a complete or partial discharge in advance of businessa scheduled payment date with respect to, consistent or waiving any right of the Company or any Subsidiary under, any Indebtedness of or owing to the Company or any Subsidiary;
(h) engaging with past practiceany Person in any merger or other business combination;
(i) making capital expenditures or commitments for additions to property, plant or equipment constituting capital assets in an aggregate amount exceeding $100,000;
(j) making any change in the lines of business in which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations they participate or liabilities following the Closing)are engaged;
(k) waive any claims having a value in excess of $1,000,000, individually writing off or in the aggregate;
(l) make any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to writing down any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice their Assets and directives from ERCOT and other Governmental Authorities; or
(t) agree or commit to do any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken Properties outside the ordinary course of businessbusiness consistent with past practice or generally accepted accounting principles ("GAAP"); or
(l) entering into any Contract to do or engage in any of the foregoing.
Appears in 1 contract
Certain Restrictions. Except as required During the period from the date of this Agreement through the Closing Date, the Controlling Shareholders will cause Descap to refrain from taking any of the following actions without the prior consent of Buyer:
(i) amending its certificate of incorporation or permitted herebyby-laws or taking any action with respect to any such amendment or any recapitalization, reorganization, liquidation or dissolution of Descap;
(ii) authorizing, issuing, selling or otherwise disposing of any shares of capital stock of or any Option with respect to Descap, or as otherwise set forth in Schedule 6.3modifying or amending any right of any holder of outstanding shares of capital stock of or Option with respect to Descap;
(iii) acquiring or disposing of, during the Interim Periodor incurring any Lien (other than a Permitted Lien) on, Seller will cause the Acquired Companies any Assets and the Projects to operate Properties of Descap, other than in the ordinary course of business and consistent with past practice. Without limiting the foregoing, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not to:
(a) permit or allow any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets or Interests, except with respect to the Interests as described in Section 3.4;
(bA) grant entering into, amending, modifying, terminating (partially or completely), granting any waiver of any term under, exercise any option under, under or give giving any consent with respect toto (1) any Contract that would, if in existence on the date of this Agreement, be required to be disclosed in the Disclosure Schedule pursuant to Section 2.10 or (2) any Material Contractmaterial License or (B) granting any irrevocable powers of attorney;
(cv) sellviolating, transferbreaching or defaulting under, convey in any material respect, or otherwise dispose taking or failing to take any action that (with or without notice or lapse of time or both) would constitute a material violation or breach of, or default under, any term or provision of any material Purchased License held or used by Descap or any Contract to which Descap is a party or by which any of its Assets outside the ordinary course of business as of the Effective Dateand Properties is bound;
(dvi) other than accounts payable overnight inventory financing incurred in the ordinary course of business or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent consistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companiespractice, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to itincurring any Indebtedness (net of any amounts of Indebtedness discharged during such period), or (B) to adjudicate it as bankrupt voluntarily purchasing, canceling, prepaying or insolventotherwise providing for a complete or partial discharge in advance of a scheduled payment date with respect to, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment waiving any right of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence inDescap under, any Indebtedness of the acts set forth in this Section 6.3(h)or owing to Descap which exceeds $10,000 on an individual basis or $100,000 on an aggregate basis;
(ivii) purchase engaging with any securities Person in any merger or other business combination;
(viii) making capital expenditures or commitments for additions to property, plant or equipment constituting capital assets in an aggregate amount exceeding $100,000;
(ix) making any change in the lines of business in which it participates or is engaged;
(x) making any Personrepresentation or promise, oral or written, to any officer, employee or consultant of Descap concerning any Company Plan, except for short-term investments made in statements as to the ordinary course rights or accrued benefits of businessany officer, employee or consultant under the terms of any Company Plan;
(jxi) enter into, terminate or amend (i) making any Material Permit other than increase in the ordinary course of businesssalary, (ii) wages or other compensation or any Material Contract (including any Project Financing Document), or (iii) any Contract involving total consideration throughout its term in excess of $1,000,000 (except, material increase in the case fringe benefit of the foregoing clauses (ii) and (iii)any officer, Contracts entered into in the ordinary course employee or consultant of business, consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing)Descap;
(kxii) waive adopting, entering into or becoming bound by any claims having a value in excess of $1,000,000Company Plan, individually employment-related Contract or in the aggregate;
collective bargaining agreement, or amending, modifying or terminating (lpartially or completely) make any material election with respect to Taxes;
(m) amend Company Plan, employment-related Contract or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employeescollective bargaining agreement, except (i) to the extent required by applicable Law and, in the event compliance with legal requirements presents options, only to the extent that the option which Descap reasonably believes to be the least costly is chosen;
(xiii) establishing or by a Governmental Authoritymodifying any (i) targets, goals, pools or similar provisions in respect of any fiscal year under any Company Plan, employment-related Contract or other employee compensation arrangement or (ii) for normal merit and cost salary ranges, increase guidelines or similar provisions in respect of living increases consistent with past practiceany Company Plan, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or nonemployment-cash dividend related Contract or other distribution on or with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authoritiesemployee compensation arrangement; or
(txiv) agree or commit entering into any Contract to do or engage in any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of business.
Appears in 1 contract
Sources: Stock Purchase Agreement (First Albany Companies Inc)
Certain Restrictions. Except as required or permitted herebyFrom the date hereof until the Closing, or as otherwise Sellers shall cause each Acquired Company (including by directing any of the Asset Managers acting on behalf of each Acquired Company) to, and the Company shall, refrain from taking any of the following actions, except (a) with respect to those matters set forth in Schedule 6.3Section 6.04 of the Seller Disclosure Schedule, during the Interim Period, Seller will cause the Acquired Companies and the Projects to operate in the ordinary course of business and consistent with past practice. Without limiting the foregoing, except (b) as otherwise set forth in Schedule 6.3, required or expressly permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyerthis Agreement, (c) with Purchaser’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Itemsdelayed), (iid) as required by Law or the termination or assignment of Excluded Contracts, (iii) the taking terms of any action otherwise listed below to the extent reasonably Permit or (e) as expressly contemplated by or required to accomplish be taken under any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not toCompany Contract:
(a) permit amending the Company’s certificate of formation or allow the Company Organizational Documents or taking any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets or Interests, except action with respect to the Interests as described in Section 3.4any recapitalization, reorganization, liquidation, dissolution or winding up of any Acquired Company;
(b) grant any waiver authorizing, issuing, selling or otherwise disposing of any term under, exercise any option undermembership or partnership interests of, or give any consent Option with respect to, any Material ContractAcquired Company, or modifying or amending any right of any holder of outstanding membership or partnership interests of, or Option with respect to, any Acquired Company;
(c) sell, transfer, convey acquiring any assets or otherwise dispose properties or disposing of any material Purchased Assets outside assets or properties of any Acquired Company, except for (i) acquisitions of spare parts, assets or properties valued at less than $1,000,000 individually or $3,000,000 in the aggregate and (ii) (x) the purchase or sale of natural gas, power, transmission or ancillary services or (y) chemicals and other supplies relating to the operation and maintenance of the Projects, in the case of each of clauses (x) and (y) in the ordinary course of business as of the Effective Datebusiness;
(d) incurring any material Liens or permitting any material Liens to be imposed on any assets and properties of any Acquired Company (other than accounts payable incurred Permitted Liens, and in the case of the Interests, only (w) Liens imposed under the Company Organizational Documents, (x) restrictions on transfer that may be imposed by applicable federal or state securities Laws, (y) encumbrances that arise out of any actions taken by Purchaser or its Affiliates, or taken on Purchaser’s behalf by Purchaser’s Representatives or Lenders or by any other Person at the request of Purchaser or its Affiliates, and (z) such other Liens as will be discharged in full by Sellers prior to or at the Closing);
(e) (i) entering into, amending, modifying or terminating (partially or completely and other than pursuant to the expiration of the term thereof) in any material respect any Company Contract (or any Contract that, if in existence on the date hereof would have been required to be disclosed on Section 4.14(a) of the Seller Disclosure Schedule), other than, in each case, (A) the entering into, amendment, modification or termination (whether partial or complete) of any Hedging Arrangements in the ordinary course of business of any Acquired Company and in compliance with the Risk Policies, subject to the limitations set forth in Section 6.04(r) or otherwise (B) the Credit Agreement Amendments; or (ii) failing to renew the Asset Management Agreements or the Contracts set forth on Section 6.13 of the Seller Disclosure Schedule, other than in accordance with Section 6.13;
(f) except (i) as may be required under Company Contracts, (ii) for Indebtedness incurred under the Credit Agreement (including for the avoidance of doubt, additional draws under the revolver), or (iii) intercompany debt or pursuant to the Material Contracts advances made by Sellers or short term, unsecured borrowings their Affiliates to any Acquired Company that will be repaid at or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume voluntarily incurring Indebtedness in an aggregate principal amount exceeding $2,000,000 (net of any amounts of any Indebtedness discharged during such period);
(g) failing to maintain any Acquired Company’s limited liability company or otherwise become liable for indebtedness for borrowed money limited partnership existence or issue any debt securities consolidating or assume or guarantee the obligations of merging with any other Person;
(eh) making capital expenditures or commitments for additions to property, plant or equipment constituting capital assets in an aggregate amount exceeding $1,000,000, excluding (i) any major maintenance costs that are capitalized under any Acquired Company’s accounting policy consistent with past practices and (ii) expenditures under the LTPAs;
(i) canceling, compromising, settling, assigning or transferring any dispute or claim that would reasonably be expected to result in a non-current liability exceeding $250,000 becoming due from any Acquired Company after the Closing or restrictions or limitations that materially and adversely affect any Acquired Company’s ability to conduct business after the Closing;
(j) failing to discharge any material Liability or make any material payment as it comes due except in connection with a good faith dispute;
(k) accelerating or decelerating the making of any payment or the receipt of any accounts receivable, Indebtedness or Liability with respect to any Company Contract;
(l) except as may be required to meet the requirements of applicable Laws Law or GAAP, change changing any accounting method or practice in a manner that is inconsistent with past practice practices in a way that would reasonably be expected to have a material materially and adverse impact on adversely affect the business of any Acquired Companies, taken as a wholeCompany;
(fm) fail to maintain its existence or consolidate or merge with making any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to itnew, or (B) to adjudicate it as bankrupt or insolventchanging any existing, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of any Person, except for short-term investments made in the ordinary course of business;
(j) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of business, (ii) any Material Contract (including any Project Financing Document), or (iii) any Contract involving total consideration throughout its term in excess of $1,000,000 (except, in the case of the foregoing clauses (ii) and (iii), Contracts entered into in the ordinary course of business, consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing);
(k) waive any claims having a value in excess of $1,000,000, individually or in the aggregate;
(l) make any material election with respect to Taxes;
, changing a Tax accounting period, filing any amended Tax Return, entering into any closing agreement with respect to Taxes, settling any Tax claim or assessment, surrendering any right to claim a refund of Taxes, consenting to any extension or waiver of the limitation period applicable to any Tax claim or assessment, or failing to pay any material Taxes as such Taxes become due and payable (m) amend or modify its Organizational Documentsunless such amounts are being contested in good faith);
(n) commence or settle failing to maintain insurance coverage substantially equivalent to the insurance coverage currently maintained with respect to any ClaimAcquired Company and its assets and properties;
(o) enter into amending any partnershipMaterial Permit, joint ventureor agreeing to a stipulation or settlement with a Governmental or Regulatory Authority relating to any Material Permit, strategic alliance other than routine renewals that do not impose additional material limitations on the business or similar contract or arrangementoperations of any Acquired Company;
(p) increase participating in any ISO New England or New York ISO capacity auction except in the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost ordinary course of living increases business consistent with past practice, or practice (iii) changes in salary to including compliance with the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective DateRisk Policies);
(q) declare, set aside, make amending or pay failing to comply with any cash or non-cash dividend or other distribution on or with respect to Risk Policy in any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement)material respect;
(r) enter entering into any Contract Hedging Arrangement or any power or gas transaction, or any financial transaction that is (i) not in compliance with any Related PartyRisk Policy made available to Purchaser prior to the date hereof or that requires the approval of, or consent by the Board or (ii) not in compliance with the derivatives plan set forth on Section 6.04(r)of the Seller Disclosure Schedule;
(s) delayentering into, defer, reduce amending or otherwise alter in modifying any material respect any capital expenditures Support Obligation in a manner not consistent with that would result in the capital budget aggregate outstanding amount of Support Obligations maintained by or on behalf of the Acquired Companies provided as of the Closing being increased by more than $5,000,000 as compared to Buyer the aggregate outstanding amount of Support Obligations maintained by or on behalf of the Acquired Companies as of the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authoritiesdate of this Agreement reflected on Section 4.24 of the Seller Disclosure Schedule; or
(t) agree agreeing or commit committing to do or engage in any of the foregoing. Notwithstanding the foregoinganything else contained in this Section 6.04, Seller (A) Sellers and any Acquired Company may permit the Acquired Companies to take commercially reasonable any actions consistent with Good Industry Practice with respect to emergency situations or to comply with the terms of any Company Contract so long as Seller Representative shall, upon receipt of notice of any such actions, promptly inform Buyer Purchaser of any such actions taken outside the ordinary course of businessbusiness consistent with past practices and (B) Sellers and the Company shall have no obligation to, or to cause any Acquired Company to, enter into any Contract, including any Hedging Arrangements.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Talen Energy Supply, LLC)
Certain Restrictions. Except So long as required or permitted hereby, or as otherwise set forth in Schedule 6.3, during the Interim Period, Seller will cause Original PFDC Stockholders collectively hold at least fifty percent (50%) of the Acquired Companies Common Stock and at least fifty percent (50%) of the Projects to operate Preferred Stock owned by the PFDC Stockholders in the ordinary course aggregate on the date hereof, the Company shall not, and shall not permit any of business and consistent with past practice. Without limiting its Subsidiaries (as applicable) to, without the foregoing, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as consent of the Effective Date or amended as permitted hereby or as consented to by Buyer, PFDC Stockholders (which consent shall not may be unreasonably withheld, conditioned evidenced by written approval by the holders of a majority of the PFDC Shares) or delayed (except that this Section 6.3 shall not restrict written approval by the PFDC Director:
(i) the transfer of Excluded Itemsenter into, (ii) the termination amend or assignment of Excluded Contracts, (iii) the taking of waive any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required material rights with respect to any matter set forth transaction, agreement, commitment or arrangement with any Summit Stockholder or any Affiliate of any Summit Stockholder, except for any transaction, agreement, commitment or arrangement which is not substantially less favorable to the Company as would be obtainable by the Company at the time in a comparable arm's-length transaction with a Person not affiliated with the Company, any Summit Stockholder or any Affiliate of any Summit Stockholder; provided that the provisions of this Section 6.3 10(f)(i) shall not apply to any amendment to or elsewhere in this Agreement to the extent that the requirement waiver of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not to:
(a) permit or allow any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets agreements contemplated by the Acquisition Agreement which is amended or Interestswaived pursuant to its terms or to any transactions, except agreements, commitments or arrangements (i) contemplated in the Acquisition Agreement or any of the agreements contemplated thereby, including this Agreement or (ii) with respect to the Interests as described repayment of indebtedness owed to any of the Summit Stockholders or any of their Affiliates which is issued after the date hereof; and provided further that in Section 3.4no event shall any Summit Stockholder or any Affiliate of any Summit Stockholder be entitled to receive any management fees (or its equivalent, whether in cash or Equity Securities) from the Company or any of its Subsidiaries;
(bii) grant amend the terms of the Common Stock, Preferred Stock or Subordinated Notes in any waiver manner that would treat the PFDC Stockholders in a disproportionately adverse manner, whether directly or indirectly through any related transactions, as compared to the Summit Stockholders (and with it being understood that, for the avoidance of any term underdoubt and without limitation, exercise any option underan example of "indirect" disproportionate adverse treatment would be if the Company amended the terms of the Subordinated Notes so as to reduce the interest rate thereon, or give any consent with but at the same time increased the rate of interest on different notes that were held by the Summit Stockholders but not held by the PFDC Stockholders so as to make the Summit Stockholders whole in respect to, any Material Contractof the decrease in interest rate on the Subordinated Notes to the exclusion of the PFDC Stockholders);
(ciii) sell, transfer, convey or otherwise dispose of approve any material Purchased Assets outside change in the ordinary course of business as scope of the Effective DateCompany's business in a manner such that thereafter no significant portion of the business of the Company and its Subsidiaries would be related to the development, manufacture, sale or distribution of cosmetics or sunscreen or other similar or related products;
(div) other than accounts payable incurred in approve the ordinary course sale, transfer or disposition of business or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets assets of any the Company and its Subsidiaries on a consolidated basis other Personthan in connection with a Sale of the Company;
(gv) issue declare or sell pay any equity ownership interestsdividends upon the Common Stock or Preferred Stock held by the Summit Stockholders unless dividends in the same amount per share are declared and paid on the Common Stock and/or Preferred Stock, as the case may be, held by the PFDC Stockholders;
(ivi) commence redeem or otherwise acquire any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment shares of Equity Securities held by the Summit Stockholders unless a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part pro rata number of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any shares of the acts set forth in this Section 6.3(h);
same class of stock is redeemed or acquired from the PFDC Stockholders (i) purchase any securities based on the total number of any Person, except for short-term investments made in shares held by the ordinary course of business;
(j) enter into, terminate or amend (i) any Material Permit other than in Summit Stockholders and the ordinary course of business, (ii) any Material Contract (including any Project Financing DocumentPFDC Stockholders), and with it being understood that the PFDC Stockholders shall tender shares of Preferred Stock for purchase or (iii) any Contract involving total consideration throughout its term in excess of $1,000,000 (except, in the case of the foregoing clauses (ii) redemption as and (iii), Contracts entered into in the ordinary course of business, consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing);
(k) waive any claims having a value in excess of $1,000,000, individually or in the aggregate;
(l) make any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost Section 4 of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as Article IV of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to any Company's certificate of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authoritiesincorporation; or
(tvii) agree amend the Company's certificate of incorporation or commit to do bylaws in a manner that conflicts with any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt express terms of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of businessthis Agreement.
Appears in 1 contract
Sources: Stockholders Agreement (Physicians Formula Holdings, Inc.)
Certain Restrictions. (a) Except as (i) required or permitted herebyby this Agreement, (ii) required by applicable Law or as the terms of any Permit or Material Contract, (iii) expressly consented to by Buyer in writing (which consent shall not be unreasonably withheld, conditioned or delayed) or (iv) otherwise set forth in Schedule 6.3, during the Interim Period, Seller will cause the Acquired Companies and the Projects to (A) operate in the ordinary course of business, and (B) use commercially reasonable efforts to preserve intact the Business and its relationships with customers, suppliers, vendors and others having significant business and consistent relationships with past practice. the Acquired Companies.
(b) Without limiting the foregoing, except as otherwise set forth in Schedule 6.3, required or permitted hereby or by this Agreement, required by applicable Laws Law or the terms of any Permit or any Material Contract in effect Contract, as of the Effective Date or amended as permitted hereby or as expressly consented to by BuyerBuyer in writing, which consent shall not be unreasonably withheld, conditioned or delayed delayed, or as otherwise set forth on Schedule 6.3 (except and provided that none of this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded apply to Terminated Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions Terminated Services or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), insurance policies. Seller will, during the Interim Period, cause each Acquired Company not to undertake any of the Acquired Companies following without the written consent of Buyer (which consent shall not to:be unreasonably withheld, conditioned or delayed):
(ai) permit create, grant or allow incur any Encumbrances Lien (other than a Permitted EncumbrancesLien) to be imposed on or against any of the material Purchased Assets or the Interests, except with respect to the Interests as described in Section 3.4;
(b) grant any waiver of any term under, exercise any option under, or give any consent with respect to, any Material Contract;
(cii) sell, transfer, convey or otherwise dispose of any (A) material Purchased Assets outside other than in the ordinary course of business as or (B) of the Effective Datepipe inventory relating to the “Next Gen” project of the Acquired Companies;
(diii) other than accounts payable or Indebtedness incurred in the ordinary course of business or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the ClosingContracts, incur, create, assume or otherwise become liable for indebtedness for borrowed money Indebtedness (excluding Indebtedness that is repaid at or issue any debt securities prior to Closing or assume or guarantee the obligations of any other Persontaken into account in Net Working Capital);
(eiv) other than in the ordinary course of business, enter into any Contract with respect to hedging, marketing or trading;
(v) except as may be required to meet the requirements of any applicable Laws Law or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a wholepractice;
(fvi) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(gvii) issue issue, reserve for issuance, or sell any equity ownership interestsEquity Interests in an Acquired Company or any option, warrant or right to acquire the same;
(iviii) commence any caseliquidate, proceeding dissolve, recapitalize, reorganize or other action under any existing otherwise wind up its business or future Debtor Relief Law, seeking operations;
(ix) (A) to have an order for relief entered merge or consolidate with respect to itany Person, or (B) to adjudicate it as bankrupt purchase all or insolvent, substantially all of the assets or businesses of any Person or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of or make an investment in any PersonPerson (other than an Acquired Company), except for short-term investments made in the ordinary course of business;
(jx) enter intoother than as expressly permitted by Section 6.3(b), terminate or amend materially amend, grant any material waiver with respect to any material term of, or consent to the termination or material amendment of any material term of, any Material Contract;
(ixi) other than as (x) expressly permitted by Section 6.3(b), (y) any Material Permit other Contract relating to the purchase of crude in the ordinary course of business with a term of less than three (3) months or (z) in the ordinary course of business, (ii) enter into any Contract that if in effect on the date of this Agreement would be a Material Contract (including provided that such ordinary course of business exception in clause (z) shall not apply to the entry into any Project Financing Document)Contract (A) reasonably expected to require payments by the Acquired Companies of more than $3,000,000 in any 12-month period, or (iiiB) that has a term longer than three (3) months unless such Contract is terminable by an Acquired Company on thirty (30) days’ notice or less without penalty;
(xii) except to the extent (A) undertaken in the ordinary course of business or (B) it would not have a Company Material Adverse Effect after the Closing, make any Contract involving total consideration throughout settlement of or compromise any Tax liability, change any Tax election or Tax method of accounting or make any new Tax election, surrender any right to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment, or take any other action that would have the effect of increasing the Tax liability of any Acquired Company for any period after the Closing;
(xiii) amend or modify its term Charter Documents;
(xiv) (A) increase the compensation or benefits of any of its directors, executive officers or Acquired Company Employees with annualized compensation in excess of $1,000,000 300,000 (provided that payments of bonuses and other grants and awards may be made in the ordinary course of business consistent with past practice), (B) grant to any director or Acquired Company Employee any increase in change-in-control, severance, retention or termination pay, or enter into or amend any change-in-control, severance, retention or termination agreement with any Acquired Company Employee, or (C) take any action to accelerate the time of vesting, funding or payment of any compensation or benefits under any Acquired Company Benefit Plan, except, in each case, (1) as required pursuant to applicable Law, (2) pursuant to the case terms of Acquired Company Benefit Plans or any Collective Bargaining Agreements or (3) for increases in salaries, wages and benefits of directors, executive officers or Acquired Company Employees made in the foregoing clauses ordinary course of business (ii) including in connection with general merit-based and/or cost of living increases and (iii), Contracts entered into in connection with promotions to fill the vacancies and otherwise done in the ordinary course of business, consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing);
(kxv) waive establish, adopt, amend or terminate any claims having a value Acquired Company Benefit Plan (or any plan that would be an Acquired Company Benefit Plan if in existence on the date of this Agreement) except (A) as required by Law or the terms of such plan or (B) for routine, immaterial or ministerial amendments;
(xvi) enter into any collective bargaining agreement with any labor union or labor organization or amend any Collective Bargaining Agreements except (A) as required by Law, (B) for routine, immaterial or ministerial amendments or (C) pursuant to collective bargaining in order to enter into any successor agreement to an existing Collective Bargaining Agreement;
(xvii) settle, assign, transfer or compromise any Proceeding brought against any Acquired Company, other than settlements or compromises involving solely payment of money damages not in excess of Five Hundred Thousand Dollars ($1,000,000, individually or 500,000) in the aggregate;
(l) make any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(qxviii) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or non-cash distribution, in each case, with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement)Interests;
(rxix) enter into any Contract with any Related Party;
(s) delaysell, deferassign, reduce convey or otherwise alter in transfer any material respect Real Property or any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authoritiesinterest therein; or
(txx) agree or commit to do any of the foregoing. .
(c) Notwithstanding the foregoingforegoing or any other provision in this Agreement, Seller may permit the any Acquired Companies Company to take commercially reasonable actions with respect to (i) emergency situations so long (including to mitigate or remedy the endangerment of health or safety of any Person or the environment or in connection with any forced outage) or (ii) regulatory requirements and/or other requirements of applicable Law (including preliminary curtailment or similar operating decisions with respect to the Facilities taken as a safety precaution) and Seller shall, upon receipt of notice of any such actions, as promptly as reasonably practicable inform Buyer of any such actions taken outside actions.
(d) Notwithstanding the ordinary course foregoing, Buyer shall not have the right, directly or indirectly, to control or direct the operations of businessthe Acquired Companies prior to the Closing to the extent prohibited by applicable Laws.
(e) During the Interim Period, Seller will not and will cause its Affiliates not to in any manner whatsoever, directly or indirectly, (i) offer, pledge, sell, contract to sell, make any short sale of, grant any option or contract to purchase, purchase any option or contract to sell, or otherwise dispose of, directly or indirectly, any shares of Buyer Parent Common Stock or any securities convertible into, exercisable for, or exchangeable for shares of Buyer Parent Common Stock or (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Buyer Parent Common Stock, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Buyer Parent Common Stock or such other securities, in cash or otherwise.
(f) Except as (x) required or permitted by this Agreement, (y) required by applicable Law, or (z) expressly consented to by Seller (which consent shall not be unreasonably withheld, conditioned or delayed), during the Interim Period, Buyer Parent shall not:
(i) repurchase or otherwise acquire, or offer to repurchase or otherwise acquire, any Equity Interests of Buyer Parent, except as permitted by the Buyer Parent Equity Plan or any applicable award Contract thereunder;
(ii) amend or adopt any change to any Governing Documents of Buyer Parent;
(iii) issue any Equity Interests of Buyer Parent or Equity Interests convertible into Equity Interests of Buyer Parent other than (A) under any Buyer Parent Equity Plan or any applicable award Contract thereunder, (B) issuances of Buyer Parent Common Stock or (C) as set forth on Schedule 5.11;
(iv) declare, issue, pay or make, or set a record date prior to the Closing with respect to, any non-cash dividend or distribution to holders of Buyer Parent Common Stock;
(v) adopt any plan or agreement of complete or partial liquidation, dissolution, restructuring, recapitalization, merger, consolidation or other reorganization of Buyer or Buyer Parent or otherwise effect any transaction whereby any Person or group acquires more than a majority of the outstanding equity interests of Buyer Parent or Buyer; or
(vi) agree or commit to do any of the foregoing.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Par Pacific Holdings, Inc.)
Certain Restrictions. Except as required or permitted herebyFrom the date of this Agreement until the Closing, or as otherwise each Seller (with respect to itself solely) shall and shall cause its applicable Affiliates to refrain from taking any of the following actions in respect of the Project, the Purchased Assets and the Assumed Liabilities, except (a) with respect to those matters set forth in Schedule 6.3on Section 5.03 of the Seller Disclosure Schedule, during the Interim Period, Seller will cause the Acquired Companies and the Projects to operate in the ordinary course of business and consistent with past practice. Without limiting the foregoing, except (b) as otherwise set forth in Schedule 6.3, required or permitted hereby or expressly required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyerthis Agreement, (c) with Purchaser’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed delayed), or (except that this Section 6.3 shall not restrict d) as required by Law or the terms of any Permit:
(i) failing to maintain the transfer of Excluded Items, Records in accordance with past custom and practice;
(ii) the termination incurring any material Liens or assignment of Excluded Contracts, permitting any material Liens to be imposed on any Purchased Assets and properties (other than Permitted Liens);
(iii) the taking acquiring any assets or properties or disposing of any action otherwise listed below to the extent reasonably required to accomplish any assets or properties of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8such Seller, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement either case, solely to the extent that such assets or properties constitute (or would constitute at the requirement Closing) Purchased Assets and except for (A) acquisitions of such consent would reasonably be expected spare parts, assets or properties valued at less than $50,000 individually or $250,000 in the aggregate, or (B) the purchase or sale of (1) natural gas, power, transmission or ancillary services or (2) chemicals and other supplies relating to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not to:
(a) permit or allow any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any operation and maintenance of the Purchased Assets or InterestsProjects, except with respect to in the Interests as described case of each of clauses (1) and (2) in Section 3.4;
(b) grant any waiver of any term under, exercise any option under, or give any consent with respect to, any Material Contract;
(c) sell, transfer, convey or otherwise dispose of any material Purchased Assets outside the ordinary course of business as of the Effective Datebusiness;
(div) entering into, amending, modifying or terminating (partially or completely and other than accounts payable incurred pursuant to the expiration of the term thereof) in any material respect any Seller Contract (or any Contract that, if in existence on the date of this Agreement would have been required to be disclosed on Section 3.14(a) of the Seller Disclosure Schedule), other than, in each case, the entering into, amendment, modification or termination (whether partial or complete) of any Hedging Arrangements that constitute Excluded Assets or Excluded Liabilities in the ordinary course of business or otherwise incurred pursuant of such Seller and in compliance with the Risk Policies (with respect to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other PersonNRGWG);
(ev) incurring Indebtedness, except (A) as would not constitute an Assumed Liability or (B) as is repaid or discharged by such Seller or its Affiliates at or prior to Closing;
(vi) (A) making capital expenditures or commitments for additions to property, plant or equipment constituting capital assets other than in accordance with the CapEx Budget, excluding (x) any major maintenance costs that are capitalized under such Seller’s and its Affiliates’ accounting policy consistent with past practices and (y) expenditures under the LTSAs or (B) failing to make (x) any capital expenditures in accordance with the CapEx Budget or (y) any payment required under the LTSAs;
(vii) canceling, compromising, settling, assigning or transferring any dispute or claim that would reasonably be expected to result in a non-current liability exceeding $50,000 becoming due from Purchaser after the Closing or restrictions or limitations that materially and adversely affect Purchaser’s ability to conduct the Business after the Closing;
(viii) except as may be required to meet the requirements of applicable Laws Law or GAAP, change changing any accounting method or practice in a manner that is inconsistent with past practice practices in a way that would reasonably be expected to have a material materially and adverse impact on adversely affect the Acquired Companies, taken as a wholeBusiness;
(fix) fail failing to maintain its existence or consolidate or merge insurance coverage substantially equivalent to the insurance coverage currently maintained with any other Person or acquire all or substantially all of respect to the Assets of any other PersonPurchased Assets;
(gx) issue amending any Material Permit, or sell agreeing to a stipulation or settlement with a Governmental or Regulatory Authority relating to any equity ownership interestsMaterial Permit, other than routine renewals that do not impose additional material limitations on the Business;
(ixi) commence participating in any case, proceeding PJM capacity auction except in the ordinary course of business consistent with past practice (including compliance with the Risk Policies);
(xii) entering into any Hedging Arrangement or other action under any existing power or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to itgas transaction, or any financial transaction (Bin each case except to the extent constituting an Excluded Asset or Excluded Liability);
(xiii) to adjudicate it as bankrupt entering into, amending or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment modifying any Support Obligation in a manner that would result in the aggregate outstanding amount of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment Support Obligations maintained for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any the Business as of the acts set forth in Closing being increased by more than $50,000 as compared to the aggregate outstanding amount of Support Obligations maintained for the benefit of the Business with respect to the Purchased Assets as of the date of this Agreement, which aggregate outstanding amount is reflected on Section 6.3(h)3.14(a)(xvii) of the Seller Disclosure Schedule;
(ixiv) purchase other than as required by applicable Law, Contract or an existing Seller benefit plan, (A) increasing or accelerating the payment of the wages, salaries, compensation, pension or other benefits payable by such Seller or any securities of its Affiliates to any Business Employee, other than for changes to Seller Employee Plans sponsored or maintained by such Seller or its Affiliates and that apply to substantially all similarly situated employees of such Seller and its Affiliates who are not Business Employees; (B) entering into or amending any employment, severance, change in control, retention or similar agreement with any Business Employee; (C) terminating (other than for cause) the employment of or promoting or materially changing the job function of any PersonBusiness Employee; (D) hiring any additional Business Employees, except for short-term investments made but excluding transfers of currently employed Business Employees among the Sellers and their Affiliates as reasonably necessary to facilitate consummation of the transactions contemplated by this Agreement; or (E) other than in accordance with Section 7.04(b), entering into, amending or modifying any collective bargaining agreement covering Business Employees;
(xv) allowing the Project to engage in any material new line of business, or making any material change in the conduct of the Business;
(xvi) selling, transferring, conveying or otherwise disposing of any Purchased Assets other than dispositions of obsolete Tangible Personal Property in the ordinary course of business; provided that any such dispositions are paid in full prior to the Closing Date and reflected in the calculation of the Purchase Price;
(jxvii) enter into, terminate or amend (i) deferring any Material Permit other than in the ordinary course of business, (ii) scheduled major maintenance on any Material Contract (including any Project Financing Document), or (iii) any Contract involving total consideration throughout its term in excess of $1,000,000 (except, in the case of the foregoing clauses (ii) and (iii), Contracts entered into in the ordinary course of business, consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing)Purchased Assets;
(kxviii) waive purchasing any claims having a value in excess Equity Securities of $1,000,000, individually or in the aggregateany Person that would become Purchased Assets;
(lxix) make changing or modifying any material credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or any material failure to pay or delay payment of payables or other liabilities;
(xx) making or changing any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle , filing any Claim;
(o) enter material Tax Return that is inconsistent with the past practices of such Seller with respect to the Project and the Purchased Assets, entering into any partnership, joint venture, strategic alliance closing or similar contract agreement with respect to Taxes, surrendering any right to a refund of Taxes, consenting to any extension or arrangement;
(p) increase waiver of the compensation payable limitation period applicable to any material Tax claim or assessment, or failing to pay any material Taxes as such Taxes become payable or the benefits provided to the Transferrable Project Employeesdue and payable, except (i) in each case, to the extent required by applicable Law such action would reasonably be expected to have any adverse effect on any Purchased Asset or by a Governmental Authority, (ii) for normal merit and cost Assumed Liability of living increases consistent with past practice, Purchaser or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental AuthoritiesAffiliates; or
(txxi) agree agreeing or commit committing to do or engage in any of the foregoing. Notwithstanding the foregoinganything else contained in this Section 5.03, Seller (A) Sellers may permit the Acquired Companies to take commercially reasonable any actions consistent with Good Industry Practice with respect to emergency situations or to comply with the terms of any Seller Contract so long as the applicable Seller shall, upon receipt of notice of any such actions, promptly (and in any event no later than two (2) Business Days after such action is taken) inform Buyer Purchaser of any such actions taken outside the ordinary course of businessbusiness consistent with past practices and (B) Sellers shall have no obligation to enter into any Contract, including any Hedging Arrangements.
Appears in 1 contract
Sources: Asset Purchase Agreement (Genon Americas Generation LLC)
Certain Restrictions. Except as required or permitted hereby, or as otherwise set forth in Schedule 6.3, during the Interim Period, Seller will cause the Acquired Companies and the Projects to operate in the ordinary course of business and consistent with past practice. Without limiting the foregoing, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent Debtor shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not tonot:
(a) permit or allow at any Encumbrances time, without limiting its obligation to constitute a Single Purpose Entity, incur any Indebtedness (other than Permitted Encumbrances) the Excess Working Capital Advances, Discretionary Funding Advances and Indebtedness evidenced by the Purchase Money Notes and pursuant to be imposed on or against any of the Purchased Assets or Interests, except with respect to the Interests as described in Section 3.4this Agreement);
(b) grant dissolve or liquidate at any waiver of any term under, exercise any option under, or give any consent with respect to, any Material Contract;
(c) sell, transfer, convey or otherwise dispose of any material Purchased Assets outside the ordinary course of business as of the Effective Date;
(d) other than accounts payable incurred in the ordinary course of business or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged time prior to such time as Debtor makes the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that Final Distribution and this Agreement is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership intereststerminated;
(i) commence file a voluntary petition for bankruptcy, (ii) file a petition or answer seeking any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustmentcomposition, winding-upreadjustment, liquidation, dissolutiondissolution or similar relief under any Law, composition (iii) make an assignment for the benefit of creditors, (iv) seek, consent or other relief with respect to it or its debts, or (D) acquiesce in the appointment of a receiver, trustee, custodian, conservator receiver or other similar official for it liquidator or for of all or any substantial part of its assetsproperties, (v) file an answer or other pleading admitting or failing to contest the material allegations of (iiA) make a general assignment for the benefit of its creditors, or take petition filed against it in any action proceeding described in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this Section 6.3(h);
clause (i) purchase any securities of any Person, except for short-term investments made in the ordinary course of business;
through (j) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of business, (ii) any Material Contract (including any Project Financing Documentiv), or (iiiB) any Contract involving total consideration throughout its term order adjudging it a bankrupt or insolvent or for relief against it in excess of $1,000,000 (except, in the case of the foregoing clauses (ii) and (iii), Contracts entered into in the ordinary course of business, consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations any bankruptcy or liabilities following the Closing);
(k) waive any claims having a value in excess of $1,000,000, individually or in the aggregate;
(l) make any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practiceinsolvency proceeding, or (iiivi) changes in salary allow itself to become unable to pay its obligations as they become due or allow the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to any sum of its ownership interests (other debts to be greater than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delayall of its property, defer, reduce or otherwise alter in any material respect any capital expenditures in at a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authoritiesfair valuation; or
(td) agree place or commit permit (voluntarily or involuntarily) any Lien to do be placed on any of the foregoing. Notwithstanding Collateral (other than the foregoingsecurity interest granted to Collateral Agent hereunder and ▇▇▇▇▇ expressly permitted pursuant to the Ancillary Documents), Seller may permit the Acquired Companies and shall not take any action to take commercially reasonable actions interfere with Collateral Agent’s rights as a secured party with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of businessCollateral.
Appears in 1 contract
Certain Restrictions. Except as required Each of Seller and Parent will refrain from:
(a) acquiring or permitted herebydisposing of any Assets and Properties used or held for use in the conduct of the Business, or as otherwise set forth in Schedule 6.3, during the Interim Period, Seller will cause the Acquired Companies and the Projects to operate other than Inventory in the ordinary course of business and consistent with past practice. Without limiting practice and other acquisitions or dispositions not exceeding in either case $50,000 in the foregoingaggregate, except as otherwise set forth or creating or incurring any Lien, other than a Permitted Lien, on any Assets and Properties used or held for use in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as the conduct of the Effective Date Business and Seller's mix of inventory prior to Closing shall remain consistent with Seller's historical pattern and practice; PROVIDED, HOWEVER, that Seller may close the Stores located in Arlington, Texas (Seller's Store Number 4), Augusta, Georgia (Seller's Store Number 44), and Riverside, California (Seller's Store Number 53) (the "Three Closing Stores"), liquidate the inventory and equipment at the Three Closing Stores, and, transfer prior to Closing any inventory or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any equipment of the Permitted Transactions Three Closing Stores to Seller's distribution center.
(b) entering into, amending, modifying, terminating (partially or (iv) the termination of the services contemplated by Section 6.8completely), and no granting any waiver under or giving any consent of Buyer will be required with respect to any matter set forth in this Section 6.3 material Business Contract or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not to:
(a) permit or allow any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets or Interests, except with respect to the Interests as described in Section 3.4;
(b) grant any waiver of any term under, exercise any option under, or give any consent with respect to, any Material Contractmaterial Business License;
(c) sellviolating, transferbreaching or defaulting under in any material respect, convey or otherwise dispose taking or failing to take any action that (with or without notice or lapse of time or both) would constitute a material violation or breach of, or default under, any term or provision of any material Purchased Assets outside the ordinary course of business as of the Effective DateBusiness Contract or any Business License;
(d) other than accounts payable incurred in the ordinary course of business canceling or otherwise incurred pursuant to the Material Contracts providing for a complete or short term, unsecured borrowings or intercompany loans or guarantees that are paid partial discharge in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations advance of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered scheduled payment date with respect to itto, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment waiving any right of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence inSeller under, any material Liability of or owing to Seller in connection with the acts set forth in this Section 6.3(h);
(i) purchase any securities of any PersonBusiness, except for short-term investments made in the ordinary course of business;
(j) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of business, (ii) any Material Contract (including any Project Financing Document), or (iii) any Contract involving total consideration throughout its term in excess of $1,000,000 (except, in the case of the foregoing clauses (ii) and (iii), Contracts entered into in the ordinary course of business, business consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing);
(ke) waive engaging with any claims having Person in any Business Combination, unless such Person agrees, to the extent applicable, in a value written instrument in excess form and substance reasonably satisfactory to Purchaser to adopt and comply with the terms and conditions of $1,000,000, individually or in the aggregatethis Agreement as though such Person was an original signatory hereto;
(lf) make engaging in any material election transaction with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract Business with any Related Party;
(s) delayofficer, deferdirector, reduce Affiliate or otherwise alter in Associate of Seller or any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authorities; or
(t) agree or commit to do any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice Associate of any such actionsofficer, promptly inform Buyer of any such actions taken director or Affiliate, either outside the ordinary course of businessbusiness consistent with past practice or other than on an arm's-length basis;
(g) making capital expenditures or commitments for additions to property, plant or equipment constituting capital assets on behalf of the Business in an aggregate amount exceeding $25,000; or
(h) entering into any agreement to do or engage in any of the foregoing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Family Christian Stores Inc)
Certain Restrictions. Except as required or permitted herebyotherwise agreed in writing by the Purchaser, or as otherwise set forth in Schedule 6.3the Group Companies shall, during and the Interim Period, Seller will and the Founders shall cause the Acquired Group Companies and the Projects to operate in the ordinary course of business and consistent with past practice. Without limiting the foregoing, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict refrain from:
(i) the transfer of Excluded Itemsauthorizing, (ii) the termination issuing, selling or assignment of Excluded Contracts, (iii) the taking otherwise disposing of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required capital shares with respect to any matter set forth Group Company, or effecting any share split or other change in this Section 6.3 the capitalization of any Group Company, or elsewhere in this Agreement to the extent that the requirement modifying or amending any right of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not to:
(a) permit or allow any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any holder of the Purchased Assets or Interests, except outstanding capital shares with respect to the Interests as described in Section 3.4any Group Company or (b) any holder of rights to acquire capital shares with respect to any Group Company;
(bii) grant declaring, setting aside or paying any dividend or other distribution in respect of any capital shares of any Group Company;
(iii) (a) entering into, amending, modifying, terminating (partially or completely), granting any waiver of any term under, exercise any option under, under or give giving any consent with respect to, to (1) any Material Contract;
(c) sell, transfer, convey or otherwise dispose of any material Purchased Assets outside the ordinary course of business as of the Effective Date;
(d) other than accounts payable incurred in the ordinary course of business or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, Contract or (B2) to adjudicate it as bankrupt or insolvent, any License or (Cb) reorganizationgranting any irrevocable powers of attorney, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of any Person, except for short-term investments made in the ordinary course of business;
(j) enter into, terminate or amend (i) any Material Permit each case other than in the ordinary course of businessbusiness consistent with past practice;
(iv) violating, (ii) breaching or defaulting under in any Material Contract (including any Project Financing Document)respect, or taking or failing to take any action that (iiiwith or without notice or lapse of time or both) would constitute a violation or breach of, or default under, any term or provision of any License held or used by the Group Companies or any Contract involving total consideration throughout its term in excess of $1,000,000 (except, in the case to which any of the foregoing clauses Group Companies is a party or by which any of their respective Assets and Properties is bound;
(iia) and incurring any additional Indebtedness (iii), Contracts entered into other than Indebtedness incurred in the ordinary course of business, consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing);
(k) waive any claims having a value in excess of $1,000,000, individually or in the aggregate;
(l) make any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iiib) changes voluntarily purchasing, canceling, prepaying or otherwise providing for a complete or partial discharge in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basisadvance of a scheduled payment date with respect to, or (iv) changes to waiving any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as right of any of the Effective Date;
(q) declareGroup Companies under, set aside, make any Indebtedness of or pay any cash or non-cash dividend or other distribution on or with respect owing to any of its ownership interests them (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined Indebtedness incurred in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authorities; or
(t) agree or commit to do any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of business);
(vi) making capital expenditures or commitments for additions to property, plant or equipment in an aggregate amount exceeding Ten Thousand US Dollars (US$10,000);
(vii) making any change in the lines of business in which they participate or are engaged which would result in a Business Material Adverse Effect; or
(viii) entering into any agreement to do or engage in any of the foregoing.
Appears in 1 contract
Certain Restrictions. (a) Except as required otherwise agreed to in writing by MC Global or permitted herebyMCI, EPI will, and will cause its Subsidiaries to, refrain from:
(i) amending their certificates or articles of association or bylaws (or other comparable charter documents) or taking any action with respect to any such amendment or any reorganization, liquidation or dissolution of any such corporation;
(ii) authorizing, issuing, selling or otherwise disposing of any shares of capital stock or other equity interests of or any Option with respect to EPI or any Subsidiary, or as modifying or amending any right of any holder of outstanding shares of capital stock or other equity interests of or Option with respect to EPI or any Subsidiary;
(iii) declaring, setting aside or paying any dividend or other distribution in respect of the capital stock of other equity interests of EPI or any Subsidiary not wholly owned by EPI, or directly or indirectly redeeming, purchasing or otherwise set forth in Schedule 6.3acquiring any capital stock or other equity interests of or any Option with respect to EPI or any Subsidiary not wholly owned by EPI;
(iv) acquiring or disposing of, during the Interim Periodor incurring any Lien (other than a Permitted Lien) on, Seller will cause the Acquired Companies any Assets and the Projects to operate Properties, other than in the ordinary course of business and consistent with past practice. Without limiting the foregoing, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict ;
(i) the transfer of Excluded Items, incurring Indebtedness in an aggregate principal amount exceeding (ii) the termination or assignment of Excluded Contracts, euro)15,000,000 (iii) the taking net of any action otherwise listed below to the extent reasonably required to accomplish any amounts of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of Indebtedness discharged during such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not to:
(a) permit or allow any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets or Interests, except with respect to the Interests as described in Section 3.4;
(b) grant any waiver of any term under, exercise any option under, or give any consent with respect to, any Material Contract;
(c) sell, transfer, convey or otherwise dispose of any material Purchased Assets outside the ordinary course of business as of the Effective Date;
(dperiod) other than accounts payable indebtedness incurred in the ordinary course of business or otherwise incurred pursuant to in connection with the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations settlement of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assetspayment transactions, or (ii) make voluntarily purchasing, canceling, prepaying or otherwise providing for a general assignment for the benefit complete or partial discharge in advance of its creditorsa scheduled payment date with respect to, or take waiving any action in furtherance of, right of EPI or indicating its consent to, approval of, or acquiescence inany Subsidiary under, any Indebtedness of the acts set forth or owing to EPI or any Subsidiary (in this Section 6.3(heither case other than Indebtedness of EPI or a Subsidiary owing to EPI or a wholly-owned Subsidiary);
(ivi) purchase engaging with any securities of Person in any Person, except for short-term investments made in the ordinary course of businessBusiness Combination;
(jvii) enter intomaking capital expenditures or commitments for capital expenditures in an aggregate amount exceeding(euro)15,000,000; or
(viii) entering into any agreement or resolving to do or engage in any of the foregoing.
(b) Except as otherwise agreed to in writing by EPI, terminate or amend MC Global and MCI, will, and will cause their Subsidiaries to, refrain from:
(i) taking any Material Permit other than in the ordinary course action with respect to any liquidation or dissolution of business, any such corporation;
(ii) declaring, setting aside or paying any Material Contract (including any Project Financing Document), or (iii) any Contract involving total consideration throughout its term in excess of $1,000,000 (except, in the case of the foregoing clauses (ii) and (iii), Contracts entered into in the ordinary course of business, consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing);
(k) waive any claims having a value in excess of $1,000,000, individually or in the aggregate;
(l) make any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on in respect of the capital stock of other equity interests of MC Global, MCI or any Subsidiary not wholly owned by MC Global or MCI, or directly or indirectly redeeming, purchasing or otherwise acquiring any capital stock or other equity interests of or any Option with respect to MC Global or MCI or any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce Subsidiary not wholly owned by MC Global or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental AuthoritiesMCI; or
(tiii) agree engaging with any Person in any Business Combination that is material to MC Global or commit to do any of MCI unless that Business Combination is disclosed in the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of businessRegistration Statement.
Appears in 1 contract
Certain Restrictions. Except as required or permitted hereby, or as otherwise set forth in Schedule 6.3or contemplated by this Agreement, during the Interim Period, Seller will cause the Acquired Companies and the Projects to operate in the ordinary course of business and consistent with past practice. Without limiting the foregoing, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions Ancillary Agreements or (iv) the termination Section 5.5 of the services contemplated by Section 6.8Company Disclosure Schedule, and no consent of Buyer will be required with respect subject further to any matter the additional express exceptions set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law)below, Seller will, during the Interim Period, HEI and HEA shall cause the Acquired Companies not toCompany, ChipPAC Korea and ChipPAC Shanghai to refrain from:
(a) permit amending their respective certificates or allow articles of incorporation or bylaws (or other comparable corporate charter documents) in any Encumbrances (other than Permitted Encumbrances) to be imposed on respect or against taking any of the Purchased Assets or Interests, except action with respect to the Interests as described in Section 3.4any such amendment or any recapitalization, reorganization, liquidation or dissolution of any such corporation;
(b) grant any waiver other than upon conversion or exercise of rights under the terms of securities outstanding on the date of this Agreement, authorizing, issuing, selling or otherwise disposing of any term under, exercise shares of their respective capital stock of or any option underor other right with respect thereto, or give modifying or amending any consent right of any holder of outstanding shares of their respective capital stock of or options or other rights with respect to, any Material Contractthereto;
(c) selldeclaring, transfersetting aside or paying any dividend or other distribution in respect of their respective capital stock, convey or directly or indirectly redeeming, purchasing or otherwise dispose acquiring any capital stock of or any material Purchased Assets outside option with respect thereto, other than for the ordinary course purpose of business as eliminating any minority interests not contemplated by this Agreement or upon conversion or exercise of rights under the Effective Dateterms of securities outstanding on the date of this Agreement;
(d) other than accounts payable incurred in the ordinary course of business or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities Sections 3.7 and 3.9 of any Person, except for short-term investments made the Company Disclosure Schedule and other than inventory acquired or disposed of in the ordinary course of business, acquiring or disposing of, or incurring any Encumbrance (other than a Permitted Encumbrance) on, any assets (including any IP Rights) or properties;
(je) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of business, amending, modifying, terminating (partially or completely), granting any waiver under or giving any consent with respect to any material term of any Contract or license;
(f) except as required by law or by the terms of Contracts with any Third Party entered into before the date of this Agreement, (i) voluntarily incurring any Indebtedness or (ii) purchasing, canceling, prepaying or otherwise providing for a complete or partial discharge or repayment with respect to, or waiving any Material Contract right under, any Indebtedness (including intercompany Indebtedness (x) owed to the Company, ChipPAC Korea or ChipPAC Shanghai by HEI, HEA or any Project Financing Document)of their other controlled Affiliates, or (iiiy) owed by the Company, ChipPAC Korea or ChipPAC Shanghai to HEI, HEA or any Contract involving total consideration throughout its term in excess of their respective other Affiliates); provided, that, subject to Section 2.2(j), if for any reason the anticipated amounts of Indebtedness of ChipPAC Korea or ChipPAC Shanghai to be repaid at the Closing pursuant to Section 2.2(g)(ii) and Section 2.2(g)(iii) would otherwise be less than approximately eighty-two million dollars ($1,000,000 82,000,000) and thirty- four million dollars (except$34,000,000), respectively, HEI and HEA will, in consultation with and at the case request of Merger Sub, cause ChipPAC Korea and ChipPAC Shanghai to incur additional short-term Indebtedness such that the foregoing clauses (iianticipated amounts of Indebtedness to be repaid at the Closing pursuant to Section 2.2(g)(ii) and Section 2.2(g)(iii) are approximately eighty-two million dollars (iii$82.000,000) and thirty-four million dollars ($34,000,000), Contracts entered into respectively.
(g) engaging with any person in any merger or other business combination;
(h) making research and development expenditures or capital expenditures or commitments for additions to property, plant or equipment constituting capital assets (except as set forth in the ordinary course of businessquarterly research and development budget annexed hereto as Exhibit F and the Capital Budget, consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closingrespectively);
(k) waive any claims having a value in excess of $1,000,000, individually or in the aggregate;
(l) make any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) except to the extent required by applicable Law law, making any material change in (A) any pricing, investment, accounting, financial reporting, inventory, credit, allowance or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practiceTax practice or policy, or (iiiB) changes any method of calculating any bad debt, contingency or other reserve for accounting, financial reporting or Tax purposes;
(j) other than in salary the ordinary course of business or to the extent necessary required by applicable law or as determined disclosed in Schedule 7.2, adopting, entering into or becoming bound by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basisany material Benefit Plan, employment-related Contract or collective bargaining agreement, or amending, modifying or terminating (ivpartially or completely) changes to any Plant Employee’s such Benefit Plan effective January 1Plan, 2016 that have been communicated to Transferrable Project Employees employment-related Contract or collective bargaining agreement, or reassigning or transferring (including by termination and made available to Buyer as rehiring) any employee of the Effective DateCompany, ChipPAC Korea or ChipPAC Shanghai to HEI, HEA or any of their other Affiliates;
(qk) declare, set aside, make or pay making any cash or non-cash dividend or other distribution on or with respect to any of change in its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement)fiscal year;
(rl) enter into other than in the ordinary course of business or as required by law or existing Contract, increase or otherwise modify any Contract with any Related Partyemployee's compensation, benefits or bonus;
(sm) delaytake any action which, deferor fail to take any action the omission of which, reduce or otherwise alter in any material respect any capital expenditures in could reasonably be expected to have a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental AuthoritiesMaterial Adverse Effect; or
(tn) agree or commit entering into any Contract to do or engage in any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of business.
Appears in 1 contract
Sources: Agreement and Plan of Recapitalization and Merger (Chippac LTD)
Certain Restrictions. Except as required contemplated by this Agreement or permitted herebyagreed by the Purchaser in writing, or as otherwise set forth in Schedule 6.3, during the Interim Period, Seller Sellers will cause the Acquired Companies Company and its Subsidiaries to refrain from:
(a) amending their certificates or articles of association (or other comparable corporate charter documents) or taking any action with respect to any such amendment or any recapitalization, reorganization, liquidation or dissolution except if required by the Projects law or by the constitutive documents and by-laws of the Company;
(b) authorizing, issuing, selling or otherwise disposing of any shares of capital stock of or any option, warrant or other right with respect to operate the capital stock of the Company or any of its Subsidiaries, or modifying or amending any right of any holder of outstanding shares of capital stock of or options with respect to the Company or any of its Subsidiaries except for an eventual transformation of the Shares from printed form into dematerialized (account entry) form;
(c) except for with respect to transfers to and from Sellers central cash account made in the ordinary course of business and consistent with past practice. Without limiting business, declaring, setting aside or paying any dividend or other distribution, directly or indirectly, by the foregoingCompany, except as or directly or indirectly redeeming, purchasing or otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws acquiring any capital stock of or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not to:
(a) permit or allow any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets or Interests, except option with respect to the Interests as described in Section 3.4;
(b) grant Company or any waiver of any term underits Subsidiaries not wholly owned, exercise any option underdirectly or indirectly, or give any consent with respect toby the Company, any Material Contract;
(c) sellexcept the dividend payable of HUF 220,306,564, transfer, convey or otherwise dispose which has been declared by the Company prior to the execution of any material Purchased Assets outside the ordinary course of business as of the Effective Datethis Agreement;
(d) other than accounts payable incurred acquiring or disposing of, or incurring any Encumbrance on, any assets and properties except for the sale of the facility of the Company located in the ordinary course of business or otherwise incurred pursuant to the Material Contracts or short termBalatonfűzfő, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other PersonHungary;
(e) except as may be required to meet the requirements of applicable Laws entering into, amending, modifying, terminating (partially or GAAPcompletely), change granting any accounting method waiver under or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with giving any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered consent with respect to it, any Contracts or (B) to adjudicate it as bankrupt licenses the value of that exceed USD 50,000 in the aggregate or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of have a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of any Personterm exceeding six months, except for short-term investments made revenue related licensing agreement and other Contracts entered into in the ordinary course of business;
(jf) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of business, business (i) incurring or obtaining a draw on any Indebtedness or (ii) other than as contemplated by this Agreement, purchasing, canceling, prepaying or otherwise providing for a complete or partial discharge in advance of a scheduled payment date with respect to, or waiving any Material Contract right under, any Indebtedness;
(including g) engaging with any Project Financing Document)person (other than a direct or indirect wholly-owned Subsidiary of the Company) in any merger or other business combination;
(h) making capital expenditures or commitments for capital expenditures or additions to property, plant or equipment constituting capital assets or entering into any operating lease for all such expenditures, commitments, additions and leases in excess of Euro 100,000;
(i) making any material change in (A) any pricing, investment, accounting, financial reporting, inventory, credit, allowance or except to the extent required by applicable law, Tax practice or policy, or (iiiB) any method of calculating any bad debt, contingency or other reserve for accounting, financial reporting or Tax purposes;
(j) except to the extent required by applicable law, adopting, entering into or becoming bound by any material Benefit Plan, employment-related Contract involving total consideration throughout or collective bargaining agreement, or amending, modifying or terminating (partially or completely) any such Benefit Plan, employment-related Contract or collective bargaining agreement;
(k) making any change in its term in excess fiscal year;
(l) causing or committing the damage, destruction, or loss of $1,000,000 (except, in the case whether or not covered by insurance) any property other than dispositions of the foregoing clauses (ii) and (iii), Contracts entered into property in the ordinary course of business, consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing);
(k) waive any claims having a value in excess of $1,000,000, individually or in the aggregate;
(l) make any material election with respect to Taxes;
(m) amend making any loan to, any director, officer, or modify its Organizational Documentsemployee;
(n) commence or settle granting any Claimincrease in the base compensation of any director;
(o) enter into making any partnershipother change in employment terms that will be in force on the Closing Date for any director, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practiceofficer, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authorities; or
(t) agree or commit to do any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken employee outside the ordinary course of business;
(p) initiating any lawsuit or similar grievance except in the ordinary course of business; or
(q) entering into any Contract to do or engage in any of the foregoing.
Appears in 1 contract
Sources: Stock Purchase Agreement (Albany Molecular Research Inc)
Certain Restrictions. Except (a) Notwithstanding anything to the contrary set forth herein, no Stockholder or Transferee (as required hereinafter defined in Section 2.5) shall directly or permitted herebyindirectly sell, assign, pledge, encumber, hypothecate or otherwise dispose of including any disposition by way of a statutory merger or consolidation involving a Stockholder that is not a natural person (collectively a "Transfer") any Shares at any time, unless any such Transfer shall have been effected in accordance with the terms of this Agreement.
(b) No Stockholder shall Transfer any Shares at any time if such action would constitute a violation of any federal or state securities or blue sky laws or a breach of the conditions to any exemption from registration of Shares under any such laws or a breach of any undertaking or agreement of such Stockholder entered into pursuant to such laws or in connection with obtaining an exemption thereunder. Summit agrees that any Shares to be received pursuant to the Stock Purchase Agreement shall bear appropriate legends restricting the sale or other transfer of such stock in accordance with applicable federal or state securities or blue sky laws, as otherwise set forth in Schedule 6.3, during the Interim Period, Seller will cause the Acquired Companies and the Projects to operate in the ordinary course of business and consistent with past practice. Without limiting the foregoing, except Section 4.1 hereof.
(c) Except as otherwise set forth provided in Schedule 6.3this Agreement, required no Stockholder shall grant any proxy or permitted hereby enter into or required agree to be bound by applicable Laws any voting trust with respect to any Shares nor shall any Stockholder enter into any stockholder agreements or arrangements of any Material Contract kind with any person with respect to any Shares inconsistent with the provisions of this Agreement (whether or not such agreements and arrangements are with other Stockholders or holders of Shares who are not parties to this Agreement), including agreements or arrangements with respect to the acquisition, disposition or voting (if applicable) of any Shares, nor shall any Stockholder act, for any reason, as a member of a group or in effect as concert with any other persons in connection with the acquisition, disposition or voting (if applicable) of any Shares in any manner which is inconsistent with this Agreement.
(d) None of the Effective Date or amended as permitted hereby or as consented restrictions contained in this Agreement with respect to by BuyerTransfers of Shares, which consent including without limitation the Right of First Refusal (Section 2.2) and Tag-Along Rights (Section 2.4), shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict apply to Transfers of Shares to (i) the transfer any Affiliate of Excluded Items, a Stockholder (an "Affiliate Transferee"); (ii) the termination to limited partners or assignment of Excluded Contracts, other investors in Summit; or (iii) to Northwest Power Management, the taking general partner of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions Summit or other funds affiliated with Northwest Power Management; or (iv) to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or other funds affiliated with or managed by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or (v) to members of a Stockholder's immediate family or his lineal descendants (a "Family Transferee"). Any such Affiliate Transferee or Family Transferee shall be considered a "Permitted Transferee" for purposes of this Agreement. Only in the termination event such Affiliate Transferee or Family Transferee shall become an Affiliate of the services contemplated by Section 6.8Company as a result of any permitted transfer hereunder, and no consent of Buyer will be required with respect to any matter set forth such Affiliate Transferee or Family Transferee shall agree in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not to:
(a) permit or allow any Encumbrances (other than Permitted Encumbrances) writing to be imposed on or against any bound by the terms of this Agreement. For the Purchased Assets or Interestspurposes of this Agreement, except with respect to an Affiliate shall have the Interests same meaning as described such term is defined in Section 3.4;
Rule 12b-2 under the Securities Exchange Act of 1934, as amended (b) grant any waiver of any term under, exercise any option under, or give any consent with respect to, any Material Contract;
(c) sell, transfer, convey or otherwise dispose of any material Purchased Assets outside the ordinary course of business as of the Effective Date;
(d) other than accounts payable incurred in the ordinary course of business or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person;"Exchange Act"))
(e) except as During the term of this Agreement Summit may be required not transfer the Warrant to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any person other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of any Person, except for short-term investments made in the ordinary course of business;
(j) enter into, terminate or amend than (i) any Material Permit other than in the ordinary course Affiliate of business, Summit; (ii) any Material Contract (including any Project Financing Document), to limited partners or other investors in Summit; or (iii) any Contract involving total consideration throughout its term in excess to Northwest Power Management, the general partner of $1,000,000 (except, in the case of the foregoing clauses (ii) and (iii), Contracts entered into in the ordinary course of business, consistent Summit or other funds affiliated with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing);
(k) waive any claims having a value in excess of $1,000,000, individually or in the aggregate;
(l) make any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, Northwest Power Management; or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or other distribution on funds affiliated with or with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authorities; or
(t) agree or commit to do any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of business.managed by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Appears in 1 contract
Certain Restrictions. Except as required or permitted herebyPrior to the Effective Time, or as otherwise set forth in Schedule 6.3without the prior written agreement of Parent, during the Interim PeriodCompany will, Seller and will cause the Acquired Companies and the Projects to operate in the ordinary course of business and consistent with past practice. Without limiting the foregoingits Subsidiaries to, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not torefrain from:
(a) permit amending their certificates or allow articles of incorporation or by-laws (or other comparable organizational documents) or taking any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets or Interests, except action with respect to the Interests as described in Section 3.4any such amendment or any reorganization, liquidation or dissolution of any such entity;
(b) grant any waiver authorizing, issuing, selling or otherwise disposing of any term under, exercise any option undershares of, or give any consent option, right or warrant to purchase with respect to, capital stock of the Company or any Material ContractSubsidiary, other than issuing Company Stock pursuant to the terms of any currently outstanding options or warrants to acquire Company Stock, or modifying or amending any right of any holder of outstanding shares of, or any option, right or warrant to purchase with respect to, capital stock of the Company or any Subsidiary;
(c) selldeclaring, transfersetting aside or paying any dividend or other distribution in respect of the capital stock of the Company or any Subsidiary not wholly owned by the Company, convey or directly or indirectly redeeming, purchasing or otherwise dispose of acquiring any material Purchased Assets outside the ordinary course of business as shares of, or any option, right or warrant to purchase with respect to, capital stock of the Effective DateCompany or any Subsidiary not wholly owned by the Company (other than repurchases of unvested shares of restricted stock required in connection with the termination of employment of holders thereof pursuant to the Company Option Plan as in effect on the date hereof);
(d) other than accounts payable incurred in the ordinary course of business acquiring or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance disposing of, or indicating its consent to, approval of, or acquiescence inincurring any Lien (other than a Permitted Lien) on, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of any Personassets and properties, except for short-term investments made in the ordinary course of business;
(j) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of businessbusiness consistent with past practice;
(e) (i) entering into, amending, modifying, terminating (partially or completely), granting any waiver under or giving any consent with respect to any Permit listed or required to be listed on Schedule 4.16(a) or Contract listed or required to be listed on Schedule 4.8(a), including any IP License with respect to any Intellectual Property of the Company, any Subsidiaries thereof, or any other Person, or (ii) granting any Material Contract irrevocable powers of attorney;
(including f) violating, breaching or defaulting under in any Project Financing Document)respect, or taking or failing to take any action that (iiiwith or without notice or lapse of time or both) would constitute a violation or breach of, or default under, any term or provision of any Permit listed or required to be listed on Schedule 4.16(a) or Contract involving total consideration throughout its term listed or required to be listed on Schedule 4.8(a);
(g) (i) incurring any Indebtedness in excess of $1,000,000 200,000 in the aggregate, or (exceptii) voluntarily purchasing, canceling, prepaying or otherwise providing for a complete or partial discharge in advance of a scheduled payment date with respect to, or waiving any right of the Company or any Subsidiary under, any Indebtedness of or owing to the Company or any Subsidiary (in either case other than Indebtedness of the Company or a Subsidiary owing to the Company or a wholly-owned Subsidiary);
(h) engaging with any Person in any merger, consolidation or similar transaction, sale, disposition or other transfer of five percent (5%) or more, in the case aggregate, of the foregoing clauses assets of the Company or its Subsidiaries, or any transaction which is similar in form, substance, purpose or effect to any of the foregoing;
(iii) and making capital expenditures or commitments for additions to property, plant or equipment constituting capital assets in an aggregate amount exceeding $100,000;
(iii), Contracts entered into j) making any change in the ordinary course lines of business, consistent with past practice, business in which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations they participate or liabilities following the Closing)are engaged;
(k) waive writing off or writing down any claims having a value in excess of $1,000,000, individually or in their assets and properties outside the aggregateordinary course of business consistent with past practice;
(l) make any material election with respect permitting the Company’s deficit of cash and cash equivalents, less bank Indebtedness, to Taxes;exceed -$1,200,000; or
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter entering into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authorities; or
(t) agree or commit agreement to do or engage in any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of business.
Appears in 1 contract
Certain Restrictions. Except as required or permitted hereby, or as otherwise set forth in Schedule 6.3, during the Interim Period, Seller Shareholders will cause the Acquired Companies and the Projects ▇▇▇▇▇ to operate in the ordinary course of business and consistent with past practice. Without limiting the foregoing, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not torefrain from:
(a) permit amending its certificate or allow articles of incorporation or by-laws (or other comparable corporate charter documents) or taking any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets or Interests, except action with respect to the Interests as described in Section 3.4any such amendment or any reorganization, liquidation or dissolution of any such corporation;
(b) grant any waiver authorizing, issuing, selling or otherwise disposing of any term under, exercise shares of capital stock of or any option underOption with respect to ▇▇▇▇▇, or give modifying or amending any consent right of any holder of outstanding shares of capital stock of or Option with respect toto ▇▇▇▇▇, except that ▇▇▇▇▇ shall be permitted, prior to the Closing, to transfer all of the issued and outstanding stock of Orlando Auto Sales to ▇▇▇▇▇ ▇▇▇▇▇▇▇ for no consideration and without representation or warranty of any Material Contractkind; by signing this Agreement, ▇▇▇▇▇ ▇▇▇▇▇▇▇ releases and forever discharges ▇▇▇▇▇, Bancorp, their affiliates, subsidiaries, parents, officers, directors, employees and agents, successors and assigns from any and all claims and causes of action she may ever have in connection with Orlando Auto Sales;
(c) selldeclaring, transfersetting aside or paying any dividend or other distribution in respect of the capital stock of ▇▇▇▇▇, convey or directly or indirectly redeeming, purchasing or otherwise dispose acquiring any capital stock of or any material Purchased Assets outside the ordinary course of business as of the Effective DateOption with respect to ▇▇▇▇▇;
(d) other than accounts payable incurred in the ordinary course of business acquiring or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance disposing of, or indicating its consent to, approval of, or acquiescence inincurring any Lien (other than a Permitted Lien) on, any of the acts set forth in this Section 6.3(hAssets and Properties (excluding Company Leases);
(i) purchase any securities of any Person, except for short-term investments made in the ordinary course of business;
(j) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of businessbusiness consistent with past practice;
(i) entering into, amending, modifying, terminating (iipartially or completely), granting any waiver under or giving any consent with respect to (A) any Material Contract (including any Project Financing Documentthat would, if in existence on the date of this Agreement, be required to be disclosed in the Disclosure Schedule pursuant to Section 2.19(a), or (iiiB) any Contract involving total consideration throughout its term in excess of $1,000,000 (except, in the case of the foregoing clauses material License or (ii) granting any irrevocable powers of attorney;
(f) violating, breaching or defaulting under in any material respect, or taking or failing to take any action that (with or without notice or lapse of time or both) would constitute a material violation or breach of, or default under, any term or provision of any License held or used by ▇▇▇▇▇ or any Contract to which ▇▇▇▇▇ is a party or by which any of its Assets and Properties is bound;
(iii), Contracts entered into i) incurring Indebtedness (except in the ordinary course of business) or (ii) except with respect to any Company Lease in the ordinary course of business, consistent voluntarily purchasing, canceling, prepaying or otherwise providing for a complete or partial discharge in advance of a scheduled payment date with past practicerespect to, or waiving any right of ▇▇▇▇▇ under, any Indebtedness of or owing to ▇▇▇▇▇;
(h) engaging with any Person in any Business Combination;
(i) except with respect to any Company Lease in the ordinary course of business, making capital expenditures or commitments for additions to property, plant or equipment constituting capital assets in an aggregate amount exceeding $10,000;
(j) making any change in the lines of business in which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations it participates or liabilities following the Closing)is engaged;
(k) waive except with respect to any claims having a value in excess of $1,000,000, individually or Company Lease in the aggregateordinary course of business, writing off or writing down any of their Assets and Properties outside the ordinary course of business consistent with past practice;
(l) make disposing of any material election with respect to Taxes;Company Lease; or
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter entering into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authorities; or
(t) agree or commit agreement to do or engage in any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of business.
Appears in 1 contract
Sources: Merger Agreement (Bancorp, Inc.)
Certain Restrictions. Except as required or permitted hereby, or as otherwise set forth in Schedule 6.3, during the Interim Period, Seller will cause the Acquired Companies and the Projects to operate in the ordinary course of business and consistent with past practice. Without limiting the foregoing, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not to:
(a) permit or allow No Stockholder shall, from the date of this Agreement until the Voting Agreement Termination Date, take any Encumbrances (other than Permitted Encumbrances) to be imposed on or against action that would make any of the Purchased Assets its representations or Interests, except with respect to the Interests as described warranties contained herein untrue or incorrect in Section 3.4;
(b) grant any waiver of any term under, exercise any option under, or give any consent with respect to, any Material Contract;
(c) sell, transfer, convey or otherwise dispose of any material Purchased Assets outside the ordinary course of business as of the Effective Date;
(d) other than accounts payable incurred in the ordinary course of business respect or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on prevent or materially delay the Acquired Companies, taken as a whole;performance of any of such Stockholder’s obligations hereunder.
(fb) fail Each Stockholder hereby agrees not to maintain its existence commence or consolidate or merge with any other Person or acquire voluntarily participate in, and to take all or substantially all of the Assets actions necessary to opt out of any other Person;
(g) issue class in any class action with respect to, any claim, derivative or sell otherwise, against Parent, the Company, Sub or any equity ownership interests;
of their respective successors (i) commence challenging the validity of, or seeking to enjoin or delay the operation of, any caseprovision of this Agreement or the Merger Agreement (including any claim seeking to enjoin or delay the consummation of the Merger) or (ii) alleging a breach of any fiduciary duty of any member of the Company Board or officer of the Company in connection with the Merger Agreement, proceeding this Agreement or other action the transactions contemplated thereby or hereby; provided, that the foregoing shall not limit any actions taken by the Stockholder in response to any claims commenced against the Stockholder or any of his, her or its affiliates or representatives; provided, further that this Section 7(b) shall not limit or impair the rights or obligations of any party under the Merger Agreement or be deemed to be a waiver of any existing rights of the Stockholder or future Debtor Relief Lawany of his, seeking her or its affiliates or representatives for any breach of (A) to have an order for relief entered with respect to itthis Agreement, or (B) to adjudicate it as bankrupt or insolvent, the Merger Agreement or (C) reorganizationany other Contract by and between such Stockholder or any of his, arrangementher or its affiliates or representatives, adjustmenton the one hand, winding-upand any of Parent, liquidationthe Company or their respective Subsidiaries or affiliates, dissolutionon the other hand.
(c) Each Stockholder shall permit Parent and the Company to publish and disclose in all documents and schedules filed with the SEC, composition and any press release or other relief disclosure document Parent or the Company determines to be necessary or desirable (it being understood that the names of individuals party to this Agreement will not be disclosed unless required by applicable law) in connection with the Merger and any transactions related thereto, such Stockholder’s identity and ownership of Covered Shares and the nature of such Stockholder’s commitments, arrangements and understandings under this Agreement.
(d) From the date hereof until the Termination Date, in the event that any Stockholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional Shares or other voting interests with respect to it the Company, such Shares or its debtsvoting interests shall, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any without further action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of any Personparties, except for short-term investments made in the ordinary course of business;
(j) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of business, (ii) any Material Contract (including any Project Financing Document), or (iii) any Contract involving total consideration throughout its term in excess of $1,000,000 (except, in the case of the foregoing clauses (ii) be deemed Covered Shares and (iii), Contracts entered into in the ordinary course of business, consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing);
(k) waive any claims having a value in excess of $1,000,000, individually or in the aggregate;
(l) make any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided subject to the Transferrable Project Employeesprovisions of this Agreement, except (i) the number of Shares held by such Stockholders shall be deemed amended accordingly, and such Shares or voting interests shall automatically become subject to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit terms of this Agreement. Each Stockholder shall promptly notify the Company and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authorities; or
(t) agree or commit to do any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice Parent of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of businessevent.
Appears in 1 contract
Sources: Voting Agreement (HashiCorp, Inc.)
Certain Restrictions. Except as required or permitted herebyFrom the date hereof until the Closing, or as otherwise set forth in Schedule 6.3, during the Interim Period, each Seller will cause refrain from any of the Acquired Companies and the Projects to operate following, except in the ordinary course of business and consistent with past practice. Without limiting the foregoing, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not tobusiness:
(a) permit acquiring or allow disposing of, or incurring any Encumbrances Lien (other than a Permitted EncumbrancesLien) to be imposed on or against on, any of the Purchased Assets or Interests, except with respect to the Interests as described in Section 3.4being transferred hereunder by such Seller;
(b) grant entering into, amending, modifying, terminating (partially or completely), granting any waiver of any term under, exercise any option under, under or give giving any consent with respect to, to any Material ContractBusiness Contract (other than the Collective Bargaining Agreement) or any Business License;
(c) sellincurring, transferpurchasing, convey canceling, prepaying or otherwise dispose providing for a complete or partial discharge in advance of a scheduled payment date with respect to, or waiving any right under, any Liability of or owing to such Seller, in connection with the Business in an aggregate principal amount exceeding $10,000;
(d) engaging with any Person in any Business Combination, unless such Person agrees in a written instrument to adopt and comply with each and every term and condition of this Agreement and the Operative Agreements as though such Person was an original signatory hereto or thereto;
(e) engaging in any transaction individually or in the aggregate with other such transactions material Purchased Assets to the Condition of the Seller's Business with any officer, director or Affiliate of such Seller outside the ordinary course of business as of the Effective Date;
(d) other than accounts payable incurred in the ordinary course of business or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a wholean arm's-length basis;
(f) fail to maintain its existence selling, assigning, or consolidate or merge with transferring any other Person or acquire all or substantially all of the Assets of any other PersonBusiness or the Assets;
(g) issue unless otherwise required by or sell any equity ownership interests;
(i) commence any casecontemplated in this Agreement or the Operative Agreements, proceeding making capital expenditures or other action under any existing commitments for additions to property, plant or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any equipment constituting capital assets on behalf of the acts set forth Business in this Section 6.3(h);
(i) purchase any securities of any Person, except for short-term investments made in the ordinary course of business;
(j) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of business, (ii) any Material Contract (including any Project Financing Document), or (iii) any Contract involving total consideration throughout its term in excess of an aggregate amount exceeding $1,000,000 (except, in the case of the foregoing clauses (ii) and (iii), Contracts entered into in the ordinary course of business, consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing);
(k) waive any claims having a value in excess of $1,000,000, individually or in the aggregate;
(l) make any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authorities50,000; or
(th) agree or commit entering into any Contract to do or engage in any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of business.
Appears in 1 contract
Sources: Asset Purchase Agreement (King Pharmaceuticals Inc)
Certain Restrictions. Except as required or permitted hereby, or as otherwise set forth in Schedule 6.3, during the Interim Period, Seller will cause the Acquired Companies and the Projects to operate in the ordinary course of business and consistent with past practice. Without limiting the foregoing, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict Refrain from: (i) changing or amending the transfer Charter Documents of Excluded Items, the Company; (ii) the termination merging with or assignment of Excluded Contracts, into or consolidating with any other Person; (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not to:
(a) permit or allow any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets or Interests, except with respect to the Interests as described in Section 3.4;
(b) grant any waiver of any term under, exercise any option under, or give any consent with respect to, any Material Contract;
(c) sell, transfer, convey or otherwise dispose of any material Purchased Assets outside the ordinary course of business as of the Effective Date;
(d) other than accounts payable incurred in the ordinary course of business or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire acquiring all or substantially all of the Assets stock or the assets of any other Person;
(g) issue Person or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part changing the character of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of any Person, except for short-term investments made in the ordinary course of business;
(j) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of business, (ii) any Material Contract (including any Project Financing Document), or (iii) any Contract involving total consideration throughout its term in excess of $1,000,000 (except, in the case of the foregoing clauses (ii) and (iii), Contracts entered into in the ordinary course of business, consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing);
(k) waive any claims having a value in excess of $1,000,000, individually or in the aggregate;
(l) make any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or ; (iv) changes to issuing or selling any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as shares of the Effective Date;
Company's capital stock of any class or any securities convertible into, or options, warrants to purchase or rights to subscribe to, any shares of such capital stock; (qv) declarepermitting any liens upon, set asidepledging or otherwise encumbering any shares of such capital stock or any of their respective assets or properties; (vi) declaring, make paying or pay setting aside for payment any cash or non-cash dividend or other distribution on or with respect to any of its ownership interests the stockholders of the Company in respect of their respective capital stock or otherwise; (other than distributions solely among the Acquired Companiesvii) except directly or indirectly, redeeming, retiring, purchasing or otherwise acquiring any shares of their respective capital stock or any of their respective indebtedness for NAPS Dispositions money borrowed in advance of any scheduled repayment date; (as defined in the Project Financing Agreement);
viii) making any capital expenditures, or commitments with respect thereto; (rix) enter incurring, assuming or guaranteeing any indebtedness, obligations or liabilities or entering into any Contract with transactions or making any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authorities; or
(t) agree or commit commitment to do any of the foregoing. Notwithstanding foregoing except in the foregoingOrdinary Course of Business or for purposes of consummation of the transactions contemplated by this Agreement and in any case only after consultation with Buyer; (x) canceling, Seller may permit releasing, waiving or compromising any debt, Claim or right in their respective favor; (xi) altering the Acquired Companies rate or basis of compensation of any of their respective officers, directors, employees or consultants; and (xii) taking any action or failing to take commercially reasonable actions with respect any action as a result of which any of the other changes or events listed in Section 2.6 hereof is likely to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of businessoccur.
Appears in 1 contract
Certain Restrictions. Except as required or permitted hereby, or as otherwise set forth in Schedule 6.3, during During the Interim Pre-Closing Period, Seller the Members will cause the Acquired Companies Company to refrain from (except as expressly contemplated by this Agreement and the Projects to operate in the ordinary course of business and consistent with past practice. Without limiting the foregoing, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict Transactions):
(i) the transfer amending its articles of Excluded Itemsorganization, (ii) the termination operating agreement and any other Organizational Documents or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 such amendment or elsewhere in this Agreement to any recapitalization, reorganization, liquidation or dissolution of the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not to:Company
(aii) permit authorizing, issuing, selling or allow otherwise disposing of any Encumbrances (other than Permitted Encumbrances) Membership Interests of or any option or right of any kind to be imposed on or against any of the Purchased Assets or Interests, except acquire securities with respect to the Interests as described in Section 3.4Company, or modifying or amending any right of any holder of outstanding shares of capital stock of or right to acquire securities of any kind with respect to the Company;
(biii) grant declaring, setting aside or paying any dividend or other distribution in respect of the Membership Interests of the Company or any Subsidiary not wholly owned by the Company, or directly or indirectly redeeming, purchasing or otherwise acquiring any Membership Interests of or any right to acquire securities of any kind with respect to the Company;
(iv) acquiring or disposing of, or incurring any Encumbrance (other than a Permitted Lien) on, any Company assets and properties, other than in the Ordinary Course of Business;
(v) (i) entering into, amending, modifying, terminating (partially or completely), granting any waiver of any term under, exercise any option under, under or give giving any consent with respect toto (A) any Contract that would, if in existence on the date of this Agreement, be required to be disclosed in the Schedule 5.15 or (B) any Material Contractmaterial License or (ii) granting any irrevocable powers of attorney;
(cvi) sellviolating, transferbreaching or defaulting under in any material respect, convey or otherwise dispose taking or failing to take any action that (with or without notice or lapse of time or both) would constitute a material violation or breach of, or default under, any term or provision of any material Purchased Assets outside License held or used by the ordinary course or any Contract to which the Company is a party or by which any of business as of the Effective Dateits assets and properties is bound;
(dvii) other than accounts payable incurred in the ordinary course of business or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable except for indebtedness for borrowed money or issue any debt securities or assume or guarantee the existing royalties obligations of any other Person;
(e) except as may be required the Company to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking TTC (A) to have incurring indebtedness in an order for relief entered with respect to itaggregate principal amount exceeding $50,000 (net of any amounts of indebtedness discharged during such period), or (B) to adjudicate it as bankrupt voluntarily purchasing, canceling, prepaying or insolventotherwise providing for a complete or partial discharge in advance of a scheduled payment date with respect to, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment waiving any right of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence inCompany under, any indebtedness of or owing to the acts set forth in this Section 6.3(h)Company;
(iviii) purchase engaging with any securities of Person in any Person, except for short-term investments made in the ordinary course of businessmerger or other business combination;
(jix) enter intomaking capital expenditures or commitments for additions to property, terminate plant or amend (i) any Material Permit other than equipment constituting capital assets in the ordinary course of business, (ii) any Material Contract (including any Project Financing Document), or (iii) any Contract involving total consideration throughout its term in excess of an aggregate amount exceeding $1,000,000 (except, in the case of the foregoing clauses (ii) and (iii), Contracts entered into in the ordinary course of business, consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing)25,000;
(kx) waive making any claims having a value in excess of $1,000,000, individually or change in the aggregatelines of business in which it participates or is engaged;
(lxi) make any material election with respect to Taxes;
(m) amend writing off or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to writing down any of its ownership interests (other than distributions solely among assets and properties outside the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget Ordinary Course of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental AuthoritiesBusiness; or
(txii) agree or commit entering into any Contract to do or engage in any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of business.
Appears in 1 contract
Certain Restrictions. Except During the period between the signing of this Agreement by the parties hereto and Closing, Sellers shall use their commercially reasonable efforts to ensure that, except as otherwise contemplated by this Agreement, as required or permitted herebyby the Bankruptcy Court, as required by Law, or as otherwise set forth in listed or described on Schedule 6.38.1.1(a), during (a) the Interim Period, Seller will cause the Acquired Companies and the Projects to operate Combined Operations are conducted in the ordinary course of business and thereof consistent with past practicepractices, including with respect to maintenance of insurance relating to the Combined Operations, (b) material relationships related to the Combined Operations, including those with employees and suppliers, are preserved, and (c) the condition of the Purchased Assets is materially preserved. Without limiting the generality of the foregoing, during the period between the signing of this Agreement by the parties hereto and Closing, except as otherwise set forth in listed or described on Schedule 6.3, required 8.1.1(a) or permitted hereby or required by applicable Laws or any Material Contract in effect as with the prior consent of the Effective Date or amended as permitted hereby or as consented to by BuyerBuyers, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 Sellers shall not restrict cause, and shall direct the members of KJBC’s executive committee appointed by Sellers not to cause:
(i) the transfer taking of Excluded Items, any action or the exercise of any of the powers described in Article XIII of the Partnership Agreement;
(ii) any arrangement with any contractor for such contractor to perform any of the termination acts or assignment exercise any of Excluded Contracts, the powers described in Article XIII of the Partnership Agreement;
(iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any described in Section 4.03 of the Permitted Transactions or Management Agreement;
(iv) the creation, termination or amendment of the services contemplated by Section 6.8any KJBC Material Contract, and no consent of Buyer will be required with respect to any matter KBC Material Contract or Gramercy Material Contract, including those set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Lawon Schedules 5.12.1(a), Seller will, during the Interim Period, cause the Acquired Companies not to:5.12.2(a) and 6.6.1(a);
(av) permit any acquisition or allow disposition of any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of KJBC Assets, the KBC Purchased Assets or Interests, except with respect to the Interests as described in Section 3.4;
(b) grant any waiver of any term under, exercise any option under, or give any consent with respect to, any Material Contract;
(c) sell, transfer, convey or otherwise dispose of any material Gramercy Purchased Assets outside the ordinary course of business as conduct of the Effective Gramercy Operations or the KJBC Operations (as applicable) or any acquisition or disposition that is reasonably likely to involve consideration in excess of $250,000;
(vi) any capital expenditures to be made by or on behalf of KJBC except as contemplated in the KJBC Capital Spending Plan 2004 — 2005 attached hereto as Schedule 8.1.1(b);
(vii) any capital expenditures to be made with respect to Gramercy except as contemplated in the 2004 GBU Capital Spending Plan attached hereto as Schedule 8.1.1(c);
(viii) either Seller to grant or otherwise suffer to exist any Lien on any of the Purchased Assets, other than Permitted Liens;
(ix) the creation of any agreement or arrangement with any Governmental Entity that is competent to impose or collect amounts payable in respect of any Taxes relating to the Purchased Assets arising after the Closing Date;
(dx) other than accounts payable incurred any offer to be made by or on behalf of KBC to employ any individual not currently employed by KBC for a salary or fee in the ordinary course excess of business $100,000 per annum or otherwise incurred pursuant any offer to be made by or on behalf of Kaiser to employ any individual with respect to the Material Contracts Gramercy Operations not currently employed by Kaiser for a salary or short term, unsecured borrowings or intercompany loans or guarantees that are paid fee in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations excess of any other Person$100,000 per annum;
(exi) except as may be required the termination, other than for cause, of any KBC Employee who is material to meet the requirements of applicable Laws KJBC Operations or GAAP, change any accounting method or practice in a manner that Gramercy Employee who is inconsistent with past practice in a way that would reasonably be expected material to have a material and adverse impact on the Acquired Companies, taken as a wholeGramercy Operations;
(fxii) fail to maintain its existence or consolidate or merge with any the termination, other Person or acquire than for cause, of all or substantially all of KBC Employees in any department that is material to the Assets of KJBC Operations or all or substantially all Gramercy Employees in any other Persondepartment that is material to the Gramercy Operations;
(gxiii) issue a material increase in the aggregate number of KBC Employees or sell any equity ownership interestsin the aggregate number of Gramercy Employees;
(ixiv) commence the amendment of any caseof the material terms of employment of or benefits made available to, proceeding or other action under the increase in pay and benefits of, any existing KBC Employee, Gramercy Employee or future Debtor Relief LawSeller Employee, seeking except for (A) to have an order for relief entered with respect to itin the case of KBC Represented Employees, increases in pay or benefits required under the terms of the applicable KBC Labor Agreement and KBC Plans, (B) in the case of Gramercy Employees subject to adjudicate it as bankrupt the Gramercy Labor Agreement, increases in pay or insolventbenefits required under the terms of the Gramercy Labor Agreement and Gramercy Plans, or and (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for in the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any case of the acts set forth Seller Employees, increases in this Section 6.3(h);
(i) purchase any securities of any Personpay or benefits required under employment or benefits agreements in effect on the date hereof or discretionary bonuses in amounts, except for short-term investments made and payable on dates, consistent with past practice and otherwise in the ordinary course of business;
(jxv) enter into, terminate or amend the filing of any renditions with the local property tax authorities of the State of Louisiana prior to the applicable filing date related to any such rendition;
(ixvi) the creation of any Material Permit Intercompany Obligations other than Intercompany Obligations between KJBC and KBC and Intercompany Obligations between KJBC and Alpart, consistent with past practice and otherwise in the ordinary course of business, (ii) any Material Contract (including any Project Financing Document), or (iii) any Contract involving total consideration throughout its term in excess of $1,000,000 (except, in the case of the foregoing clauses (ii) and (iii), Contracts entered into in the ordinary course of business, consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing);
(k) waive any claims having a value in excess of $1,000,000, individually or in the aggregate;
(l) make any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authorities; or
(txvii) agree either Seller or commit KJBC to enter into any agreement to do any of the foregoing. Notwithstanding the foregoingBuyers shall respond to any request by Sellers for a consent required under this Section 8.1.1 within three business days of delivery of such request, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long or such shorter period of time as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of businessSellers reasonably requested.
Appears in 1 contract
Certain Restrictions. Except as required specifically provided for in this Agreement, the Company will not directly or permitted hereby, or as otherwise set forth in Schedule 6.3, during indirectly and the Interim Period, Seller will cause the Acquired Companies Company and its Subsidiaries not to directly or indirectly,
(a) Make or grant any bonus or any increase in the Projects salary, wages or other compensation or incentive arrangements with any employee of the Company or any of its Subsidiaries or make any other change in employment terms for any such Person or adopt, enter into, amend, modify or terminate (partial or complete) any Benefit Plan, in each case other than changes made in accordance with normal compensation practice and pursuant to operate written Contracts in effect as of the date hereof;
(b) Create, incur, assume or guarantee any Indebtedness in excess of $10,000, or waive any right under any Accounts Receivable or make any payment on account of the Indebtedness of the Company or any of its Subsidiaries other than scheduled payments;
(c) Conduct the management practices of the Company or any of its Subsidiaries (including, without limitation any pricing, investment, accounting, and financial reporting, policies, maintenance of inventory control, collection of Accounts Receivable, credit practices, payment of payables, allowance or Tax practice or policy of the Company or any of its Subsidiaries or any method of calculating any bad debt, contingency or other reserve for accounting, financial reporting or Tax purposes) other than in the ordinary course consistent with past custom and practice;
(d) Fail to pay any payables or other liabilities in a timely manner and consistent with past practices or accelerate the collection of Accounts Receivable;
(e) Acquire or dispose of any assets or properties other than in the ordinary course of business and consistent with past practice. Without limiting the foregoing, except as otherwise set forth in Schedule 6.3or mortgage, required pledge or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect subject them to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies Encumbrance except for Encumbrances for current property Taxes not to:
(a) permit or allow any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets or Interests, except with respect to the Interests as described in Section 3.4;
(b) grant any waiver of any term under, exercise any option underyet due and payable, or give any consent with respect to, any Material Contract;
(c) sell, transfer, convey or otherwise dispose of cancel without fair consideration any material Purchased Assets outside the ordinary course of business as of the Effective Date;
(d) other than accounts payable incurred in the ordinary course of business debts or otherwise incurred pursuant claims owing to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a wholeheld by it;
(f) fail Make any commitments which would require capital expenditures in excess of $10,000 for additions to maintain its existence property or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Personequipment constituting capital assets;
(g) issue Make any commitments which would require capital investment in, any loan to, or sell any equity ownership interestsacquisition of the securities or material assets of any other Person or take any steps to form any Subsidiary;
(ih) commence Make any case, proceeding loans or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to itadvances to, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment guarantees for the benefit of its creditors, or take any action in furtherance of, or indicating its consent toenter into any transaction or agreement with any Affiliate, approval ofemployee, officer or acquiescence in, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of any Persondirector, except for short-term investments (x) the transactions contemplated by this Agreement or the other agreements being executed and delivered at the Closing pursuant to the terms hereof, and (y) advances and other employee arrangements consistent with past custom and practice made to any employees, officers and directors for travel and business expenses incurred in the ordinary course of business;
(A) Enter into any Contract (1) out of the ordinary course of business or (2) restricting in any respect the conduct of the Business as presently conducted, (B) make any loans (other than advances for travel and business expenses incurred in the ordinary course of business), (C) make any distributions of property, (D) directly or indirectly engage in any transaction or Contract with any Affiliate, (E) execute any guarantee, issue any debt or incur any Indebtedness, except from suppliers in the ordinary course of business or buy or sell any assets out of the ordinary course of business or (F) settle or compromise any litigation;
(j) Declare or pay any non-cash dividend or make any other non-cash distribution on any of its shares, or redeem or purchase or otherwise acquire any of its shares, or reduce its authorized capital or issued capital or agree to do any of the foregoing or otherwise change any of its capital stock or grant or enter intointo any options, terminate warrants or calls or other rights to purchase or convert any obligation into any of its capital stock;
(k) Issue or sell any capital stock, notes, bonds or other securities, or any option, warrant or other right to acquire the same, (x) redeem for value any of the capital stock or declare, make or pay any non-cash dividends or non-cash distributions to the holders of its capital stock or otherwise, (y) amend or restate its organizational documents or (iz) merge with, enter into a consolidation with or acquire an interest of 5% or more in any Material Permit Person or acquire a substantial portion of the assets or business of any Person or any division or line of business thereof, or otherwise acquire any material assets other than in the ordinary course of businessbusiness consistent with past practice;
(l) Enter into any transaction or enter into, (ii) modify, amend or terminate any Material Contract (including including, without limitation, with respect to any Project Financing Document), or (iii) transfer of any Contract involving total consideration throughout its term in excess of $1,000,000 (except, in the case of the foregoing clauses (iiassets of the Company or any of its Subsidiaries or the placing of an Encumbrance on any of such assets) and (iii), Contracts entered into except on an arm’s-length basis in the ordinary course of business, the Business consistent with past custom and practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing);
(k) waive any claims having a value in excess of $1,000,000, individually or in the aggregate;
(l) make any material election with respect to Taxes;
(m) amend Make or modify change any material Tax election not required by law, change any method of accounting with respect to Taxes, file any amended Tax Return, settle or compromise any Tax liability, enter into any closing agreement with respect to Taxes, surrender any right to claim a refund of Taxes or take any similar action if the effect would be to increase the Tax liability of the Company or any of its Organizational DocumentsSubsidiaries after the Closing Date or decrease any Tax attribute of the Company or any of its Subsidiaries existing on the Closing Date;
(n) commence Except as may be required by any Governmental Body or settle under GAAP, make any Claimmaterial change in its methods, principles and practices or accounting;
(o) enter into Effectuate a “plant closing” or “mass layoff” (as those terms are defined in the WARN Act) affecting in whole or in party any partnershipsite of employment, joint venture, strategic alliance facility operating unit or similar contract or arrangementemployees;
(p) increase the compensation Cancel or terminate any insurance policy naming it as a beneficiary or a loss payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Datepayee without obtaining comparable substitute insurance coverage;
(q) declareIn any other manner, set asidemodify, make change or pay any cash or non-cash dividend or other distribution on or with respect to any otherwise alter the fundamental nature of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (business as defined in the Project Financing Agreement)presently conducted;
(r) enter into Waive or otherwise surrender any Contract with any Related Party;rights under the Insurance Contract(s); or
(s) delayAuthorize, defer, reduce commit or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided agree to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authorities; or
(t) agree or commit to do take any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such foregoing actions, promptly inform Buyer of any such actions taken outside the ordinary course of business.
Appears in 1 contract
Sources: Stock Purchase Agreement (Penn Treaty American Corp)
Certain Restrictions. Except as required or permitted hereby, or as otherwise set forth on Schedule 3.4 and notwithstanding anything in Schedule 6.3Section 3.3 to the contrary, during the Interim Periodprior to Closing, Seller will cause the Acquired Companies Company and its Subsidiaries to refrain from:
(a) amending their certificates or articles of incorporation or by-laws (or other comparable corporate charter documents) or taking any corporate action with respect to any such amendment or any reorganization, liquidation or dissolution of any such entity (except as provided in Section 3.17);
(b) authorizing, issuing, selling or otherwise disposing of any shares of, or any option, right or warrant to purchase with respect to, capital stock of the Projects Company or any of its Subsidiaries;
(c) except as required by Section 3.17, declaring, setting aside or paying any dividend or other distribution in respect of the capital stock of the Company or any Subsidiary not wholly owned by the Company, or directly or indirectly redeeming, purchasing or otherwise acquiring any shares of, or any option, right or warrant to operate purchase with respect to, capital stock of the Company or any Subsidiary not wholly owned by the Company;
(d) acquiring or disposing of, or incurring any Lien (other than a Permitted Lien) on, any material assets and material properties of the Company or its Subsidiaries, other than in the ordinary course of business and consistent with past practice. Without limiting the foregoing, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or on any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not to:
(a) permit or allow any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets or Interests, except with respect to the Interests as described in Section 3.4Shares;
(be) grant entering into, amending, modifying, terminating (partially or completely), granting any waiver of any term under, exercise any option under, under or give giving any consent with respect to, any Material Contract;
Permit (c) sell, transfer, convey or otherwise dispose of any material Purchased Assets outside the ordinary course of business as of the Effective Date;
(d) other than accounts payable incurred in the ordinary course of business or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of any Person, except for short-term investments made in the ordinary course of business;
(j) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of business, (ii) any Material Contract (including any Project Financing Document), or (iii) any Contract involving total consideration throughout its term in excess of $1,000,000 (except, in the case of the foregoing clauses (ii) and (iii), Contracts entered into in the ordinary course of business, consistent with past practice) or Material Contract, which will be fully performed without the prior written consent of Purchaser;
(f) incurring any Indebtedness in excess of $100,000 (other than under the Credit Agreement);
(g) making capital expenditures or commitments for additions to Closing and under property, plant or equipment constituting capital assets in an aggregate amount exceeding $350,000;
(h) making any material change in the lines of business in which the Acquired Companies will have no further obligations Company and its Subsidiaries participate or liabilities following are engaged (other than as contemplated by the ClosingIndustry RFP in the event the Company is selected as the provider in connection therewith);
(i) selling, assigning, transferring, abandoning or permitting to lapse any material Permits, any material Proprietary Rights or any other material intangible assets, or disclosing any material proprietary confidential information to any Person outside the ordinary course of business consistent with past practice, other than to Purchaser, Youbet and their respective representatives, or granting any license or sublicense of any rights under or with respect to any material Proprietary Rights (other than in the ordinary course of business consistent with past practice);
(j) materially changing its cash management practices (including, without limitation, the timing of collection of receivables and payment of payables and other current liabilities);
(k) waive entering into any claims having a value in excess of $1,000,000merger, individually acquisition, joint venture or in the aggregatepartnership;
(l) make any material election with respect to Taxes;the Inactive Subsidiaries only, conducting any business whatsoever or entering into any transaction whatsoever with the Company, its Subsidiaries, its Affiliates or any other Person (except as provided in Section 3.17); or
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter entering into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authorities; or
(t) agree or commit agreement to do or engage in any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of business.
Appears in 1 contract
Certain Restrictions. Except (a) During the Interim Period, except as required or permitted hereby, or as otherwise set forth in Schedule 6.3, during the Interim Period6.02(a) or unless otherwise contemplated by this Agreement, Seller will shall cause the Acquired Companies Company and the Projects each Company Subsidiary to operate and maintain their Properties in the ordinary course of business and consistent with past practice. Without limiting practice and the foregoing, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or Pre-Approved Expenditures and will refrain from taking any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by following actions without Buyer, ’s consent (which consent shall not be unreasonably withheld, conditioned delayed or delayed conditioned):
(i) except as set forth in Section 7.13, amending its Organizational Documents or undertaking any recapitalization, reorganization, liquidation, dissolution or winding up (provided that this Section 6.3 clause (i) shall not restrict the Company or any Company Subsidiary from dissolving or renaming any Company Subsidiary or transferring the Equity Interest of such Company Subsidiary to the Company or another Company Subsidiary in the ordinary course of business consistent with past practice);
(ii) other than as permitted by the Pre-Approved Expenditures, acquiring any Properties or disposing of any Properties of the Company or any Company Subsidiary (other than acquisitions or dispositions of spare equipment not to exceed Five Hundred Thousand U.S. Dollars ($500,000.00) in the aggregate), or incurring any Liens or permitting any Liens to be imposed on any material Property of the Company or any Company Subsidiary other than Permitted Liens and Liens to support letters of credit or Debt Obligations permitted under Section 6.02(a)(iv);
(iii) entering into any Contract that would be a Company Contract if in existence on the date hereof or amending, modifying or terminating (partially or completely) any material obligation or cost in any Company Contract; provided, however, that nothing in this clause shall inhibit the ability of the Company or any Company Subsidiary to (A) enter into any module supply agreement for any of the Near-Term Projects except for the RE Garland A LLC Project, RE Garland B LLC Project and RE Garland C Project (each as defined in Schedule 1.01(b) with a Tier 1 Supplier so long as (i) the transfer cost of Excluded Itemsmodules is less than or equal to the cost under, (ii) the termination terms of such module supply agreement (including module cost), taken as a whole, are not materially more adverse to the Company or assignment of Excluded ContractsCompany Subsidiary than those set forth in, the module supply arrangement offered by CSI to the Company in an email from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ to ▇▇▇▇▇▇▇▇ Lo on January 15, 2015 and (iii) the taking Tier 1 Supplier is not permitted to terminate such module supply agreement as a result of any action otherwise listed below to the extent reasonably required to accomplish any Buyer’s acquisition of the Permitted Transactions Company or (ivB) the termination of the services contemplated enter into, amend, modify or terminate Contracts (1) as required by Section 6.8a Governmental Authority, and no consent of Buyer will (2) as may be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable by Applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not to:
(a) permit or allow any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets or Interests, except with respect to the Interests as described in Section 3.4;
(b) grant any waiver of any term under, exercise any option under, or give any consent with respect to, any Material Contract;
(c3) sell, transfer, convey or otherwise dispose of any material Purchased Assets outside in the ordinary course of business as of permitted by the Effective DatePre-Approved Expenditures.
(iv) except as permitted by the Pre-Approved Expenditures, incurring Debt Obligations in an aggregate principal amount exceeding the amount set forth on Schedule 1.01(g);
(dv) other than accounts payable incurred in the ordinary course of business merging or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of consolidating with any other Person;
(evi) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of any Person, except for short-term investments made in the ordinary course of business;
(j) enter into, terminate or amend (i) any Material Permit other than as contemplated by this Agreement or undertaken in the ordinary course of business, (ii) canceling any Material Contract (including debts owed to the Company or any Project Financing Document)Company Subsidiary, or (iii) any Contract involving total consideration throughout its term in excess of $1,000,000 (except, in the case of the foregoing clauses (ii) and (iii), Contracts entered into in the ordinary course of business, consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing);
(k) waive waiving any claims or rights, having a value in the aggregate in excess of Five Hundred Thousand U. S. Dollars ($1,000,000, individually or 500,000) in the aggregate;
(lvii) make settling or compromising any material election with respect to TaxesTax or making any new, or changing any existing, material Tax election;
(mviii) amend increasing the level of wages, overall compensation or modify its Organizational Documentsother benefits of any Company Employees (except for previously communicated increases and spot bonuses that do not exceed the amount permitted by the Pre-Approved Expenditures);
(nix) commence establishing a 2015 Annual Incentive Plan (A) with goals that are materially easier to achieve than the goals historically established by the Company or settle (B) with terms and conditions that place any Claimlimitations on the Company, or that give any Company Employee a better right to payment, than the provisions that have historically been included in the Company’s annual incentive plans;
(ox) establishing, entering into or amending (other than amendments required by Applicable Law) any plan or contract that would be considered a Company Employee Benefit Plan that would materially increase the benefits thereunder or the costs to the Company or a Company Subsidiary;
(xi) failing to maintain insurance coverage substantially equivalent to its existing insurance coverage of its Properties as in effect on the date hereof unless such insurance coverage is not available on commercially reasonable terms;
(xii) changing in any material respect the Company or any Company Subsidiary’s accounting methods or practices other than as required by GAAP;
(xiii) declaring or paying any dividends or distributions;
(xiv) making any expenditures, loans or advances that are not Pre-Approved Expenditures;
(xv) enter into any partnership, joint venture, strategic alliance separation or similar contract agreement with any employee of the Company or arrangementany Company Subsidiary;
(pxvi) increase in connection with any Debt Obligations between the compensation payable Company or any Company Subsidiary, on the one hand, and Seller Parent or any other Affiliate of Seller Parent (other than the Company or any Company Subsidiary), on the other hand, charge the Company or any Company Subsidiary any interest or other expense that is not consistent with an arm’s length transaction; or
(xvii) agreeing or committing in writing to become payable do or engage in any of the benefits provided foregoing.
(b) Without limiting Seller Parent’s or Seller’s obligations under this Agreement, including this Section 6.02, nothing contained in this Agreement shall give Buyer, directly or indirectly, the right to control or direct the Company’s or any Company Subsidiary’s operations prior to the Transferrable Project EmployeesClosing. Prior to the Closing and subject to Seller Parent’s and Seller’s obligations under this Agreement and Section 6.02, except Seller shall cause the management of the Company Subsidiaries to exercise, consistent with and in accordance with the terms and conditions of this Agreement and as permitted by the Pre-Approved Expenditures, complete control and supervision over the operations of the Company and the Company Subsidiaries.
(c) During the Interim Period, Seller Parent shall provide Buyer with a weekly report with respect to the items identified on Exhibit C.
(d) During the Interim Period, without limiting the obligations of Seller Parent or Seller under this Section 6.02, Seller shall the Company and each Company Subsidiary to (i) use commercially reasonable efforts to take all actions reasonably necessary at the extent required by applicable Law or by a Governmental Authoritystage of development of each Project to further the development of such Project, (ii) for normal merit use commercially reasonable efforts to maintain all existing relationships with the material agents, customers and cost vendors of living increases the Company and each Company Subsidiary and any Government Approvals or interconnection or transmission rights or positions and (iii) pay all accounts payable and other obligations as they become due and payable in the ordinary course and consistent with past practice.
(e) During the Interim Period, Seller Parent shall promptly notify Buyer (in writing after Seller Parent or Seller has notice thereof), and Buyer shall promptly notify Seller Parent (in writing after Buyer has notice thereof), and keep such other Party advised, as to (i) any Action pending and known to such Party or, to its knowledge, threatened against such Party that challenges the transactions contemplated hereby, (ii) any notice or other communication from any Governmental Authority seeking information regarding the transactions contemplated by this Agreement; and (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend notice or other distribution on communication from any Person alleging that the consent of such Person is or with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined may be required in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent connection with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authorities; or
(t) agree or commit to do any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of businesstransactions contemplated by this Agreement.
Appears in 1 contract
Certain Restrictions. Except as required or permitted hereby, or as otherwise set forth in Schedule 6.3, during Each of the Interim Period, Seller and the Company will (and the Company will cause the Acquired Companies and the Projects to operate in the ordinary course of business and consistent with past practice. Without limiting the foregoing, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (ieach Subsidiary to) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not torefrain from:
(a) permit Amending its certificates or allow articles of incorporation or by-laws (or other comparable corporate charter documents) or taking any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets or Interests, except action with respect to any such amendment or reorganizing, liquidating or dissolving any such corporation, other than the Interests as described in Section 3.4;Subsidiaries of the Company identified on Schedule 3.2(a)(ix) hereto.
(b) grant authorizing, issuing, selling or otherwise disposing of any the Shares or any shares of, or any option, right or warrant to purchase with respect to, capital stock of the Company or any of its Subsidiaries, or modifying or amending any right of any holder of outstanding shares of, or any option, right or warrant to purchase with respect to, capital stock of the Company or any of its Subsidiaries;
(c) declaring, setting aside or paying any dividend or other distribution in respect of the capital stock of the Company or any Subsidiary not wholly owned by the Company, or directly or indirectly redeeming, purchasing or otherwise acquiring any shares of, or any option, right or warrant to purchase with respect to, capital stock of the Company or any Subsidiary not wholly owned by the Company;
(d) acquiring or disposing of, or incurring or suffering any Encumbrance (other than a Permitted Encumbrance) on, any assets and properties or on any Shares or Subsidiary Capital Stock;
(e) (i) entering into, amending, modifying, terminating (partially or completely), granting any waiver of any term under, exercise any option under, under or give giving any consent with respect to, any Material License, Material Permit or Material Contract or any Parent Contract, or (ii) granting any irrevocable powers of attorney;
(cf) sell(i) incurring any Company Indebtedness, transferor (ii) voluntarily purchasing, convey canceling, prepaying or otherwise dispose providing for a complete or partial discharge in advance of a scheduled payment date with respect to, or waiving any right of the Company or any of its Subsidiaries under, any Company Indebtedness;
(g) making capital expenditures or commitments for additions to property, plant or equipment constituting capital assets in an aggregate amount exceeding $300,000;
(h) making any material Purchased Assets change in the lines of business in which the Company or any of its Subsidiaries participates or is engaged;
(i) writing off or writing down any of its assets or properties outside the ordinary course of business as of the Effective Date;
(d) other than accounts payable incurred in the ordinary course of business or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent consistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of any Person, except for short-term investments made in the ordinary course of business;practice; or
(j) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of business, (ii) any Material Contract (including any Project Financing Document), or (iii) any Contract involving total consideration throughout its term in excess of $1,000,000 (except, in the case of the foregoing clauses (ii) and (iii), Contracts entered into in the ordinary course of business, consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing);
(k) waive any claims having a value in excess of $1,000,000, individually or in the aggregate;
(l) make any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter entering into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authorities; or
(t) agree or commit to do or engage in any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of business.
Appears in 1 contract
Certain Restrictions. Except as required or permitted herebycontemplated by this Agreement, or as otherwise set forth in Schedule 6.3, during the Interim Period, Seller will cause the Acquired Companies and the Projects Company to operate in the ordinary course of business and consistent with past practice. Without limiting the foregoing, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not torefrain from:
(a) permit amending its articles of incorporation or allow by-laws (or other comparable corporate charter documents) or taking any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets or Interests, except action with respect to the Interests as described in Section 3.4any such amendment or any recapitalization, reorganization, liquidation or dissolution of any such corporation;
(b) grant any waiver authorizing, issuing (except pursuant to the exercise of outstanding options to purchase Common Stock of the Company), selling or otherwise disposing of any term under, exercise shares of capital stock of or any option underOption with respect to the Company, or give modifying or amending any consent right of any holder of outstanding shares of capital stock of or Option with respect to, any Material Contractto the Company;
(c) selldeclaring, transfersetting aside or paying any dividend or other distribution in respect of the capital stock of the Company, convey or directly or indirectly redeeming, purchasing or otherwise dispose acquiring any capital stock of or any material Purchased Assets outside Option with respect to the ordinary course of business as of the Effective DateCompany;
(d) acquiring or disposing of, or incurring any Lien (other than accounts payable incurred in the ordinary course of business or otherwise incurred pursuant to the Material Contracts or short terma Permitted Lien) on, unsecured borrowings or intercompany loans or guarantees that are paid in full any Assets and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other PersonProperties;
(ei) except as may entering into, amending, modifying, terminating (partially or completely), granting any waiver under or giving any consent with respect to (A) any Contract that would, if in existence on the date of this Agreement, be required to meet be disclosed in the requirements Disclosure Schedule pursuant to Section 2.18 or (B) any material License or (ii) granting any irrevocable powers of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a wholeattorney;
(f) fail violating, breaching or defaulting under in any material respect, or taking or failing to maintain its existence take any action that (with or consolidate without notice or merge with lapse of time or both) would constitute a material violation or breach of, or default under, any other Person term or acquire all or substantially all of the Assets provision of any other Person;
(g) issue License held or sell used by the Company or any equity ownership interestsContract to which the Company is a party or by which any of its Assets and Properties is bound;
(i) commence incurring Indebtedness in an aggregate principal amount exceeding $10,000 (net of any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment amounts of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assetsIndebtedness discharged during such period), or (ii) make voluntarily purchasing, canceling, prepaying or otherwise providing for a general assignment for the benefit complete or partial discharge in advance of its creditorsa scheduled payment date with respect to, or take waiving any action in furtherance of, or indicating its consent to, approval of, or acquiescence inright of the Company under, any Indebtedness of or owing to the acts set forth Company;
(h) engaging with any Person in this Section 6.3(h)any merger or other business combination;
(i) purchase any securities of any Personmaking capital expenditures or commitments for additions to property, except for short-term investments made plant or equipment constituting capital assets in the ordinary course of businessan aggregate amount exceeding $10,000;
(j) enter into, terminate or amend (i) making any Material Permit other than change in the ordinary course lines of business, (ii) any Material Contract (including any Project Financing Document), business in which they participate or (iii) any Contract involving total consideration throughout its term in excess of $1,000,000 (except, in the case of the foregoing clauses (ii) and (iii), Contracts entered into in the ordinary course of business, consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing)are engaged;
(k) waive writing off or writing down any claims having a value in excess of $1,000,000, individually or in the aggregatetheir Assets and Properties;
(l) make except as set forth in Section 4.6(l) of the Disclosure Schedule, modifying any material election with respect compensation terms or paying any bonuses to Taxes;a current or former employee, director, consultant or Affiliate; or
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter entering into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authorities; or
(t) agree or commit to do or engage in any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of business.
Appears in 1 contract
Sources: Stock Purchase Agreement (Qad Inc)
Certain Restrictions. Except as required or permitted herebyexpressly provided for in this Agreement, the Operative Agreements, or as otherwise set forth in Schedule 6.3the Plan, during the Interim PeriodWaccamaw will, Seller and will cause the Acquired Companies and the Projects its Subsidiaries to, refrain from:
(a) amending their certificates or articles of incorporation or by-laws (or other comparable corporate charter documents) in any material respect or taking any action with respect to operate any such amendment or any recapitalization, reorganization, liquidation or dissolution of any such corporation;
(b) authorizing, issuing, selling or otherwise disposing of any shares of capital stock of or any Option with respect to Waccamaw or any of its Subsidiaries, or modifying or amending any right of any holder of outstanding shares of capital stock of or Option with respect to Waccamaw or any of its Subsidiaries, other than in the ordinary course of business and consistent with past practice. Without limiting pursuant to the foregoingWaccamaw Option Plan not to exceed 400,000 shares of Waccamaw Common Stock reserved for issuance for such Options
(c) declaring, except as otherwise set forth setting aside or paying any dividend or other distribution in Schedule 6.3, required or permitted hereby or required by applicable Laws respect of the capital stock of Waccamaw or any Material Contract in effect as of the Effective Date its Subsidiaries not wholly owned, directly or amended as permitted hereby indirectly, by Waccamaw, or as consented to by Buyerdirectly or indirectly redeeming, which consent shall not be unreasonably withheld, conditioned purchasing or delayed (except that this Section 6.3 shall not restrict (i) the transfer otherwise acquiring any capital stock of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required Option with respect to Waccamaw or any matter set forth in this Section 6.3 of its Subsidiaries not wholly owned, directly or elsewhere in this Agreement to indirectly, by the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not to:Waccamaw;
(ad) permit other than in the ordinary course of business, acquiring or allow disposing of, or incurring any Encumbrances Lien (other than a Permitted EncumbrancesLien) to be imposed on on, any Assets and Properties individually or against any of in the Purchased Assets or Interests, except with respect aggregate material to the Interests as described in Section 3.4Business or Condition of Waccamaw;
(be) grant entering into, amending, modifying, terminating (partially or completely), granting any waiver of any term under, exercise any option under, under or give giving any consent with respect to, any Material Contract;
(c) sellContract or License material to the Business or Condition of Waccamaw, transfer, convey or otherwise dispose of any material Purchased Assets outside the ordinary course of business as of the Effective Date;
(d) other than accounts payable incurred in the ordinary course of business or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of any Person, except for short-term investments made in the ordinary course of business;
(jf) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of businessbusiness (i) voluntarily incurring Indebtedness, or (ii) any Material Contract (including any Project Financing Document)purchasing, canceling, prepaying or otherwise providing for a complete or partial discharge in advance of a scheduled payment date with respect to, or waiving any right under, any Indebtedness (iii) any Contract involving total consideration throughout its term in excess either case other than Indebtedness of $1,000,000 (except, in the case Waccamaw or a Subsidiary of the foregoing clauses (ii) and (iii), Contracts entered into in the ordinary course Waccamaw owing to Waccamaw or a wholly-owned Subsidiary of business, consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the ClosingWaccamaw);
(kg) waive without limiting Section 6.04, engaging with any claims having a value Person in excess of $1,000,000, individually any merger or in the aggregateother business combination;
(lh) make any material election with respect making capital expenditures or commitments for additions to Taxesproperty, plant or equipment constituting capital assets in an aggregate amount exceeding $4,000,000;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) except to the extent required by applicable Law or reasonably and in good faith believed by a Governmental Authoritythe officers of Waccamaw to be in the best interests of Waccamaw and its Subsidiaries, making any material change in (iiA) for normal merit and cost of living increases consistent with past practiceany pricing, investment, accounting, financial reporting, inventory, credit, allowance or Tax practice or policy, or (iiiB) changes any method of calculating any bad debt, contingency or other reserve for accounting, financial reporting or Tax purposes;
(j) other than in salary the ordinary course of business or to the extent necessary as determined required by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basisapplicable Law, adopting, entering into or becoming bound by any material Benefit Plan, employment-related Contract or collective bargaining agreement, or amending, modifying or terminating (ivpartially or completely) changes to any Plant Employee’s such Benefit Plan effective January 1Plan, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Dateemployment-related Contract or collective bargaining agreement;
(qk) declare, set aside, make or pay making any cash or non-cash dividend or other distribution on or with respect to any of change in its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authoritiesfiscal year; or
(tl) agree or commit entering into any Contract to do or engage in any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of business.
Appears in 1 contract
Certain Restrictions. Except Following the date hereof and prior to the Expiration Date (as required defined in subparagraph (c) below), Holder shall not, directly or permitted herebyindirectly, by operation of law or otherwise, sell, assign, pledge, or as otherwise set forth in Schedule 6.3dispose of or transfer any Restricted Shares beneficially owned by Holder, during the Interim Period, Seller will cause the Acquired Companies and the Projects to operate in the ordinary course of business and consistent with past practice. Without limiting the foregoing, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict other than (i) the transfer of Excluded Itemspursuant to Section 8, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the following termination of the services contemplated by Section 6.8Merger Agreement, and no consent of Buyer will be required with respect pursuant to any matter set forth in this Section 6.3 a merger, share exchange, tender or elsewhere in this Agreement to the extent exchange offer, or other business combination that the requirement of such consent would reasonably be expected to violate any applicable Law)has been approved or recommended, Seller will, during the Interim Period, cause the Acquired Companies not to:
(a) permit or allow any Encumbrances (other than Permitted Encumbrances) otherwise determined to be imposed on or against any fair and in the best interests of the Purchased Assets or Interestsshareholders of Issuer, except with respect to the Interests as described in Section 3.4;
(b) grant any waiver of any term under, exercise any option under, or give any consent with respect to, any Material Contract;
(c) sell, transfer, convey or otherwise dispose of any material Purchased Assets outside the ordinary course of business as by a majority of the Effective Date;
members of the Board of Directors of Issuer (d) other than accounts payable incurred in which majority shall include a majority of the ordinary course of business or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged directors who were directors prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations announcement of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of any Person, except for short-term investments made in the ordinary course of business;
(j) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of business, (ii) any Material Contract (including any Project Financing Documentsuch business combination), or (iii) any Contract involving total consideration throughout its term in excess of $1,000,000 accordance with Section 10. (exceptb) Other than pursuant to the Merger Agreement, in following the case of the foregoing clauses (ii) date hereof and (iii), Contracts entered into in the ordinary course of business, consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations Expiration Date, without the prior written consent of Issuer, Holder shall not, nor shall Holder permit its Affiliates to, directly or liabilities following the Closing);
(k) waive any claims having a value in excess of $1,000,000indirectly, individually alone or in the aggregate;
(l) make concert or conjunction with any material election with respect to Taxes;
(m) amend other Person or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnershipgroup of Persons, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) in any manner acquire, agree to acquire or make any proposal to acquire, any securities of, equity interest in, or any material property of, the extent required by applicable Law Issuer (other than pursuant to this Agreement or by a Governmental Authoritythe Merger Agreement), (ii) for normal merit and cost except at the specific written request of living increases consistent with past practiceIssuer, propose to enter into any merger, share exchange, or other business combination involving Issuer or to purchase a material portion of the Assets of Issuer, (iii) changes make or in salary any way participate in any "solicitation" of "proxies" (as such terms are used in Regulation 14A promulgated under the ▇▇▇▇ ▇▇▇) to vote, or seek to advise or influence any Person with respect to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basisvoting of, or any voting securities of Issuer, (iv) changes to form, join or in any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as way participate in a group of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or Persons acting in concert with respect to any voting securities of its ownership interests Issuer, (other than distributions solely among v) seek to control or influence the Acquired Companiesmanagement, Board of Directors or policies of Issuer, (vi) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into disclose any Contract intention, plan or arrangement inconsistent with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authorities; or
(t) agree or commit to do any of the foregoing. Notwithstanding the foregoing, Seller (vii) advise, assist or encourage any other Person in connection with the foregoing, or (viii) request Issuer (or its directors, officers, employees or agents) to amend or waive any provision of this Section 9(b), or take any action which may permit require Issuer to make a public announcement regarding the Acquired Companies possibility of a business combination or merger with such party. Issuer shall not adopt any "Rights Plan" or similar arrangement in any manner which would cause Holder, if Holder has complied with its obligations under this Agreement, to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt become an "Acquiring Person" under such Rights Agreement solely by reason of notice the beneficial ownership of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of businessshares purchasable hereunder.
Appears in 1 contract
Certain Restrictions. Except as required or permitted herebyFrom the date hereof through the Closing Date, or as otherwise set forth in Schedule 6.3each of Holdings, during the Interim Period, Seller will cause the Acquired Companies and the Projects Company will, and Holdings, and the Company shall cause their Subsidiaries to operate in the ordinary course of business and consistent with past practice. Without limiting the foregoing, (except as otherwise set forth in Schedule 6.3, required expressly contemplated by this Agreement or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict Reorganization Plan):
(i) refrain from amending the transfer Certificate of Excluded Items, Incorporation or By-Laws (iior similar governing document) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth such amendment or any reorganization, liquidation or dissolution of Holdings, the Company or any of their Subsidiaries;
(ii) refrain from violating, breaching or defaulting under, or taking or failing to take any action that (with or without notice or lapse of time or both) would constitute a material violation or breach of, or default under, any Contract or Real Property Lease listed in Section 2R(i) or Section 2O(ii) of the Disclosure Letter or which would have been required to be listed in such Sections of the Disclosure Letter if such Contract or Real Property Lease would have existed on the date hereof to which the Company or any Subsidiary is a party or by which any of its respective Assets and Properties are bound, including the termination or rejection (whether pursuant to Section 365 of the Bankruptcy Code or otherwise) of any Contract, except as expressly contemplated by Section 2R(i) of the Disclosure Letter;
(iii) (a) use commercially reasonable efforts to refrain from taking or agreeing or committing to take, or omitting or agreeing or committing to omit any action that would make any representation or warranty of Holdings, or the Company hereunder (including Section 2I of this Section 6.3 Agreement) inaccurate in any material respect; or elsewhere in (b) refrain from taking any action that would cause any covenant or agreement required by this Agreement to be performed or complied with on or before the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not to:
(a) permit or allow any Encumbrances (other than Permitted Encumbrances) Closing Date to be imposed on not performed or against any of the Purchased Assets or Interests, except complied with respect to the Interests as described in Section 3.4;
(b) grant any waiver of any term under, exercise any option under, or give any consent with respect to, any Material Contract;
(c) sell, transfer, convey or otherwise dispose of any material Purchased Assets outside the ordinary course of business as of the Effective Date;
(d) other than accounts payable incurred in the ordinary course of business or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of any Person, except for short-term investments made in the ordinary course of business;
(j) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of business, (ii) any Material Contract (including any Project Financing Document), or (iii) any Contract involving total consideration throughout its term in excess of $1,000,000 (except, in the case of the foregoing clauses (ii) and (iii), Contracts entered into in the ordinary course of business, consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing);
(k) waive any claims having a value in excess of $1,000,000, individually or in the aggregate;
(l) make any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authoritieson or before such date; orand
(tiv) agree refrain from entering into any agreement or commit otherwise making any commitment to do or engage in any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of business.
Appears in 1 contract
Certain Restrictions. Except as required or permitted hereby, or as otherwise set forth in Schedule 6.3, during the Interim Period, Seller will cause the Acquired Companies and the Projects to operate in the ordinary course of business and consistent with past practice. Without limiting the foregoing, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services expressly contemplated by Section 6.8this Agreement, and no consent of Buyer Sellers will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not torefrain from:
(a) permit amending their certificates of incorporation or allow by-laws (or other comparable corporate charter documents) in any Encumbrances (other than Permitted Encumbrances) to be imposed on respect or against taking any of the Purchased Assets or Interests, except action with respect to any such amendment or any recapitalization, reorganization, liquidation or dissolution of any such corporation; provided, however, that Group may amend its certificate of incorporation at any time prior to the Interests as described in Section 3.4Effective Time consistent with the terms of this Agreement;
(b) grant any waiver authorizing, issuing, selling or otherwise disposing of any term under, exercise shares of capital stock of or any option underwith respect to Sellers, or give modifying or amending any consent right of any holder of outstanding shares of capital stock of or options with respect to, any Material Contractto Sellers;
(c) selldeclaring, transfersetting aside or paying any dividend or other distribution in respect of the capital stock of Sellers or directly or indirectly redeeming, convey purchasing or otherwise dispose acquiring any capital stock of or any material Purchased Assets outside the ordinary course of business as of the Effective Dateoption with respect to Sellers;
(d) other than accounts payable incurred in the ordinary course Ordinary Course of Business, acquiring or disposing of, or incurring any Encumbrance (other than a Permitted Encumbrance) on, any assets and properties which individually or in the aggregate are material to the business or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations condition of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, Sellers taken as a whole;
(e) other than in the Ordinary Course of Business, entering into, amending, modifying, terminating (partially or completely), granting any waiver under or giving any consent with respect to any Contract or license;
(f) fail to maintain its existence other than in the Ordinary Course of Business (i) voluntarily incurring Indebtedness (other than Indebtedness existing on the date hereof), or consolidate (ii) purchasing, canceling, prepaying or merge otherwise providing for a complete or partial discharge in advance of a scheduled payment date with respect to, or waiving any other Person or acquire all or substantially all of the Assets of right under, any other PersonIndebtedness;
(g) issue making capital expenditures or sell any equity ownership interestscommitments for additions to property, plant or equipment constituting capital assets in an aggregate amount exceeding $100,000;
(ih) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of any Person, except for short-term investments made in the ordinary course of business;
(j) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of business, (ii) any Material Contract (including any Project Financing Document), or (iii) any Contract involving total consideration throughout its term in excess of $1,000,000 (except, in the case of the foregoing clauses (ii) and (iii), Contracts entered into in the ordinary course of business, consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing);
(k) waive any claims having a value in excess of $1,000,000, individually or in the aggregate;
(l) make any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law making any material change in (A) any investment, accounting, financial reporting, inventory, credit, allowance or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practiceTax practice or policy, or (iiiB) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basisany method of calculating any bad debt, contingency or (iv) changes to any Plant Employee’s Benefit Plan effective January 1other reserve for accounting, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Datefinancial reporting or Tax purposes;
(qi) declareadopting, set asideentering into or becoming bound by any material Benefit Plan or material Contract, make or pay amending, modifying or terminating (partially or completely) any cash such Benefit Plan or non-cash dividend or other distribution on or with respect to material Contract.
(j) making any of change in its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement)fiscal year;
(rk) enter increasing or otherwise changing the rate or nature of the compensation (including wages, salaries, bonuses and benefits under any Benefit Plan) which is paid or payable to any officer, employee or other representative of the Business, except in the Ordinary Course of Business or with the Purchaser's prior consent.
(l) making, or committing to make, any payment, contribution or award under or into any Contract with any Related PartyPlan;
(sm) delayentering into any transaction between Sellers, deferor between Sellers and any officer, reduce director, or otherwise alter in affiliate of Sellers;
(n) entering into any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authoritiesnew lease for carts or kiosks; or
(to) agree or commit entering into any Contract to do or engage in any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of business.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Archibald Candy Corp)
Certain Restrictions. Except as required or permitted hereby, or as otherwise set forth in Schedule 6.3, during From the Interim Perioddate of this Agreement through the Closing, Seller will cause the Acquired Companies and the Projects to operate shall not:
(a) Without limiting Seller’s obligations or Buyer’s rights under Section 5.2 above, other than in the ordinary course of business and consistent with past practice. business, incur or permit to exist any Lien (other than a Permitted Lien) on any of the Purchased Assets;
(b) Without limiting the foregoingany of Seller’s obligations hereunder, and except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyerwith ▇▇▇▇▇’s written consent, which consent shall not be unreasonably withheld, conditioned conditioned, or delayed delayed, enter into, amend or modify, terminate (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination partially or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Lawcompletely), Seller will, during the Interim Period, cause the Acquired Companies not to:
(a) permit or allow any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets or Interests, except with respect to the Interests as described in Section 3.4;
(b) grant any waiver of any term under, exercise any option under, under or give any consent with respect toto the Real Property, any Material Business Contract, or any Project Permit;
(c) sellAgree to any mitigation efforts that would be reasonably likely to impose any significant additional costs, expenses or obligations on Buyer or the Project in connection with obtaining any Project Permit unless Seller reimburses or otherwise holds Buyer harmless from such additional costs, expenses or obligations to the reasonable satisfaction of Buyer.
(d) Sell, transfer, convey assign or convey, abandon or otherwise dispose of any material Purchased Assets outside the ordinary course of business as of the Effective Date;
(d) other than accounts payable incurred in the ordinary course of business assets, properties, rights or otherwise incurred pursuant interests comprising or relating to the Material Contracts Project or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other PersonPurchased Assets;
(e) except as may be required Settle or compromise any third party claim with respect to meet the requirements Project or the Purchased Assets, without first obtaining the approval of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a wholeBuyer;
(f) fail Settle or compromise or enter into any closing agreement with respect to maintain its existence any Tax audit or consolidate other Tax matter, file any amended Tax Return or merge claim for Tax refund, change any Tax elections or methods of accounting or request a Tax ruling from a Governmental Authority, in each case, with any other Person respect to the Project or acquire all or substantially all of the Assets of any other Person;Purchased Assets; or
(g) issue or sell Enter into any equity ownership interests;
(i) commence any casecontract, proceeding agreement or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of any Person, except for short-term investments made in the ordinary course of business;
(j) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of business, (ii) any Material Contract (including any Project Financing Document), or (iii) any Contract involving total consideration throughout its term in excess of $1,000,000 (except, in the case of the foregoing clauses (ii) and (iii), Contracts entered into in the ordinary course of business, consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing);
(k) waive any claims having a value in excess of $1,000,000, individually or in the aggregate;
(l) make any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authorities; or
(t) agree or commit arrangement to do or engage in any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of business.
Appears in 1 contract
Sources: Asset Purchase and Sale Agreement (OPAL Fuels Inc.)
Certain Restrictions. Except as required Sellers and Will▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇l refrain from:
(a) acquiring or permitted herebydisposing of any Assets and Properties used or held for use in the conduct of the Business (other than (i) ordering and/or acquiring the equipment listed in Section 1.02(a)(iv) of the Disclosure Schedule, or as otherwise set forth in Schedule 6.3, during the Interim Period, Seller will cause the Acquired Companies and the Projects to operate (ii) equipment ordered in the ordinary course of business the Business and consistent with past practice. Without limiting the foregoing, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not to:
(a) permit or allow any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets or Interests, except with respect to the Interests as described in Section 3.4;
(b) grant any waiver of any term under, exercise any option under, or give any consent with respect to, any Material Contract;
(c) sell, transfer, convey or otherwise dispose of any material Purchased Assets outside the ordinary course of business as of the Effective Date;
(d) other than paying accounts payable incurred in the ordinary course of business or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of any Person, except for short-term investments made collecting Accounts Receivable in the ordinary course of business), or creating or incurring any Lien, other than a Permitted Lien, on any Assets and Properties used or held for use in the conduct of the Business;
(jb) enter entering into, terminate amending, modifying, terminating (partially or amend completely), granting any waiver of any material provision, under any Business Contract or any material Business License;
(ic) violating, breaching or defaulting under, or taking or failing to take any Material Permit action that (with or without notice or lapse of time or both) would constitute a violation or breach of, or default under, any term or provision of any Business Contract or any Business License, except to the extent that any such violation, breach, default, action or failure to take action would not have material adverse effect on the Condition of the Business;
(d) incurring, purchasing, canceling, prepaying or otherwise providing for a complete or partial discharge in advance of a scheduled payment date with respect to, or waiving any right of either Deck▇▇ ▇▇ Van Houten under, any Liability of or owing to either Deck▇▇ ▇▇ Van Houten, as the case may be, in connection with the Business, other than in the ordinary course of businessbusiness consistent with past practice;
(e) engaging with any Person in any Business Combination, unless such Person agrees in a written instrument in form and substance reasonably satisfactory to Purchaser to adopt and comply with the terms and conditions of this Agreement as though such Person was an original signatory hereto;
(iif) engaging in any Material Contract (including transaction with respect to the Business with any Project Financing Document)officer, director, Affiliate or Associate of Deck▇▇ or Van Houten, or (iii) any Contract involving total consideration throughout its term in excess Associate of $1,000,000 (exceptany such officer, in the case of the foregoing clauses (ii) and (iii)director or Affiliate, Contracts entered into except for actions in the ordinary course of business, consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing)employment of any such party;
(kg) waive any claims having a value in excess of $1,000,000making capital expenditures or commitments for additions to property, individually plant or in the aggregate;
(l) make any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases equipment constituting capital assets on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as behalf of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental AuthoritiesBusiness; or
(th) agree or commit entering into any Contract to do or engage in any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of business.
Appears in 1 contract
Sources: Asset Purchase Agreement (Pam Transportation Services Inc)
Certain Restrictions. Except as required or permitted hereby, or as otherwise set forth in Schedule 6.3, during the Interim Period, Seller The Company and its Subsidiaries will cause the Acquired Companies and the Projects to operate in the ordinary course of business and consistent with past practice. Without limiting the foregoing, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not torefrain from:
(a) permit amending their articles of incorporation or allow by-laws (or other comparable corporate charter documents) or taking any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets or Interests, except action with respect to any such amendment or any recapitalization, reorganization, liquidation or dissolution of any the Interests as described in Section 3.4corporation;
(b) grant any waiver authorizing, issuing, selling or otherwise disposing of any term under, exercise shares of capital stock of or any option underOption with respect to the Company or any of its Subsidiaries, or give modifying or amending any consent right of any holder of outstanding shares of capital stock of or Option with respect to, to the Company or any Material Contractof its Subsidiaries;
(c) selldeclaring, transfersetting aside or paying any dividend or other distribution in respect of the capital stock of the Company, convey or directly or indirectly redeeming, purchasing or otherwise dispose acquiring any capital stock of or any material Purchased Assets outside Option with respect to the ordinary course of business as of the Effective DateCompany;
(d) other than accounts payable incurred in the ordinary course of business acquiring or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance disposing of, or indicating its consent to, approval of, or acquiescence inincurring any Lien (other than a Permitted Lien) on, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of any PersonAssets and Properties, except for short-term investments made in the ordinary course of business;
(j) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of businessbusiness consistent with past practice;
(e) entering into, amending, modifying, terminating (iipartially or completely), granting any waiver under or giving any consent with respect to any Contract or License;
(f) violating, breaching or defaulting under in any Material material respect, or taking or failing to take any action that (with or without notice or lapse of time or both) would constitute a material violation or breach of, or default under, any term or provision of any License held or used by the Company or any of its Subsidiaries or any Contract to which the Company or any of its Subsidiaries is a party or by which any of their respective Assets and Properties are bound;
(including i) incurring Indebtedness in an aggregate principal amount exceeding $50,000 (net of any Project Financing Documentamounts of Indebtedness discharged during such period), or (iiiii) purchasing, canceling, prepaying or otherwise providing for a complete or 41 49 partial discharge in advance of a scheduled payment date with respect to, or waiving any Contract involving total consideration throughout its term in excess of $1,000,000 (except, in the case right of the foregoing clauses (ii) and (iii)Company or any of its Subsidiaries under, Contracts entered into in any Indebtedness of or owing to the ordinary course Company or any of business, consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing)its Subsidiaries;
(kh) waive engaging in any claims having a value in excess of $1,000,000transaction with any officer, individually director or in the aggregate;
(l) make any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as Affiliate of the Effective Date;
(q) declare, set aside, make Company or pay any cash or non-cash dividend or other distribution on or with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delaySubsidiaries, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authorities; or
(t) agree or commit to do any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken either outside the ordinary course of businessbusiness consistent with past practice or other than on an arm's-length basis;
(i) making capital expenditures or commitments for additions to property, plant or equipment constituting capital assets in an aggregate amount exceeding $50,000; or
(j) entering into any Contract to do or engage in any of the foregoing.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Graham Field Health Products Inc)
Certain Restrictions. Except as required or permitted hereby, or as otherwise set forth in Schedule 6.3, during the Interim Periodby applicable -------------------- Laws, Seller will refrain from, and Parent will cause Seller to refrain from:
(a) disposing of any Assets and Properties used or held for use in the Acquired Companies and conduct of the Projects to operate Business, other than Inventory in the ordinary course of business and consistent with past practice. Without limiting practice and other dispositions not exceeding $100,000 in the foregoingaggregate, except as otherwise set forth or creating or incurring any Lien, other than a Permitted Lien, on any Assets and Properties used or held for use in Schedule 6.3the conduct of the Business;
(b) entering into, required amending, modifying, terminating (partially or permitted hereby completely), granting any waiver under or required by applicable Laws giving any consent with respect to any Business Contract or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyermaterial Business License without Purchaser's prior written consent, which consent shall not be unreasonably withheld, conditioned withheld or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not to:
(a) permit or allow any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets or Interests, except with respect to the Interests as described in Section 3.4;
(b) grant any waiver of any term under, exercise any option under, or give any consent with respect to, any Material Contractdelayed;
(c) sellviolating, transferbreaching or defaulting under in any material respect, convey or otherwise dispose taking or failing to take any action that (with or without notice or lapse of time or both) would constitute a material violation or breach of, or default under, any term or provision of any material Purchased Assets outside the ordinary course of business as of the Effective DateBusiness Contract or any Business License;
(d) other than accounts payable incurred in the ordinary course of business incurring, purchasing, canceling, prepaying or otherwise incurred pursuant to the Material Contracts providing for a complete or short term, unsecured borrowings or intercompany loans or guarantees that are paid partial discharge in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations advance of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered scheduled payment date with respect to itto, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment waiving any right of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence inSeller under, any Liability of or owing to Seller in connection with the acts set forth in this Section 6.3(h);
(i) purchase any securities of any PersonBusiness, except for short-term investments made in the ordinary course of business;
(j) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of business, (ii) any Material Contract (including any Project Financing Document), or (iii) any Contract involving total consideration throughout its term in excess of $1,000,000 (except, in the case of the foregoing clauses (ii) and (iii), Contracts entered into in the ordinary course of business, business consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing);
(ke) waive engaging with any claims having a value Person in excess of $1,000,000, individually or in the aggregateany Business Combination;
(lf) make engaging in any material election transaction with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract Business with any Related Party;
(s) delayofficer, deferdirector or Affiliate of Seller, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authorities; or
(t) agree or commit to do any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken either outside the ordinary course of businessbusiness consistent with past practice or other than on an arm's-length basis;
(g) making capital expenditures or commitments for additions to property, plant or equipment constituting capital assets on behalf of the Business in an aggregate amount exceeding $2,000,000 except upon receipt of the written consent of Purchaser; or
(h) entering into any Contract to do or engage in any of the foregoing.
Appears in 1 contract
Certain Restrictions. Except as (i) required by applicable -------------------- Laws, the Bankruptcy Proceedings or permitted herebySection 1.01(c), (ii) authorized under --------------- Section 15.08, or as otherwise set forth (iii) provided in Schedule 6.3Section 15.06 with respect to the Tunica ------------- ------------- Business, during the Interim PeriodSellers will refrain from, Seller and Parent will cause Sellers to refrain from:
(a) disposing of any Assets and Properties used or held for use in the Acquired Companies and conduct of the Projects to operate Business, other than Inventory in the ordinary course of business and consistent with past practice. Without limiting practice and other dispositions not exceeding $100,000 in the foregoingaggregate for each of the Las Vegas Business, except as otherwise set forth the Black Hawk Business and the Tunica Business, or creating or incurring any Lien, other than a Permitted Lien, on any Assets and Properties used or held for use in Schedule 6.3the conduct of the Business;
(b) entering into, required amending, modifying, terminating, granting any waiver under or permitted hereby or required by applicable Laws giving any consent with respect to any Business Contract or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyermaterial Business License without Purchaser's prior written consent, which consent shall not be unreasonably withheld, conditioned withheld or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not to:
(a) permit or allow any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets or Interests, except with respect to the Interests as described in Section 3.4;
(b) grant any waiver of any term under, exercise any option under, or give any consent with respect to, any Material Contractdelayed;
(c) sellviolating, transferbreaching or defaulting under in any material respect, convey or otherwise dispose taking or failing to take any action that would constitute a material violation or breach of, or default under, any term or provision of any material Purchased Assets outside the ordinary course of business as of the Effective DateBusiness Contract or any Business License;
(d) other than accounts payable incurred in the ordinary course of business incurring, purchasing, canceling, prepaying or otherwise incurred pursuant to the Material Contracts providing for a complete or short termpartial discharge in advance of a scheduled payment date with respect to, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue waiving any debt securities or assume or guarantee the obligations right of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence inSeller under, any Liability of or owing to any Seller in connection with the acts set forth in this Section 6.3(h);
(i) purchase any securities of any PersonBusiness, except for short-term investments made in the ordinary course of business;
(j) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of businessbusiness consistent with past practice;
(e) engaging with any Person in any Business Combination;
(f) engaging in any transaction with respect to the Business with any officer, director or Affiliate of any Seller, either outside the ordinary course of business consistent with past practice or other than on an arm's- length basis;
(g) making capital expenditures or commitments for additions to property, plant or equipment constituting capital assets on behalf of the Business in an aggregate amount exceeding the greater of (i) $2,000,000 or (ii) if the period between the date of this Agreement and the Closing Date exceeds 12 months, $2,000,000 plus $166,667 per month for each month after such 12-month ---- period (and prorated for any Material Contract (including any Project Financing Documentsuch partial month), or (iii) any Contract involving total consideration throughout its term in excess of $1,000,000 (exceptother than gaming equipment, in the case of the foregoing clauses (ii) devices and (iii), Contracts entered into products acquired in the ordinary course of business, consistent with past practice, which will be fully performed prior to Closing and under which except upon receipt of the Acquired Companies will have no further obligations or liabilities following the Closing)written consent of Purchaser;
(kh) waive increasing the Employees' cash compensation or severance pay entitlements, or making any claims having a value other material changes in excess of $1,000,000, individually or in the aggregate;
(l) make any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the Sellers' respective compensation payable or to become payable or the benefits provided to the Transferrable Project Employeesand personnel policies, except (i) for reasonable and customary periodic compensation increases and bonuses based on performance and consistent with past practice or in accordance with the bonus programs applicable generally to Employees, as described in Section 4.06(h) of the extent required by applicable Law Disclosure Schedule ------------------------------------------ (collectively, the "Bonus Program"), or by a Governmental Authority, (ii) as specifically authorized by the Restructuring Agreement;
(i) making any material changes in the operation of Sellers' promotional and marketing program, commonly referred to as the "Fitzgeralds Players Card," available to gaming patrons at each Business location including, without limitation, material changes in the methods of calculating or canceling points and issuing awards to participants in the program who have accumulated designated point levels or shortening the expiration periods for normal merit points; provided, however, that the foregoing limitations shall not restrict Sellers ----------------- from making periodic changes to such program in the ordinary course and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(qj) declare, set aside, make exchanging or pay any cash trading equipment or non-cash dividend or other distribution on or machinery with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental AuthoritiesFR; or
(tk) agree or commit entering into any Contract to do or engage in any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of business.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Majestic Star Casino LLC)
Certain Restrictions. Except in connection with transactions contemplated by Section 4.04 or except as required or permitted herebydisclosed in Section 4.04(c) of the Disclosure Schedule, or as otherwise set forth in Schedule 6.3, during the Interim Period, Seller Parent will cause the Acquired Companies Company and the Projects Subsidiaries to operate in the ordinary course of business and consistent with past practice. Without limiting the foregoing, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not torefrain from:
(a) permit amending their certificates or allow articles of incorporation or by-laws (or other comparable corporate charter documents) or taking any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets or Interests, except action with respect to the Interests as described in Section 3.4any such amendment or any recapitalization, reorganization, liquidation or dissolution of any such corporation;
(b) grant any waiver authorizing, issuing, selling or otherwise disposing of any term undershares of capital stock or other equity, exercise interests or options of the Company or any option underSubsidiary, or give modifying or amending any consent with respect to, right of any Material Contractholder of outstanding shares of capital stock of the Company or any Subsidiary;
(c) selldeclaring, transfersetting aside or paying any dividend or other distribution in respect of the capital stock of the Company or any Subsidiary, convey or directly or indirectly redeeming, purchasing or otherwise dispose of acquiring any material Purchased Assets outside the ordinary course of business as capital stock of the Effective DateCompany or any Subsidiary not wholly owned, directly or indirectly, by the Company (other than the acquisition of shares held by the management);
(d) other than accounts payable incurred in the ordinary course of business or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of any Person, except for short-term investments made in the ordinary course of business;
(j) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of business, (ii) any Material Contract (including any Project Financing Document)acquiring or disposing of, or incurring any Lien (iiiother than a Permitted Lien) on, any Contract involving total consideration throughout its term in excess of $1,000,000 material Assets and Properties;
(except, in the case of the foregoing clauses (iie) and (iii), Contracts entered into other than in the ordinary course of business, consistent with past practicevoluntarily assuming, which will be fully performed prior to Closing and incurring or guaranteeing Indebtedness except as permitted under which the Acquired Companies will have no further obligations or liabilities following the Closing)paragraph (l) below;
(kf) waive any claims having a value in excess of $1,000,000, individually or in the aggregate;
(l) make any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law Law, making any material change in accounting, financial reporting, Tax practice or by policy;
(g) making any change in its fiscal year;
(h) entering into or amending any tax sharing agreements or arrangements to which the Company and any Subsidiary is a Governmental Authorityparty, except entering into tax sharing agreements with EAC Holdings Corporation, EAC Acquisition Corporation, Etonic Worldwide Corporation and EWW Lisco, Inc.;
(iii) for normal merit cancelling or compromising any debts owed to it other than in the ordinary course of business or waiving or releasing any rights of material value;
(j) amending, modifying or terminating any policies of title, liability, fire, worker's compensation, property, products liability and cost any other insurance covering the Assets and Properties or the operations of living increases the Company or any Subsidiary;
(k) amending, modifying or terminating or entering into any material contract, commitment, lease or agreement to which any of the Company or any of the Subsidiaries or its Assets and Properties is bound, other than in the ordinary course of business consistent with past practice;
(l) entering into any Contract with Parent or any of Parent's officers, directors or Affiliates (iiiother than the Subsidiaries), except for borrowings under the Interim Credit Agreement and loans under the ▇▇▇▇▇▇▇▇ Notes and the Pack-A-Snack Note which borrowings shall be paid at the Closing;
(m) changes in salary to settling or otherwise compromising any Tax audit or proceeding;
(n) purchasing the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basissecurities (except short-term debt securities for investment purposes) of any other Person;
(o) closing any plants or facilities;
(p) entering into any material partnership, joint venture or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;other material similar transaction; and
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter entering into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authorities; or
(t) agree or commit agreeing to do or engage in any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of business.
Appears in 1 contract
Sources: Recapitalization and Stock Purchase Agreement (E&s Holdings Corp)
Certain Restrictions. Except as required or permitted hereby, or as otherwise set forth in Schedule 6.3, during the Interim Period, Seller will cause the Acquired Companies and the Projects to operate in the ordinary course of business and consistent with past practice. Without limiting the foregoing, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict Refrain from: (i) changing or amending the transfer Charter Documents of Excluded Items, the Cathedral Group; (ii) the termination merging with or assignment of Excluded Contracts, into or consolidating with any other Person; (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not to:
(a) permit or allow any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets or Interests, except with respect to the Interests as described in Section 3.4;
(b) grant any waiver of any term under, exercise any option under, or give any consent with respect to, any Material Contract;
(c) sell, transfer, convey or otherwise dispose of any material Purchased Assets outside the ordinary course of business as of the Effective Date;
(d) other than accounts payable incurred in the ordinary course of business or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire acquiring all or substantially all of the Assets stock or the assets of any other Person;
Person or changing the character of its business; (giv) issue issuing or sell selling any equity ownership interests;
shares of its capital stock of any class or any securities convertible into, or options, warrants to purchase or rights to subscribe to, any shares of its capital stock; (iv) commence permitting any caseliens upon, proceeding pledging or otherwise encumbering any shares of its capital stock or any of its assets or properties; (vi) declaring, paying or setting aside for payment any dividend or other action under any existing or future Debtor Relief Law, seeking (A) distribution to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts stockholders of the Companies, in respect of its capital stock or otherwise, provided, however, that Cathedral may distribute to one or more of the Sellers, prior to Closing, the ▇▇▇▇▇▇▇ Blvd. Property, conditioned on the assumption of any debt related to the ▇▇▇▇▇▇▇ Blvd. Property by such transferee(s); (vii) directly or indirectly, redeeming, retiring, purchasing or otherwise acquiring any shares of its capital stock or any of its indebtedness for money borrowed in advance of any scheduled repayment date; (viii) except as set forth in this Section 6.3(h);
(i) purchase on SCHEDULE 4.2, making any securities of any Person, except for short-term investments made in the ordinary course of business;
(j) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of business, (ii) any Material Contract (including any Project Financing Document)capital expenditures, or (iii) any Contract involving total consideration throughout its term commitments with respect thereto in excess of $1,000,000 20,000; (exceptix) incurring, in the case of the foregoing clauses (ii) and (iii)assuming or guaranteeing any indebtedness, Contracts entered into in the ordinary course of business, consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing);
(k) waive any claims having a value in excess of $1,000,000, individually or in the aggregate;
(l) make any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter entering into any partnership, joint venture, strategic alliance transactions or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to making any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authorities; or
(t) agree or commit commitment to do any of the foregoing. Notwithstanding foregoing except in the foregoingOrdinary Course of Business or for purposes of consummation of the transactions contemplated by this Agreement and in any case only after consultation with Buyer; (x) canceling, Seller may permit releasing, waiving or compromising any debt, Claim or right in its favor; (xi) altering the Acquired Companies rate or basis of compensation of any of its officers, directors, employees or consultants; and (xii) taking any action or failing to take commercially reasonable actions with respect any action as a result of which any of the other changes or events listed in SECTION 2.12 hereof is likely to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of businessoccur.
Appears in 1 contract
Sources: Stock Purchase Agreement (Resortquest International Inc)
Certain Restrictions. (a) Except as required or permitted hereby, or as consented to by Buyer, or as otherwise set forth in Schedule 6.3Section 6.3 of the Seller Disclosure Schedule, during the Interim Period, Seller will cause the Acquired Companies and the Projects to operate in the ordinary course of business and consistent with past practicepractice and use commercially reasonable efforts to (1) preserve and maintain in all material respects the Acquired Companies’ relationships with customers, suppliers and Governmental Authorities, (2) maintain the Permits, and (3) preserve, maintain and protect the material Assets of the Acquired Companies. Without limiting the foregoing, except (x) as otherwise required or expressly permitted hereby or in order to comply with applicable Law or any Contract, (y) as set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as Section 6.3 of the Effective Date Seller Disclosure Schedule or amended as permitted hereby or (z) as consented to by Buyer, Buyer (which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Lawdelayed), Seller will, during the Interim Period, Seller shall not, and shall cause the Acquired Companies not to, with respect to any Acquired Company or the Project:
(ai) permit or allow create any Encumbrances Lien (other than a Permitted EncumbrancesLien) to be imposed on or against any of the Assets of any of the Acquired Companies or on the Purchased Assets or Equity Interests, except with respect to the Interests as described in Section 3.4;
(bii) except for any Contract entered into, terminated or amended in the ordinary course of business, (A) enter into any Contract which would be a Material Contract if existing on the date hereof, (B) amend or grant any waiver of any material term under, exercise any option under, or give any consent with respect to, condition under any Material Contract, or (C) amend or grant any waiver of any material term or condition under the EPC Contracts, the Siemens Supply Agreement, the BOP Agreements, SCR Supply and Services Agreement, the Siemens Settlement Agreement or the Ethos AFE (subject to the terms and conditions of the SCR Indemnification Agreement); provided, that for purposes of this clause (C), any term or condition related to or comprising a part of the achievement of milestones, including substantial completion, final completion and similar milestones, and any terms or conditions in respect of scheduling of payments or performance, shall be considered material;
(ciii) (A) fail to use commercially reasonable efforts to renew or maintain any Permit, or (B) (x) adversely amend any term or condition under the ACO or (y) fail to use commercially reasonable efforts to schedule the proposed outages under the Peerless Agreement for the dates and for the durations as set forth on Section 6.3(a)(iii) of the Seller Disclosure Schedule (it being understood that the outage schedules are subject to NYISO approval and that NYISO may reject or change approved outage dates in its sole discretion) (provided, that nothing in this Section 6.3(a)(iii) shall limit or be deemed to limit the obligations of Seller set forth in Section 6.21);
(iv) sell, transfer, convey remove, assign, convey, distribute or otherwise dispose of any material Purchased Assets outside the ordinary course of business as of the Effective Date;
(d) of, other than accounts payable incurred in the ordinary course of business in an amount not in excess $50,000 individually or otherwise incurred pursuant to $250,000 in the Material Contracts or short termaggregate, unsecured borrowings or intercompany loans or guarantees any Asset of any of the Acquired Companies, except for any Assets that are paid in full and discharged prior to the Closing, obsolete or no longer required for operations;
(v) incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other PersonIndebtedness;
(evi) except as may be required to meet the requirements of applicable Laws Law or GAAPGAAP (and except with respect to Taxes which shall be governed by Section 6.3(a)(xii)), change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a wholepractice;
(fvii) fail to maintain its existence limited liability company or corporate (as the case may be) existence, merge or consolidate or merge any of the Acquired Companies with any other Person or cause any of the Acquired Companies to acquire all or substantially all of the Assets or any Equity Interests of any other Person;
(gviii) issue issue, reserve for issuance, pledge or otherwise encumber, sell or redeem Equity Securities of any equity ownership interestsof the Acquired Companies;
(iix) commence any casereclassify, proceeding combine, split, subdivide or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for otherwise amend the benefit of its creditors, or take any action in furtherance terms of, or indicating its consent toredeem, approval ofrepurchase or otherwise acquire, directly or acquiescence inindirectly, any of the acts set forth in this Section 6.3(hits outstanding equity securities or debt securities (or securities convertible into, or exercisable or exchangeable for equity securities or debt securities);
(ix) liquidate, dissolve, recapitalize, reorganize or otherwise wind up the business or operations of any of the Acquired Companies;
(xi) amend or modify the Organizational Documents of any of the Acquired Companies;
(xii) make any new, or change any existing, election with respect to Taxes, or settle or compromise any Tax Liability, enter into any closing agreement with respect to any Tax, amend any Tax Return, file any Tax Return in a manner inconsistent with past practice or adopt or change in any respect any method of accounting for Tax purposes, in each case, (1) to the extent such action would reasonably be expected to increase the Liability for Taxes of any Acquired Company with respect to taxable periods after the Effective Date, including the portion of any Straddle Taxable Period occurring after the Effective Date and (2) except as required by applicable Law;
(xiii) purchase any securities Assets involving total consideration in excess of any Person$1,000,000 in the aggregate, except for short-term investments made other than in the ordinary course of business;
(jxiv) enter intoother than with respect to Tax matters (which shall be governed by Section 6.3(a)(xii)), terminate (A) settle or amend discharge any Claim or compromise or settle any liability, in each case in an amount in excess of $100,000 individually or $500,000 in the aggregate, or (B) commence any legal proceeding or arbitration involving claims in excess of $100,000 unless necessary to preserve a right before Closing (such as the expiration of the statutory or contract claim period) or if necessary to comply with a Material Contract covenant (including involving Indebtedness), or in the case of clauses (A) or (B), that could be expected to reasonably adversely affect the business of any Acquired Company after the Closing in any material respect;
(xv) cancel, permit to lapse or expire or materially change coverage under any insurance policy applicable to the Acquired Companies, except for coverages or policies which are no longer available on commercially reasonable terms;
(xvi) (i) hire any Material Permit individual who would be an employee of any Acquired Company or (ii) establish, become obligated under, sponsor or maintain any Employee Benefit Plan;
(xvii) make any loans or advances to any other Person other than the Acquired Companies;
(xviii) (A) fail to use commercially reasonable efforts to make or commit to make any material capital expenditure in the ordinary course of business, (ii) any Material Contract (including any Project Financing Document)business planned as of the date hereof, or (iiiB) make or commit to make any Contract involving total consideration throughout its term in excess of capital expenditure except for capital expenditures not exceeding $1,000,000 (except, in the case of the foregoing clauses (ii) and (iii), Contracts entered into in the ordinary course of business, consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing);
(k) waive any claims having a value in excess of $1,000,000, individually or in the aggregate;
(lxix) make transfer any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practiceAssets to, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with with, any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget Affiliate of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental AuthoritiesSeller; or
(txx) agree authorize any of, or commit or agree to take, whether in writing or otherwise, to do any of of, the foregoing. foregoing actions.
(b) Notwithstanding anything to the foregoingcontrary herein, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of business.. Notwithstanding the foregoing or anything contained herein to the contrary, no emergency situation shall affect or otherwise limit the adjustments to the Purchase Price contained in Section 2.2
Appears in 1 contract
Sources: Purchase and Sale Agreement (Macquarie Infrastructure Corp)
Certain Restrictions. Except as required or permitted herebyotherwise specifically provided in this Agreement, or as otherwise set forth in Schedule 6.3between the date of this Agreement and the subsequent date that Buyer and Parent take control of the Company’s Board of Directors pursuant to Section 2.11 of this Agreement after the closing of Stage 1 of the Contemplated Transaction, during the Interim Period, Seller Sellers will cause the Acquired Companies Company and its subsidiaries to refrain from the Projects following:
(i) amending its articles of incorporation or bylaws (or other comparable corporate charter documents) or taking any action with respect to operate any such amendment or any recapitalization, reorganization, liquidation or dissolution of any such corporation;
(ii) authorizing, issuing, selling or otherwise disposing of any shares of capital stock of or any option, warrant or other right with respect to the capital stock of the Company or its subsidiaries, or modifying or amending any right of any holder of outstanding shares of capital stock of or options with respect to the Company and/or its subsidiaries;
(iii) except for with respect to transfers to and from the Company’s central cash account made in the ordinary course of business business, the Company and consistent with past practice. Without limiting the foregoingits subsidiaries shall not declare, except as set aside or pay any dividend or other distribution, directly or indirectly, nor directly or indirectly redeem, purchase or otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws acquire any capital stock of or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not to:
(a) permit or allow any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets or Interests, except option with respect to the Interests as described in Section 3.4Company or any of its subsidiaries;
(b) grant any waiver of any term under, exercise any option under, or give any consent with respect to, any Material Contract;
(c) sell, transfer, convey or otherwise dispose of any material Purchased Assets outside the ordinary course of business as of the Effective Date;
(div) other than accounts payable incurred in the ordinary course of business business, acquiring or otherwise incurred pursuant disposing of, or incurring any Encumbrance on, any assets and properties;
(v) entering into, amending, modifying, terminating (partially or completely), granting any waiver under or giving any consent with respect to the Material any Contracts or short termIP Licenses that exceed ten thousand dollars (US$10,000) individually, unsecured borrowings or intercompany loans twenty-five thousand dollars (US$25,000) in the aggregate, or guarantees have a term exceeding six months, except for revenue related IP Licenses and other Contracts entered into in the ordinary course of business; provided, however, that are paid the Buyer or Parent must approve in full and discharged writing of each such Contract and/or IP License prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other PersonCompany entering into such Contract and/or IP License;
(evi) except incurring or obtaining a draw on any indebtedness (including any indebtedness from Film Victoria) or (ii) other than as may be required to meet the requirements contemplated by this Agreement, purchasing, canceling, prepaying or otherwise providing for a complete or partial discharge in advance of applicable Laws a scheduled payment date with respect to, or GAAPwaiving any right under, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a wholeindebtedness;
(fvii) fail to maintain its existence or consolidate or merge engaging with any person or entity in any merger or other Person business combination or acquire all sale of assets ;or substantially all of the Assets incurrence of any other PersonEncumbrances;
(gviii) issue making capital expenditures or sell commitments for additions to property, plant or equipment constituting capital assets or entering into any equity ownership interestsoperating lease or other obligation in the aggregate in excess of ten thousand dollars (US$10,000);
(iix) commence except to the extent required by applicable law, making any case, proceeding or other action under any existing or future Debtor Relief Law, seeking material change in (A) to have an order for relief entered with respect to itany pricing, investment, accounting, financial reporting, inventory, credit, allowance or Tax practice or policy, or (B) to adjudicate it as bankrupt or insolventany method of calculating any bad debt, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition contingency or other relief with respect to it reserve for accounting, financial reporting or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this Section 6.3(h)Tax purposes;
(ix) purchase except to the extent required by applicable law, adopting, entering into or becoming bound by any securities material Benefit Plan, employment-related Contract or collective bargaining agreement, or amending, modifying or terminating (partially or completely) any such Benefit Plan, employment-related Contract or collective bargaining agreement;
(xi) making any change in its fiscal year;
(xii) causing or committing the damage, destruction, or loss of (whether or not covered by insurance) any Person, except for short-term investments made property other than dispositions of property in the ordinary course of business;
(jxiii) enter intomaking any loan or cash advance to, terminate any director, officer, or amend employee;
(ixiv) granting any Material Permit increase in the base compensation of any employee, officer, consultant or director;
(xv) making any other than change in employment terms that will be in force on the date of this Agreement or any time thereafter for any director, officer, employee or consultant;
(xvi) initiating any lawsuit or similar grievance except in the ordinary course of business, (ii) any Material Contract (including any Project Financing Document), or (iii) any Contract involving total consideration throughout its term in excess of $1,000,000 (except, in the case of the foregoing clauses (ii) and (iii), Contracts entered into in the ordinary course of business, consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing);
(k) waive any claims having a value in excess of $1,000,000, individually or in the aggregate;
(l) make any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authorities; or
(txvii) agree or commit entering into any Contract to do or engage in any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of business.
Appears in 1 contract
Sources: Stock Purchase and Sale Agreement (Red Mile Entertainment Inc)
Certain Restrictions. Except as required or permitted herebyexpressly provided for in this Agreement, or as otherwise set forth in Schedule 6.3the Operative Agreements, during the Interim PeriodSellers will, Seller and will cause the Acquired Companies and the Projects to operate in the ordinary course of business and consistent with past practice. Without limiting the foregoingtheir respective Transferred Subsidiaries to, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not torefrain from:
(a) permit or allow any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets or Interests, except with respect to the Interests as described in Section 3.4;
(b) grant any waiver of any term under, exercise any option under, or give any consent with respect to, any Material Contract;
(c) sell, transfer, convey or otherwise dispose of any material Purchased Assets outside the ordinary course of business as of the Effective Date;
(d) other than accounts payable incurred in the ordinary course of business or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of any Person, except for short-term investments made in the ordinary course of business;
(j) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of business, (ii) any Material Contract (including any Project Financing Document)acquiring or disposing of, or incurring any Lien (iiiother than a Permitted Lien) on, any Contract involving total consideration throughout its term Assets and Properties used in, of, or related to the Business, other than any disposals pursuant to the Order of the U.S. Bankruptcy Court, dated April 19, 2000 entitled "Order Pursuant to 11 U.S.C. ss.ss. 105 and 363, Approving Procedures to Sell Certain Assets Free ▇▇▇ ▇lear of Liens, Claims and Encumbrances Without Further Court Approval" allowing disposal, on negative notice as provided therein, of certain de minimis asset as provided therein, and the Order of the U.S. Bankruptcy Court, dated April 25, 2001, entitled "Stipulation and Order, Pursuant to 11 U.S.C. ss.ss. 105 and 363, Authorizing and Approving Limited Amendment to Pr▇▇▇ ▇rder, to Establish Procedures to Sell Certain Obsolete or Surplus Equipment Free and Clear of Liens, Claims and Encumbrances, Without Further Court Approval", on the terms and subject to the limitations provided in excess of $1,000,000 (excepteach such Order, in the case a manner consistent with terms and procedures set forth in each such Order;
(b) authorizing, issuing, selling or otherwise disposing of any shares of, or securities convertible into or exchangeable or exercisable for or any Option with respect to any shares of, capital stock or share capital of the foregoing clauses Transferred Subsidiaries, or modifying or amending any right of any holder of outstanding shares of capital stock or share capital of or Option with respect to the Transferred Subsidiaries (iiother than as contemplated by Section 4.05(e) and of Sellers' Disclosure Schedule);
(iiic) amending any Charter Documents of any Transferred Subsidiary or taking any action with respect to any such amendment or any merger, consolidation, recapitalization, reorganization, liquidation or dissolution of any Transferred Subsidiary (other than as contemplated by Section 4.05(e) of Sellers' Disclosure Schedule);
(d) except as disclosed in Section 4.05(d) of Sellers' Disclosure Schedule, Contracts entered into other than in the ordinary course of business, consistent entering into, amending, modifying, terminating (partially or completely), granting any waiver under or giving any consent with past practicerespect to any Business Contract, which will be fully performed prior Real Property Lease, Personal Property Lease, or Business License included in the FTL Assets, whether the contracting party thereto is a Seller or Transferred Subsidiary, if material to Closing and under which the Acquired Companies will have no further obligations or liabilities following Condition of the ClosingBusiness (other than as contemplated by Section 4.05(e) of Sellers' Disclosure Schedule);
(ke) waive any claims having a value in excess of $1,000,000, individually or other than in the aggregateordinary course of business, purchasing, canceling, prepaying or otherwise providing for a complete or partial discharge in advance of a scheduled payment date with respect to, or waiving any right under, any Liability of or owing to any Seller or Transferred Subsidiary in connection with the Business, or settling or compromising any litigation (other than pre-petition claims against Debtors and such litigation that comprises part of the Excluded Assets), in an aggregate principal amount for all such actions exceeding $1,000,000 (other than any contribution or discharge of intercompany indebtedness as contemplated by Section 4.05(e) of Sellers' Disclosure Schedule);
(lf) make declaring, setting aside or paying any material election dividend or other distribution payable in cash, stock or property with respect to Taxesits capital stock or redeeming, repurchasing or otherwise acquiring any shares of its capital stock (other than as contemplated by Section 4.05(e) of Sellers' Disclosure Schedule);
(mg) amend incurring any indebtedness for money borrowed or modify its Organizational Documentsissuing or selling any debt securities or warrants or rights to acquire any debt securities of Sellers or any of the Transferred Subsidiaries other than under Sellers' DIP Facility (other than as contemplated by Section 4.05(e) of Sellers' Disclosure Schedule);
(nh) commence except for normal increases in the ordinary course of business consistent with past practice or settle to reflect promotions or new hires, granting any Claim;
(o) enter into any partnership, joint venture, strategic alliance material increase in the fringe benefits or similar contract or arrangement;
(p) increase the compensation payable or to become payable by Sellers or the benefits provided any Transferred Subsidiary to the Transferrable Project Employees, except any Executive Employee or director thereof;
(i) to the extent required by applicable Law except as disclosed in Schedule 4.05(i) of Sellers' Disclosure Schedule, adopting, amending or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practiceotherwise materially increasing, or (iii) changes in salary accelerating the payment or vesting of the amounts payable or to the extent necessary as determined by become payable to any Executive Employee or director of any Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basisor any Transferred Subsidiary under any existing Benefit Plan, bonus, incentive compensation, deferred compensation, severance, profit sharing, stock option, stock appreciation right, restricted stock purchase, insurance, pension, retirement, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1other employee benefit plan, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Dateagreement or arrangement;
(qj) declare, set aside, make entering into or pay any cash or non-cash dividend or other distribution on or with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter amending in any material respect any capital expenditures existing employment or severance agreement with, or, except in a manner not accordance with the existing written policies of Sellers or existing contracts or agreements, granting any severance or termination pay to any Executive Employee or director of any Seller or any Transferred Subsidiary;
(k) changing the accounting principles used by it in effect as of the date hereof unless required by GAAP;
(l) except for the agreements listed in Section 4.05(l) of Sellers' Disclosure Schedule, entering into or modifying any collective bargaining agreement or any successor collective bargaining agreement to any collective bargaining agreement;
(m) other than in the ordinary course of business consistent with the capital budget of the Acquired Companies provided to Buyer past practice or as the Effective Date, required by law and except as would be consistent with prudent operating practice disclosed in Sections 4.05(e) and directives from ERCOT and (m) of Sellers' Disclosure Schedule, making any Tax election, amending any Tax Return or settling any Tax Liability (other Governmental Authoritiesthan the settlement of any Tax Liability relating to any claim, dispute or other matter set forth in Section 2.12(b) of Sellers' Disclosure Schedule) or making any Tax payments; or
(tn) agree or commit entering into any Contract to do any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of business.
Appears in 1 contract
Sources: Asset Purchase Agreement (Fruit of the Loom Inc /De/)
Certain Restrictions. Except as required or permitted hereby(a) During the Interim Period, or as otherwise set forth the Company shall and shall cause each of its Subsidiaries to operate in Schedule 6.3the ordinary course consistent with past practice, except for the Pre-Closing Restructuring. Without limiting the generality of the foregoing, during the Interim Period, Seller will cause except as set forth in Schedule 6.02(a), the Acquired Companies Pre-Approved Interim Expenditures, Budgeted Operating Project Expenses, debt service costs including interest payments for existing Debt Obligations and letters of credit in existence on the Projects date hereof or otherwise permitted to operate be incurred pursuant to this Section 6.02, the Pre-Closing Restructuring and all matters in connection with the Route 66 Project and Palouse Project sales, the Company shall not and shall not permit any of its Subsidiaries to take any of the following actions without Buyers consent (such consent, in the case of the following clauses (iv), (vii) and (ix), not to be unreasonably withheld, delayed or conditioned); provided that if Buyers fail to respond to any request for consent within ten (10) days, or in the case of Section 6.02(a)(xv) within three (3) days, of such request being made, Buyer shall be deemed to have consented to such request:
(i) amend its or any Company Entity’s Organizational Documents in any material respect or undertaking any recapitalization, reorganization, liquidation, dissolution or winding up;
(ii) make any expenditures, loans or advances, except for those expenditures, loans or advances made in the ordinary course of business business, including any intercompany transactions and consistent with past practice. Without limiting that do not exceed 10% over the foregoing, except as otherwise set forth Pre-Approved Interim Expenditure or Budgeted Operating Project Expenses per Project or $3,000,000 in Schedule 6.3, required the aggregate over the Pre-Approved Interim Expenditure or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, Budgeted Operating Project Expenses;
(iii) the taking dispose of any action otherwise listed below to the extent reasonably required to accomplish properties, or incur any of the Permitted Transactions Liens or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to permit any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not to:
(a) permit or allow any Encumbrances (other than Permitted Encumbrances) Liens to be imposed on any property, other than (A) Permitted Liens and Liens to support letters of credit or against any of the Purchased Assets Debt Obligations permitted under Section 6.02(c), (B) pursuant to existing Contracts or Interestscommitments, except (C) with respect to Operating Entities, dispositions in connection with ordinary course operations and maintenance (D) with respect to the Interests as described Earnout Projects, dispositions in Section 3.4connection with ordinary course construction (E) with respect to Platform Entities (other than Earnout Projects), ordinary course dispositions with a value less than $1,000,000 in the aggregate or (F) other than any transfer between two Company Entities;
(biv) grant enter into any waiver of Contract that would be a Company Contract if in existence on the date hereof or materially amend, materially modify or terminate (partially or completely) any term underCompany Contract, exercise any option under, or give any consent with respect to, any Material Contract;
(c) sell, transfer, convey or otherwise dispose of any material Purchased Assets outside the ordinary course of business as of the Effective Date;
(d) other than accounts payable incurred in the ordinary course of business or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) ordinary course purchase or work orders or similar instruments, (B) renewals or extensions of Company Contracts in accordance with the terms thereof, (C) amendments that are not adverse to have an order for relief entered any Company Entity, (D) with respect to it, Contracts evidencing Debt Obligations permitted by Section 6.02(c) or (BE) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of any Person, except for short-term investments made in the ordinary course of business;
(jv) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of business, (ii) any Material Contract (including any Project Financing Document), or (iii) any Contract involving total consideration throughout its term in excess of $1,000,000 (except, in the case of the foregoing clauses (ii) and (iii), Contracts entered into in the ordinary course of business, consistent with past practice, which will be fully performed prior subject to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing);
(k) waive any claims having a value in excess of $1,000,000, individually or in the aggregate;
(l) make any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authorities; or
(t) agree or commit to do any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of business.6.02
Appears in 1 contract
Sources: Purchase and Sale Agreement
Certain Restrictions. Except as required or permitted hereby, or as otherwise set forth in Schedule 6.3Without limiting the generality of Section 7.3, during the Interim Period, Seller will cause the Acquired Companies and the Projects to operate in the ordinary course of business and consistent with past practice. Without limiting the foregoing, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws the other terms of this Agreement, any Permit or any Material Contract in effect as of the Effective Date or amended as permitted hereby Contract, or as otherwise described in Schedule 7.4, or consented to or approved in writing by Buyer, which consent shall or approval will not be unreasonably withheld, conditioned or delayed delayed, Sellers shall cause the Project Companies to, and the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall cause the ▇▇▇▇▇▇ Acquired Companies to, and in the case of (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Itemsa), (ii) the termination or assignment of Excluded Contractsb), (iiic), (d), (f) the taking of any action otherwise listed and (o) below (as (o) applies to the extent reasonably required to accomplish any of the Permitted Transactions or (ivimmediately preceding section references) the termination of the services contemplated by Section 6.8each Seller shall, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not tonot:
(a) permit or allow create any Encumbrances Lien (other than a Permitted EncumbrancesLien or any Lien the release of which Sellers or the applicable Project Company is pursuing by commercially reasonable efforts) to be imposed on or against any of the Purchased material Assets or Interests, except with respect to of the Interests as described in Section 3.4Acquired Companies;
(b) grant any material waiver of any material term under, exercise any option under, or give any material consent with respect to, any Material ContractContract other than in the ordinary course of business;
(c) sell, transfer, convey or otherwise dispose of any material Purchased Assets outside the ordinary course of business as of the Effective Date;
(d) Acquired Companies other than accounts payable incurred in the ordinary course of business or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Personbusiness;
(ed) except as may be required to meet the requirements of any applicable Laws Law or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material materially and adverse impact on adversely affect the Acquired Companies, taken as a whole;
(fe) fail to maintain its existence or limited liability company existence, consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(gf) issue issue, sell, pledge, or sell otherwise encumber or dispose of any equity ownership interestsinterests in any Acquired Companies;
(ig) commence any caseliquidate, proceeding dissolve, recapitalize, reorganize or other action under any existing otherwise wind up its business or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this Section 6.3(h)operations;
(ih) purchase any securities of any Person, except for short-term investments made in the ordinary course of business;
(ji) enter into, terminate or materially amend (i) any Material Permit other than in the ordinary course of business, (ii) any Material Contract (including any Project Financing Document), or (iii) any Contract involving total consideration throughout its term in excess of $1,000,000 5,000,000 (exceptincluding, without limitation, that certain Agreement between SourceGas Distribution LLC and Communications Workers of America AFL-CIO May 1, 2013 to April 30, 2016, as amended, but excluding (i) any Contract (A) that will be fully performed prior to Closing, (B) described in the case item 2 of the foregoing clauses Schedule 7.4, or (iiC) and (iii)entered into, Contracts entered into terminated or amended in the ordinary course of business) and (ii) any renewal or extension described in item 1 of Schedule 7.4. Notwithstanding the foregoing, neither Seller will, nor will either Seller permit or cause any Acquired Company to, amend, extend, replace or refinance that certain Term Loan Credit Agreement between SourceGas LLC, the lenders described therein, and JPMorgan Chase Bank, N.A., in its capacity as Administrative Agent, and all documents, instruments and agreements related thereto (the “Term Loan”), without Buyer’s prior written consent, such consent not to be unreasonably withheld, conditioned, or delayed, except that the Project Companies may, without any such consent, extend the maturity of the Term Loan, or refinance the Term Loan with the same or another lender group, in each case, to a date not later than July 15, 2017 on terms that are substantially similar to the current Term Loan (it being understood that any such extension or refinancing may be subject to interest rates that differ from those in the current Term Loan);
(j) change or modify credit, collection or payment policies, procedures or practices of any Acquired Company, including acceleration or collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(k) except (A) in the ordinary course of business consistent with past practice, (B) as required pursuant to the terms of any Project Companies Benefit Plan, collective bargaining agreement or other written agreement in each case as in effect on the date of this Agreement, (C) as required to comply with applicable Law, (D) as permitted by this Agreement, or (E) with respect to bonus and incentive payments or opportunities, the cost of which will be fully performed prior borne by Sellers (directly, as a downward adjustment to Closing and the Purchase Price, pursuant to Section 7.7, or otherwise), (1) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Project Companies Benefit Plan or (2) take any action to accelerate any rights or benefits, or make any material determinations, under which the Acquired any Project Companies will have no further obligations or liabilities following the Closing);
(k) waive any claims having a value in excess of $1,000,000, individually or in the aggregateBenefit Plan;
(l) make institute, settle or agree to settle any material litigation, suit, action, arbitration, audit, investigation, proceeding, or other claim pending or threatened before any arbitrator, court or other Governmental Authority the outcome of which has or would be reasonably likely to have the effect of restricting or impairing to any material extent any business practice or the conduct of business of any Acquired Company;
(m) change any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter modify in any material respect any capital expenditures in a manner not consistent with the capital budget Charter Documents of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental AuthoritiesCompanies; or
(to) agree or commit to do any of the foregoing. Notwithstanding ; provided, that Sellers shall not be required to refrain from taking or approving the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice taking of any such actions, promptly inform Buyer action (x) required by any Acquired Company to comply with legal or contractual obligations or (y) in the case of any such actions taken outside the ordinary course of businessan emergency.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Black Hills Corp /Sd/)
Certain Restrictions. Except as required or permitted herebythe Purchasers may specifically authorize in writing, or as otherwise set forth in Schedule 6.3, during the Interim Period, Seller Sellers will cause the Acquired Companies and the Projects to operate in the ordinary course of business and consistent with past practice. Without limiting the foregoing, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies BPP not to:
(a) permit (i) declare, set aside for payment or allow make any Encumbrances distributions (other than Permitted Encumbrancesin cash) to be imposed on or against any of the Purchased Assets or Interests, except with respect to any of its partnership interests; (ii) redeem, purchase or otherwise acquire any of its partnership interests or any rights, warrants or options for, or securities convertible into, partnership interests; or (iii) split, combine or reclassify any of its partnership interests or issue or authorize the Interests as described issuance of, or grant any registration rights with respect to, any partnership interests in Section 3.4lieu of or in substitution for any of its partnership interests;
(b) grant issue, deliver, sell, pledge, dispose of or otherwise subject to any waiver Lien any of its partnership interests, any term under, exercise other voting securities or equity equivalent or any option undersecurities convertible into, or give any consent with respect torights, warrants or options to acquire, any Material Contractsuch partnership interests, voting securities or convertible securities or equity equivalent;
(c) incur, permit or allow any Lien on any of its Assets and Properties, other than Liens existing on the date hereof, Permitted Liens or Liens in connection with the BPP Restructuring;
(d) incur or create any indebtedness or obligation, or assume or guarantee (whether by way of guarantee, endorsement, indemnity, warranty or otherwise) any indebtedness or obligation of any other Person other than in connection with the BPP Restructuring;
(e) sell, convey, transfer, convey lease or otherwise dispose of any material Purchased Assets outside and Properties, except in the ordinary course of business as of the Effective Dateconsistent with past practice;
(df) incur any material liabilities or obligations which would be required by GAAP to be shown on its balance sheet or the footnotes thereto, other than accounts payable in connection with the BPP Restructuring or the Sierra Settlement, if applicable;
(g) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in, or acquiring by any other manner, any business or any corporation, partnership, association or other Person, other than in connection with the BPP Restructuring;
(h) alter through merger, liquidation, reorganization, restructuring or in any other fashion its legal nature or ownership;
(i) change its partnership agreement or any other organizational documents;
(j) change its accounting methods or practices (including any change in depreciation or amortization policies, or rates thereof);
(k) revalue any of its assets, make any Tax election, change any annual Tax accounting period, amend any Tax Return, enter into any closing agreement, settle any Tax claim or assessment, surrender any right to claim a Tax refund or fail to make the payments or consent to an extension or waiver of the limitations period applicable to any Tax claim or assessment;
(l) pay, discharge or satisfy any obligation or liability other than the payment, discharge or satisfaction in the ordinary course of business consistent with past practice of obligations or liabilities reflected or reserved against in, or contemplated by, the Financial Statements (or notes thereto) or incurred in the ordinary course of business or otherwise incurred pursuant to consistent with past practice, and other than in connection with the Material Contracts or short termBPP Restructuring and the Sierra Settlement, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Personif applicable;
(em) except as may be required enter into, amend or modify in any material way, terminate (partially or completely), grant any waiver of any material term under, or give any material consent with respect to meet any Material Contract, Environmental Permit or License related to the requirements ownership and operation of applicable Laws the Facility or GAAPany other aspect of the business of BPP or any other Contract, change if any accounting method or practice of such actions with respect to such other Contracts would result in a manner that is inconsistent Material Adverse Effect, other than in connection with past practice in a way that would reasonably be expected to have a material the BPP Restructuring and adverse impact on the Acquired Companies, taken as a wholeSierra Settlement if applicable;
(fn) fail enter into any understanding or any Contract to maintain its existence do or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to itengage in, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence which could result in, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of any Person, except for short-term investments made in the ordinary course of business;
(j) enter into, terminate or amend (i) any Material Permit foregoing other than in the ordinary course of business, (ii) any Material Contract (including any Project Financing Document), or (iii) any Contract involving total consideration throughout its term in excess of $1,000,000 (except, in the case of the foregoing clauses (ii) and (iii), Contracts entered into in the ordinary course of business, consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing);
(k) waive any claims having a value in excess of $1,000,000, individually or in the aggregate;
(l) make any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent connection with the capital budget of BPP Restructuring and the Acquired Companies provided to Buyer as the Effective DateSierra Settlement, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authorities; or
(t) agree or commit to do any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of businessif applicable.
Appears in 1 contract
Certain Restrictions. Except as required or permitted hereby, or as otherwise set forth in Schedule 6.3, during During the Interim Period, Seller will cause the Acquired Companies and the Projects to operate in the ordinary course of business and consistent with past practice. Without limiting the foregoing, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws the other terms of this Agreement, or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to in writing by Buyer▇▇▇▇▇, which consent Sellers shall not, and shall cause the Company not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish take any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not tofollowing actions:
(a) permit Sell, lease, transfer, pledge or allow any Encumbrances (other than Permitted Encumbrances) to be imposed on or against otherwise dispose of any of the Purchased Interests or any assets of the Business or place any Liens or encumbrances thereon; provided, however, that Sellers and the Company shall not be prohibited from selling and/or otherwise disposing of the MIP License and/or the MIP Assets or Interestsand, except with respect thereafter, distributing any proceeds of sale (if any) to the Interests as described in Section 3.4Sellers prior to Closing;
(b) grant Issue any waiver of any term under, exercise any option under, or give any consent with respect to, any Material Contractnew Interests;
(c) sell, transfer, convey or otherwise dispose of Fail to maintain in full force and effect any material Purchased Assets outside the ordinary course of business as of the Effective DateLicenses;
(d) other than accounts payable incurred in the ordinary course of business or otherwise incurred pursuant Fail to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue perform obligations under any debt securities or assume or guarantee the obligations of any other PersonContracts;
(e) Increase the salary or compensation or benefits of any employee or contractor, except as may be required to meet in the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent ordinary course consistent with past practice in a way that would reasonably be expected practice, and provided ▇▇▇▇▇▇▇ delivers written notice to have a material and adverse impact on the Acquired Companies, taken as a wholeBuyer of same;
(f) fail to maintain its existence or consolidate or merge with Incur any other Person or acquire all or substantially all liabilities of the Assets of any other Person;
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of any Person, except for short-term investments made in the ordinary course of business;
(j) enter into, terminate or amend (i) any Material Permit Sellers other than in the ordinary course of business, .
(iig) any Material Contract (including any Project Financing Document), or (iii) any Contract involving total consideration throughout its term Make capital expenditures in excess of $1,000,000 15,000;
(excepth) Invest in or make any loans to any person or entity in excess of $15,000;
(i) Dissolve the Company or file or declare bankruptcy, insolvency or similar action;
(j) Operate the Business or any assets thereof, in the case of the foregoing clauses (ii) and (iii), Contracts entered into any way other than in the ordinary course of business, business consistent with past practicepractices; provided, which will however, that Sellers and the Company shall not be fully performed prohibited from selling and/or otherwise disposing of the MIP License and/or the MIP Assets and, thereafter, distributing any proceeds of sale (if any) to the Sellers prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing);
(k) waive Sell the Business or any claims having a value in excess assets thereof outside of $1,000,000the ordinary course of business; provided, individually or in however, that Sellers and the aggregateCompany shall not be prohibited from selling and/or otherwise disposing of the MIP License and/or the MIP Assets and, thereafter, distributing any proceeds of sale (if any) to the Sellers prior to Closing;
(l) make Enter into or materially amend any material election with respect to Taxes;Contract, lease or other arrangement; or
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter Enter into any partnershipagreement, joint venturecommitment or understanding, strategic alliance whether in writing or similar contract or arrangement;
(p) increase the compensation payable or not, to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authorities; or
(t) agree or commit to do take any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such above actions, promptly inform Buyer of any such actions taken outside the ordinary course of business.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (TREES Corp (Colorado))
Certain Restrictions. Except as required or permitted hereby, or as otherwise set forth in Schedule 6.3, during the Interim Period, Seller will cause the Acquired Companies Company and the Projects Subsidiaries to operate in the ordinary course of business and consistent with past practice. Without limiting the foregoing, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not torefrain from:
(a) permit amending their certificates or allow articles of incorporation or by-laws (or other comparable corporate charter documents) or taking any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets or Interests, except action with respect to the Interests as described in Section 3.4any such amendment or any recapitalization, reorganization, liquidation or dissolution of any such corporation;
(b) grant any waiver authorizing, issuing, selling or otherwise disposing of any term under, exercise shares of capital stock of or any option underOption with respect to the Company or any Subsidiary, or give modifying or amending any consent right of any holder of outstanding shares of capital stock of or Option with respect to, to the Company or any Material ContractSubsidiary;
(c) selldeclaring, transfersetting aside or paying any dividend or other distribution in respect of the capital stock of the Company or any Subsidiary not wholly owned by the Company, convey or directly or indirectly redeeming, purchasing or otherwise dispose acquiring any capital stock of or any material Purchased Assets outside Option with respect to the ordinary course of business as of Company or any Subsidiary not wholly owned by the Effective DateCompany;
(d) other than accounts payable incurred in the ordinary course of business acquiring or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance disposing of, or indicating its consent to, approval of, or acquiescence inincurring any Lien on, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of any PersonAssets and Properties, except for short-term investments made in the ordinary course of business;
(j) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of businessbusiness consistent with past practice;
(i) entering into, amending, modifying, terminating (partially or completely), granting any waiver under or giving any consent with respect to (A) any Contract that would, if in existence on the date of this Agreement, be required to be disclosed in the Disclosure Schedule pursuant to SECTION 2.19(a) or (B) any material License or (ii) granting any Material irrevocable powers of attorney;
(f) violating, breaching or defaulting under in any material respect, or taking or failing to take any action that (with or without notice or lapse of time or both) would constitute a material violation or breach of, or default under, any term or provision of any License held or used by the Company or any Subsidiary or any Contract to which the Company or any Subsidiary is a party or by which any of their respective Assets and Properties is bound;
(including i) incurring Indebtedness in an aggregate principal amount exceeding $56,000,000 through July 31, 2000 and $58,000,000 thereafter (net of any Project Financing Documentamounts of Indebtedness discharged during such period), or (iiiii) voluntarily purchasing, canceling, prepaying or otherwise providing for a complete or partial discharge in advance of a scheduled payment date with respect to, or waiving any Contract involving total consideration throughout its term right of the Company or any Subsidiary under, any Indebtedness of or owing to the Company or any Subsidiary;
(h) engaging with any Person in excess of any merger or other business combination;
(i) making capital expenditures or commitments for additions to property, plant or equipment constituting capital assets in an aggregate amount exceeding $1,000,000 50,000;
(except, j) making any change in the case lines of the foregoing clauses (ii) and (iii), Contracts entered into business in the ordinary course of business, consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations they participate or liabilities following the Closing)are engaged;
(k) waive any claims having a value in excess of $1,000,000, individually writing off or in the aggregate;
(l) make any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to writing down any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice their Assets and directives from ERCOT and other Governmental Authorities; or
(t) agree or commit to do any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken Properties outside the ordinary course of businessbusiness consistent with past practice; or
(l) entering into any Contract to do or engage in any of the foregoing.
Appears in 1 contract
Sources: Stock Purchase Agreement (Steinway Musical Instruments Inc)
Certain Restrictions. Except as required or permitted hereby, or as otherwise set forth in Schedule 6.3, during the Interim Period, Seller will cause the Acquired Companies Company and its subsidiaries to, and -------------------- each of the Projects Company and its subsidiaries will, refrain from:
(a) amending its certificate of incorporation or articles of association (or other comparable corporate charter documents) or taking any action with respect to operate any such amendment or any recapitalization, reorganization, liquidation or dissolution of any such company;
(b) authorizing, issuing, selling or otherwise disposing of any shares of capital stock of or any Option with respect to the Company or any subsidiary, or modifying or amending any right of any holder of outstanding shares of capital stock of or Option with respect to the Company or any subsidiary;
(c) (i) declaring, setting aside or paying any dividend or other distribution in respect of the capital stock of the Company or its subsidiaries (other than distributions made in respect of capital stock held exclusively by the Company), or (ii) directly or indirectly redeeming, purchasing or otherwise acquiring any capital stock of or any Option with respect to the Company or its subsidiaries (other than any capital stock or Option held exclusively by the Company);
(d) acquiring or disposing of, or incurring any Lien (other than a Permitted Lien) on, any Assets and Properties of the Company or its subsidiaries, other than in the ordinary course of business and consistent with past practice. Without limiting the foregoing, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not to:
(a) permit or allow any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets or Interests, except with respect to the Interests as described in Section 3.4;
(b) grant any waiver of any term under, exercise any option under, or give any consent with respect to, any Material Contract;
(c) sell, transfer, convey or otherwise dispose of any material Purchased Assets outside the ordinary course of business as of the Effective Date;
(d) other than accounts payable incurred in the ordinary course of business or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person;
(e) except as may (i) entering into, amending, modifying, terminating (partially or completely), granting any waiver under or giving any consent with respect to (A) any Contract that would, if in existence on the date of this Agreement, be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of any Person, except for short-term investments made disclosed in the ordinary course of business;
(j) enter intoDisclosure Schedule pursuant to Section 2.17(a), terminate or amend (i) any Material Permit other than in the ordinary course of business, or (B) --------------- any material License or (ii) granting any Material Contract irrevocable powers of attorney;
(including f) violating, breaching or defaulting under in any Project Financing Document)material respect, or taking or failing to take any action that (iiiwith or without notice or lapse of time or both) would constitute a material violation or breach of, or default under, any term or provision of any material License held or used by the Company or its subsidiaries or any Contract involving total consideration throughout to which the Company or any subsidiary of the Company is a party or by which any of its term respective Assets and Properties is bound;
(g) incurring material Indebtedness;
(h) engaging with any Person in excess any merger or other business combination;
(i) except as required pursuant to Section 4.04, making capital expenditures or ------------ commitments for additions to property or equipment constituting capital assets in an aggregate amount exceeding US$250,000 without the prior written consent of $1,000,000 Purchaser (except, which consent shall not be unreasonably withheld);
(j) making any material change in the case lines of the foregoing clauses (ii) and (iii), Contracts entered into business in the ordinary course of business, consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations it participates or liabilities following the Closing)is engaged;
(k) waive any claims having a value in excess of $1,000,000selling, individually disposing of, writing off or in the aggregate;
(l) make any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to writing down any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice Assets and directives from ERCOT and other Governmental Authorities; or
(t) agree or commit to do any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken Properties outside the ordinary course of businessbusiness consistent with past practice; or
(l) entering into any Contract to do or engage in any of the foregoing.
Appears in 1 contract
Sources: Stock Purchase Agreement (Sun International Hotels LTD)
Certain Restrictions. Except as required Unless otherwise consented to in writing by Atmos or expressly permitted herebyin the Disclosure Schedule, or as otherwise set forth in Schedule 6.3, during the Interim Period, Seller Shareholders will cause the Acquired Companies Company and the Projects Subsidiaries to operate refrain from:
(a) amending the certificates or articles of incorporation or bylaws (or other comparable corporate charter documents) of the Company and the Subsidiaries or taking any action with respect to any such amendment or any recapitalization, reorganization, liquidation or dissolution of the Company and the Subsidiaries;
(b) authorizing, issuing, selling or otherwise disposing of any shares of capital stock of or any Option with respect to the Company or any Subsidiary, or modifying or amending any right of any holder of outstanding shares of capital stock of or Option with respect to the Company or any Subsidiary;
(c) (i) declaring, setting aside or paying any dividend or other distribution in respect of the capital stock of the Company or any Subsidiary not wholly owned, directly or indirectly, by the Company, or (ii) directly or indirectly redeeming, purchasing or otherwise acquiring any capital stock of or any Option with respect to the Company or any Subsidiary not wholly owned, directly or indirectly, by the Company; provided that the Company may continue to pay quarterly cash dividends (which dividends are payable in arrears following the end of each fiscal quarter) consistent with past practice at the rate of $500,000 with respect to each fiscal quarter (or with respect to the Company's first fiscal quarter, $700,000);
(d) acquiring or disposing of, or incurring any Lien (other than a Permitted Lien) on, any material Assets and Properties, other than (i) as contemplated by the Budget or (ii) in the ordinary course of business and consistent with past practice. Without limiting the foregoing, except as otherwise set forth practices provided Atmos has consented thereto in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyerwriting, which consent shall not be unreasonably withheld, conditioned withheld or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent delayed; provided that the requirement of such consent would reasonably be expected Company may continue to violate any applicable Law)conduct negotiations in connection with, Seller will, during the Interim Period, cause the Acquired Companies not to:
(a) permit or allow any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets or Interests, except with respect to the Interests as described in Section 3.4;
(b) grant any waiver of any term under, exercise any option under, or give any consent enter into agreements with respect to, any Material Contract;
and proceed with construction of, a pipeline intended to expand the Company's supply capabilities into the Tupelo, Mississippi market, so long as all expenditures in connection with such pipeline do not exceed $20,000,000 in the aggregate for the life of the project (cthe "Tupelo Pipeline") sell, transfer, convey or otherwise and are consistent with the Company's original estimates of capital expenditures for the project previously provided to Atmos; and provided further that the Company may dispose of its one-third interest in a King Air twin-engine turboprop C90 airplane, whether in the form of a dividend to shareholders or any other means, on terms customary therefor that are not adverse to the Company in any material Purchased Assets outside the ordinary course of business as respect, and regardless of the Effective Date;
(d) other than accounts payable incurred in the ordinary course of business or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Personconsideration received therefor;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of any Person, except for short-term investments made in the ordinary course of business;
(j) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of businessbusiness consistent with past practice, entering into, amending, modifying, terminating (partially or completely), granting any waiver under or giving any consent with respect to any material Contract or License; provided (i) that the Company and the Subsidiaries may enter into, modify, amend or terminate any material Contract or License relating to gas supply, pipeline transportation and storage as long as (A) such Contract or License (1) with respect to gas supply, ensures a reasonably adequate supply of gas for ongoing operations on commercially reasonable terms, (2) with respect to transportation, ensures that the Company will have a reasonably proper amount of transportation capacity on commercially reasonable terms, and (3) with respect to storage, provides that the Company's gas storage facilities are supplied with a reasonable amount of gas on commercially reasonable terms, considering the time of year such facilities are to be utilized, and (B) such Contract or License does not result in the Company having outstanding hedge positions at any time that are speculative or inconsistent with (1) any applicable MPSC order in effect or (2) any existing Company policy, and (ii) the Company may enter into Contracts with blanket contractors and construction contractors to the extent required to effect the capital expenditures contemplated by the Budget consistent with past practice; provided further that the Company and the Subsidiaries may not enter into any Material such Contract or License for a term greater than one year or extend the term of any such Contract or License for more than one year;
(including f) (i) voluntarily incurring Indebtedness; provided that the Company and the Subsidiaries may incur Indebtedness that does not provide for any Project Financing Document), or prepayment penalty and which is incurred (iiiA) any Contract involving total consideration throughout its term in excess of $1,000,000 (except, in the case of the foregoing clauses (ii) and (iii), Contracts entered into in the ordinary course of businessbusiness consistent with past practice to finance working capital, or (B) as reasonably required to finance the expenditures contemplated by the Budget, including all expenditures in connection with the Tupelo Pipeline or (ii) other than in the ordinary course of business consistent with past practice, which will be fully performed prior purchasing, canceling, prepaying or otherwise providing for a complete or partial discharge in advance of a scheduled payment date with respect to, or waiving any right under, any Indebtedness in an aggregate principal amount exceeding $100,000 (in either case other than Indebtedness of the Company or a Subsidiary owing to Closing and under which the Acquired Companies will have no further obligations Company or liabilities following the Closinga wholly-owned Subsidiary);
(kg) waive engaging with any claims having a value Person in excess of any merger or other business combination;
(h) other than as contemplated by the Budget, making capital expenditures or commitments for additions to property, plant or equipment constituting capital assets in an aggregate amount exceeding $1,000,000, individually except as may be required by Law or deemed necessary in the aggregateexercise of Good Utility Practice;
(l) make any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) except to the extent required by applicable Law or by a Governmental AuthorityGAAP, making any material change in (iiA) for normal merit and cost of living increases consistent with past practiceany pricing, investment, accounting, financial reporting, inventory, credit, allowance or Tax practice or policy, or (iiiB) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basisany method of calculating any bad debt, contingency or (iv) changes to any Plant Employee’s Benefit Plan effective January 1other reserve for accounting, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Datefinancial reporting or Tax purposes;
(qj) declare, set aside, make or pay making any cash or non-cash dividend or other distribution on or with respect to any of change in its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement)fiscal year;
(rk) engaging in any activities which would cause a change in its status, or that of its Subsidiaries, under PUHCA, including any action or inaction that would cause the prior approval of the SEC under PUHCA to be required for the consummation of the transactions contemplated hereby;
(l) enter into any Contract with new line of business or expand any Related Partyimmaterial line of business as of the date hereof beyond the activities required by Contracts in existence as of the date hereof;
(sm) delay, defer, reduce agreeing or otherwise alter in consenting to any material respect agreements or modifications of material existing agreements with any capital expenditures in a manner not consistent Government or Regulatory Authority, including its rate agreement with the capital budget MPSC (including its allowed rate of return, purchased gas adjustments or weather normalization adjustments), in respect of the Acquired Companies provided operations of their businesses, it being acknowledged and agreed that the Company's allowed rate of return, which is determined using an agreed-upon formula, may fluctuate as a result of the application of such formula;
(n) other than a settlement with respect to Buyer the Clarksdale Lawsuit in an amount not to exceed the Clarksdale Settlement Amount and on non-monetary terms that could not be reasonably expected to be materially adverse to the Company, settling any Action or Proceeding, or any claim that might give rise to any Action or Proceeding, except to the extent such settlements are covered by insurance (less a deductible not exceeding $250,000 as to any occurrence (within the Effective meaning of the applicable insurance policy)) and on terms that could not be reasonably expected to be materially adverse to the continuing insurance coverage and risk management strategy of the Company and the Subsidiaries;
(o) taking any action that is reasonably expected to cause the representations and warranties of the Shareholders in Article IV not to be true and correct on and as of the Closing Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authoritiesexpressly contemplated by any of the foregoing; or
(tp) agree or commit entering into any Contract to do or engage in any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of business.
Appears in 1 contract
Sources: Merger Agreement (Atmos Energy Corp)
Certain Restrictions. Except as required or permitted hereby, or as otherwise (a) Notwithstanding anything to the contrary -------------------- set forth herein, no Stockholder or Transferee shall directly or indirectly sell, assign, pledge, encumber, hypothecate or otherwise transfer any Shares, unless any such sale, assignment, pledge, encumbrance, hypothecation or other transfer shall have been effected in Schedule 6.3accordance with the terms of this Agreement.
(b) No Stockholder shall sell, during the Interim Periodassign, Seller will cause the Acquired Companies and the Projects to operate in the ordinary course pledge, encumber, hypothecate or otherwise transfer any Shares at any time if such action would constitute a violation of business and consistent with past practice. Without limiting the foregoing, except as otherwise set forth in Schedule 6.3, required any federal or permitted hereby state securities or required by applicable Laws blue sky laws or any Material Contract in effect as a breach of the Effective Date conditions to any exemption from registration of Shares under any such laws or amended as permitted hereby a breach of any undertaking or as consented agreement of such Stockholder entered into pursuant to such laws or in connection with obtaining an exemption thereunder. Each Stockholder agrees that any Shares to be purchased by Buyer, which consent such Stockholder shall not be unreasonably withheld, conditioned bear appropriate legends restricting the sale or delayed (except that this Section 6.3 shall not restrict (i) the other transfer of Excluded Items, such stock in accordance with applicable federal and state securities or blue sky laws.
(iic) Except for the termination or assignment of Excluded Contracts, (iii) proxies granted by the taking of any action otherwise listed below Management Investors to the extent reasonably required to accomplish any Representatives of the Permitted Transactions Management Investors pursuant to this Agreement or (iv) the termination proxies granted to Saratoga by holders of the services contemplated Senior Convertible Preferred Shares and shares of voting common stock issued upon conversion thereof, no Stockholder shall grant any proxy or enter into or agree to be bound by Section 6.8, and no consent of Buyer will be required any voting trust with respect to any matter set forth in this Section 6.3 Shares nor shall any Stockholder enter into any stockholder agreements or elsewhere in arrangements of any kind with any person with respect to any Shares inconsistent with the provisions of this Agreement (whether or not such agreements and arrangements are with other Stockholders or holders of Shares who are not parties to the extent that the requirement of such consent would reasonably be expected to violate any applicable Lawthis Agreement), Seller will, during the Interim Period, cause the Acquired Companies not to:
(a) permit including agreements or allow any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets or Interests, except arrangements with respect to the Interests as described in Section 3.4;
acquisition, disposition or voting (bif applicable) grant any waiver of any term underShares, exercise nor shall any option underStockholder act, for any reason, as a member of a group or give in concert with any consent other persons in connection with respect tothe acquisition, any Material Contract;
disposition or voting (cif applicable) sell, transfer, convey or otherwise dispose of any material Purchased Assets outside Shares in any manner which is inconsistent with the ordinary course provisions of business as of the Effective Date;this Agreement.
(d) None of the restrictions contained in this Agreement with respect to transfers of Shares (other than accounts payable incurred those set forth in Sections 3.1, 3.2(a) and 3.2(b)) shall apply, with respect to a corporate or partnership Stockholder, to transfers of Shares to any affiliate (as such term is defined in Rule 12b-2 under the ordinary course Securities Exchange Act of business or otherwise incurred pursuant 1934, as amended (the "Exchange Act")) thereof (an "Affiliate"). Any such Affiliate Transferee shall be considered a "Permitted Transferee" for purposes of this Agreement. Such Affiliate Transferee shall agree that it will not cease to the Material Contracts or short termbe an Affiliate of such transferor Stockholder unless, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to ceasing to be such an Affiliate, such Affiliate Transferee transfers to such Stockholder or an Affiliate thereof all the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person;Shares owned by it.
(e) except A Stockholder shall be entitled to pledge such Stockholder's Shares to an Affiliate of such Stockholder or to a commercial bank, savings and loan institution or any other lending institution as may security for any indebtedness of such Stockholder or the Company to such lender; provided that, -------- prior to any such pledge, the pledgee shall deliver to the Company its written agreement, in form and substance satisfactory to the Company, that such pledgee shall agree to be required bound by all the terms of this Agreement with respect to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;Shares so pledged.
(f) fail The provisions of Section 3.3 of this Agreement shall not apply to maintain its existence or consolidate or merge transfers of Shares by any Transferee unaffiliated with any Stockholder, which Shares were acquired pursuant to the terms of this Agreement from a Stockholder or from a subsequent Transferee of such Stockholder; provided that -------- any such Transferee (if such Transferee is or is required to become a party to this Agreement) agrees to take such Shares, and any transfer of such Shares by such Transferee shall be, subject to all the other Person or acquire all or substantially all provisions of the Assets of any other Person;this Agreement.
(g) issue or sell The provisions of Section 3.3 of this Agreement shall not apply to transfers of Shares by a Management Investor to any equity ownership interests;employee of the Company; provided that any such purchaser of Shares agrees to take such Shares subject to -------- all of the other provisions of this Agreement.
(ih) commence The provisions of Sections 3.1 and 3.3 of this Agreement shall not apply to any casetransfer of Shares by a Management Investor to the Management Investor and his/her spouse jointly; provided, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have that the spouse acquiring an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of any Person, except for short-term investments made -------- interest in the ordinary course Shares shall agree to be bound by the provisions of business;
(j) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of business, (ii) any Material Contract (including any Project Financing Document), or (iii) any Contract involving total consideration throughout its term in excess of $1,000,000 (except, in the case of the foregoing clauses (ii) and (iii), Contracts entered into in the ordinary course of business, consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing);
(k) waive any claims having a value in excess of $1,000,000, individually or in the aggregate;
(l) make any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing this Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authorities; or
(t) agree or commit to do any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of business.
Appears in 1 contract
Certain Restrictions. Except as required or permitted herebydisclosed on Section 6.07 of the Disclosure Schedule, or as otherwise set forth in Schedule 6.3, during the Interim Period, such Seller will cause the Acquired Companies and the Projects to operate in the ordinary course of business and consistent with past practice. Without limiting the foregoing, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8refrain from, and no consent will cause each of Buyer will be required with respect its Business Subsidiaries to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not torefrain from:
(a) permit acquiring or allow disposing of any Encumbrances Assets and Properties used or held for use in primarily the conduct of the Business with a consideration of greater than US $1,000,000 for acquisitions, and for dispositions, $500,000 in the aggregate and $50,000 individually (other than Permitted Encumbrances) in the Ordinary Course, as contemplated by a Seller’s or a Business Subsidiary’s annual operating plan or capital budget provided to be imposed on Purchaser, the Restructuring Actions or against any the sale of the Purchased Assets and Properties described on Section 2.01(b)(vi) of the Disclosure Schedule (whether owned by an Asset Seller or Interestsa Business Subsidiary)), except with respect or creating or incurring any Lien (other than a Permitted Lien or Liens that will otherwise be released at or prior to Closing), on any Assets and Properties used or held for use primarily in the Interests as described in Section 3.4conduct of the Business;
(b) grant entering into, amending, modifying, terminating (partially or completely), granting any waiver of under or giving any term under, exercise consent or exercising any option underwith respect to any Business, Contract, Business Real Property Lease or give any Business License other than in the Ordinary Course, provided, however, that no contract governing any of the Joint Ventures shall be amended, modified, terminated (partially or completely) or granted any waiver under or given any consent with respect to, under or had any Material Contractoption exercised under;
1- NY/2171027.
(c) sellknowingly violating, transferbreaching or defaulting under in any material respect, convey or otherwise dispose taking or failing to take any action that (with or without notice or lapse of time or both) would constitute a material violation or breach of, or default under, any term or provision of any material Purchased Assets outside the ordinary course of business as of the Effective DateBusiness Contract, Business Real Property Lease, or any Business License;
(d) incurring, purchasing, canceling, prepaying or otherwise providing for a complete or partial discharge in advance of a scheduled payment date with respect to, or waiving any right of such Seller under, any Liability in excess of US $1,000,000 of or owing to any Business Subsidiary or any Asset Seller in connection with the Business, other than accounts payable incurred in the ordinary course of business Ordinary Course, in connection with any transaction between or among Sellers, Business Subsidiaries and their Affiliates, in connection with the Restructuring Actions or as otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Personcontemplated by this Agreement;
(e) except as may be required engaging in any transaction with respect to meet the requirements Business with any officer, director or Affiliate of applicable Laws any Business Subsidiary or GAAPany Asset Seller, change or any accounting method Affiliate of any such officer, director or practice in Affiliate, outside the Ordinary Course or on a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a wholenon-arm’s-length basis;
(f) fail making capital expenditures or commitments for demolition, alterations or additions to maintain its existence property, plant or consolidate or merge with any other Person or acquire all or substantially all equipment constituting capital assets on behalf of the Assets of Business Subsidiaries or any other Person;Asset Seller in connection with the Business in an aggregate amount exceeding US $1,000,000 which would be outside the Ordinary Course and not contained or contemplated in the Business’s current capital budget previously provided to Purchaser or contemplated by the Restructuring Actions; or
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of any Person, except for short-term investments made in the ordinary course of business;
(j) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of business, (ii) any Material Contract (including any Project Financing Document), or (iii) any Contract involving total consideration throughout its term in excess of $1,000,000 (except, in the case of the foregoing clauses (ii) and (iii), Contracts entered into in the ordinary course of business, consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing);
(k) waive any claims having a value in excess of $1,000,000, individually or in the aggregate;
(l) make any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter entering into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authorities; or
(t) agree or commit agreement to do or engage in any of the foregoing. Notwithstanding The provisions of Section 6.05, 6.06 and 6.07 are not intended to be, nor shall they be construed as, an endeavor on the foregoingpart of the Sellers, Seller may permit the Acquired Companies Business Subsidiaries or Purchasers to take commercially reasonable actions with respect implement the transactions contemplated by this Agreement or the Operative Agreements prior to emergency situations so long the Closing (and satisfaction of the conditions in Sections 10.05 and 11.05, including the requirements as Seller shallto the HSR Act and the Foreign Competition Laws), upon receipt and the parties agree that Purchasers shall not prior to the Closing be entitled to exercise any control over the Business and/or affairs of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of businessBusiness Subsidiaries.
Appears in 1 contract
Certain Restrictions. Except The Company and the Subsidiaries will, at all times from and after the date hereof until the Initial Closing, except as required or permitted herebyexpressly contemplated by this Agreement, or as otherwise set forth in Section 5.07 of the Company Disclosure Schedule 6.3or, during the Interim Period, Seller will cause the Acquired Companies and the Projects solely with respect to operate transactions in the ordinary course of business and consistent with past practice. Without limiting for the foregoing, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as exclusive benefit of the Effective Date Subsidiaries, to the extent Purchaser or amended as permitted hereby or as consented to by Buyerthe Purchaser LLC’s may otherwise consent in writing, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Itemsdelayed, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not torefrain from:
(a) permit amending their organizational documents in any material respect or allow taking any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets or Interests, except action with respect to the Interests as described in Section 3.4any such amendment or any recapitalization, reorganization, liquidation or dissolution of any such corporation;
(b) grant any waiver of any term under, exercise any option under, or give any consent with respect to, any Material Contract;
(c) sell, transfer, convey or otherwise dispose of any material Purchased Assets outside the ordinary course of business as of the Effective Date;
(d) other than accounts payable incurred in the ordinary course of business or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of any Person, except for short-term investments made in the ordinary course of business, or (ii) if outside the ordinary course of business, in an aggregate amount not to exceed $500,000, acquiring, selling transferring, mortgaging, encumbering or otherwise disposing of, or incurring any Lien (other than a Permitted Lien) on, any Assets and Properties of the Company or any of the Subsidiaries (other than portfolio securities held by the Insurance Subsidiaries);
(jc) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of business, (i) entering into, amending, modifying, terminating (partially or completely), assigning, granting any waiver under or giving any consent with respect to any Contract or License material to the Business or Condition of the Company, or (ii) otherwise waiving, releasing, satisfying, discharging or assigning any material rights, claims or benefits of the Company or any of the Subsidiaries thereunder except, in the case of this clause (ii), in connection with the settlement of claims arising under Company Loans or Insurance Contracts in the ordinary course of business;
(d) other than pursuant to the Loan Agreements or with respect to amounts arising under the Tax Allocation Agreement to be settled in accordance with Section 5.17, (i) incurring any Indebtedness, or (ii) purchasing, canceling, prepaying or otherwise providing for a complete or partial discharge in advance of a scheduled payment date with respect to, or waiving any right under, any Indebtedness;
(e) engaging with any Person in any merger or other business combination other than the transactions contemplated by this Agreement;
(f) other than as may be required by Law, making capital expenditures or commitments for additions to property, plant or equipment constituting capital assets in the aggregate in excess of $750,000;
(g) making any change in their fiscal year;
(h) agreeing or consenting to any material modifications of any material Contract with any Governmental or Regulatory Authority in respect of the operation of the business of the Company or the Subsidiaries, except where following discussion with the relevant Governmental or Regulatory Authority such modifications are imposed upon the Company or the Subsidiaries;
(i) making changes to their accounting methods (or underlying assumptions), principles or practices affecting its assets, liabilities or business, including any underwriting, reserving, renewal or residual method, practice or policy, except as required by applicable Law or changes in GAAP or SAP, or change any of the Company’s or any Subsidiary’s methods of reporting income and deductions for federal, state or local income Tax purposes from those employed in the preparation of the federal, state or local income Tax Returns of the Company or the Subsidiary for the taxable year ended December 31, 2010, except as required by applicable Law; making or changing any Tax election or change any method of Tax accounting; settling or compromising any federal, state or local foreign Tax liability; filing any amended Tax Return; entering into any closing agreement relating to any Tax; agreeing to an extension of a statute of limitations with respect to any Tax matter; or surrendering any right to claim a Tax refund;
(j) except as required by applicable Law or changes in GAAP or SAP making any material change in (i) any material practice or policy of the Company or the Subsidiaries relating to the pricing of consumer loan products, loan credit policy, loan monitoring and loan collection procedures, (ii) any Material Contract (including any Project Financing Document)practice or policy of the Company or the Subsidiaries in connection with its securitization transactions, or (iii) any Contract involving total consideration throughout its term in excess method of $1,000,000 (exceptcalculating allowances for losses or reserves for accounting, in the case of the foregoing clauses (ii) and (iii)financial reporting or Tax purposes, Contracts entered into in the ordinary course of business, consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing)as applicable;
(k) waive restructuring or otherwise changing the investment directives or guidelines or the investment managers of their investment securities portfolio in any claims having a value material respect through purchases, sales or otherwise, or the manner in excess of $1,000,000, individually which the portfolio is classified or in the aggregatereported;
(l) make except as required by applicable Law or changes in GAAP or SAP, changing in any material election respects their credit, reserving, charge-off, servicing, classification or similar policies relating to the consumer finance business, or their actuarial, reserving, investment or risk management or other similar policies;
(i) other than pursuant to Section 1.03, declaring, setting aside or paying any dividend or other distribution in respect of the capital stock of the Company or any Subsidiary not wholly-owned, directly or indirectly, by the Company, (ii) splitting, combining or reclassifying any of the Company’s capital stock or issuing or authorizing the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock, (iii) directly or indirectly redeeming, purchasing or otherwise acquiring any capital stock of or any Option with respect to Taxes;
the Company or any Subsidiary, or (miv) amend or modify its Organizational Documentsgranting any equity-based compensation;
(n) commence directly or settle indirectly acquiring, by merging or consolidating with, or by purchasing all or substantially all of assets or receivables of, or by any Claimother manner, any Person or equity interest of any Person;
(o) enter into any partnershipfailing to pay material obligations or to satisfy material Liabilities as the same become due and payable or requesting a material extension for the payment of such obligations or satisfaction of such Liabilities that would have otherwise become due and payable, joint venture, strategic alliance other than those which the Company or similar contract or arrangementthe Subsidiaries are reasonably disputing;
(p) increase the compensation payable commencing an Action or to become payable or the benefits provided to the Transferrable Project Employees, except Proceeding other than (i) to for the extent required by applicable Law routine collection of bills or by a Governmental Authorityloans, or (ii) for normal merit and cost of living increases consistent with past practice, matters equal to or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;less than $200,000; or
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter entering into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authorities; or
(t) agree or commit to do or engage in any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken outside the ordinary course of business.
Appears in 1 contract
Sources: Master Purchase and Sale Agreement (Prospect Capital Corp)
Certain Restrictions. Except MPC will, and will cause the Subsidiaries to refrain from:
(a) except as required disclosed in SECTION 4.07(a) OF THE DISCLOSURE SCHEDULE, and except as may be necessary or permitted herebydesirable in connection with the Restructuring, amending their certificates or articles of incorporation or by-laws (or other comparable corporate charter documents) in any material respect or taking any action with respect to any such amendment or any recapitalization, reorganization, liquidation or dissolution of any such corporation;
(b) except as disclosed in SECTION 4.07(b) OF THE DISCLOSURE SCHEDULE, and except as may be necessary or desirable in connection with the Restructuring, authorizing, issuing, selling or otherwise disposing of any shares of capital stock of or any Option with respect to MPC, the Company or any Subsidiary, or modifying or amending any right of any holder of outstanding shares of capital stock of or Option with respect to MPC, the Company or any Subsidiary;
(c) except for (i) the declaration of regular quarterly cash dividends on the MPC common stock not to exceed twenty (20) cents per share, and (ii) the payment of dividends required to be paid in respect of MPC outstanding preferred stock, declaring, setting aside or paying any dividend or other distribution in respect of the capital stock of MPC, the Company or any Subsidiary or directly or indirectly redeeming, purchasing or otherwise acquiring any capital stock of or any Option with respect to MPC, the Company or any Subsidiary;
(d) except as disclosed in SECTION 4.07(d) OF THE DISCLOSURE SCHEDULE and as specified in the Budget, acquiring or disposing of, or incurring any Lien (other than a Permitted Lien) on, any Assets and Properties individually or in the aggregate material to the Business or Condition of MPC and the Company;
(e) except (i) as disclosed in SECTION 4.07(e) OF THE DISCLOSURE SCHEDULE, and (ii) in the ordinary course of business consistent with past practices, the Budget and the terms and provisions of this Agreement, entering into, or in any material respect amending, modifying, terminating (partially or completely), granting any waiver under or giving any consent with respect to any Contract to which MPC, the Company or any Subsidiary is a party which is material to the Business or Condition of MPC and the Company;
(f) other than as specified in the Budget, (i) voluntarily incurring Indebtedness in an aggregate principal amount exceeding $5,000,000 (other than refinancings where the principal amount refinanced is no greater than the amount repaid), or (ii) purchasing, canceling, prepaying or otherwise providing for a complete or partial discharge in advance of a scheduled payment date with respect to, or waiving any right under, any Indebtedness in an aggregate principal amount exceeding $1,000,000 (in either case other than Indebtedness of MPC, the Company or a Subsidiary owing to MPC, the Company or a wholly-owned Subsidiary); PROVIDED, HOWEVER, that MPC, Seller, the Company and the Subsidiaries may take any and all actions necessary or appropriate to terminate the Employee Stock Ownership Plan portion of the MPC 401(k) Plan, and to prepay any outstanding Indebtedness of MPC, the Company and the Subsidiaries attributable to such Employee Stock Ownership Plan;
(g) other than in connection with the Restructuring, engaging with any Person in any merger or other business combination;
(h) except as set forth in Schedule 6.3the Budget, during making (1) capital expenditures or commitments for additions to property, plant or equipment constituting capital assets or (2) making expenditures with respect to operations and maintenance or incurring general and administrative expenses, in each case in an aggregate amount exceeding $1,000,000;
(i) except to the Interim Periodextent required by applicable Law or reasonably and in good faith believed by the officers of MPC or the Company to be in the best interests of MPC, Seller will cause the Acquired Companies Company and the Projects Subsidiaries (and subject in each case to operate prior written notice to, and consultation with, Purchaser), making any material change in (A) any pricing, investment, accounting, financial reporting, inventory, credit, allowance or Tax practice or policy, or (B) any method of calculating any bad debt, contingency or other reserve for accounting, financial reporting or Tax purposes;
(j) other than in the ordinary course of business or to the extent required by applicable Law (including without limitation, the duty to bargain in good faith under any collective bargaining agreement) (and subject in each case to prior written notice to, and consultation with, Purchaser), adopting, entering into or becoming bound by any material Benefit Plan, employment-related Contract or collective bargaining agreement, or amending, modifying or terminating (partially or completely) any such Benefit Plan (other than the Employee Stock Ownership Plan portion of the MPC 401(k) Plan), employment-related Contract or collective bargaining agreement if such action will result in material additional cost to MPC;
(k) making any change in its fiscal year;
(l) except as set forth in the Budget, making any loans or advances by it to, or guarantee, endorse or otherwise be or become contingently liable, directly or indirectly, in connection with the obligations, stocks or dividends of, or owning, purchasing or acquiring stock, obligations or securities of, or any other interest in, or make any capital contributions to, any Person;
(m) effectuating a "plant closing" or "mass layoff", as those terms are defined in the Worker Adjustment and Retraining Act, affecting in whole or in part any site of employment, facility, operating unit or employee of MPC, the Company or any Subsidiary;
(n) paying, discharging or satisfying any claims, liabilities or obligations (obsolete, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business and consistent with past practice. Without limiting practice of liabilities reflected or reserved against in the foregoing, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during balance sheet comprising the Interim Period, cause the Acquired Companies not to:
(a) permit or allow any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets or Interests, except with respect to the Interests as described in Section 3.4Financial Statements;
(bo) grant making or changing any Tax election, filing any amended Tax Return, settling or compromising any federal, state, local or foreign Tax liability, changing any annual Tax accounting period, changing any method of Tax accounting, entering into any closing agreement relating to any Tax, surrendering any right to claim a Tax refund, or consenting to any extension or waiver of the limitations period applicable to any term underTax claim or assessment, exercise any option under, or give any consent with respect to, any Material Contract;
(c) sell, transfer, convey or otherwise dispose of any material Purchased Assets outside the ordinary course of business as of the Effective Date;
(d) other than accounts payable incurred in the ordinary course of business or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice each case in a manner that is inconsistent with past practice in a way that would which could reasonably be expected to have a material and adverse impact effect on Purchaser, the Acquired Companies, taken as a whole;
(f) fail to maintain its existence Company or consolidate or merge with the Subsidiaries for any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of any Person, except for short-term investments made in the ordinary course of business;
(j) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of business, (ii) any Material Contract (including any Project Financing Document), or (iii) any Contract involving total consideration throughout its term in excess of $1,000,000 (except, in the case of the foregoing clauses (ii) and (iii), Contracts entered into in the ordinary course of business, consistent with past practice, which will be fully performed prior to post Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing);
(k) waive any claims having a value in excess of $1,000,000, individually or in the aggregate;
(l) make any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;period; or
(p) increase selling any cushion gas other than sales in accordance with prudent utility practices, the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost proceeds of living increases consistent with past practicewhich will remain with, or (iii) changes in salary to be used for the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basisbenefit of, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;MPC; or
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter entering into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authorities; or
(t) agree or commit to do or engage in any of the foregoing. Notwithstanding any provision to the foregoingcontrary, nothing in this SECTION 4.07 or SECTION 4.05 shall require MPC, Seller may permit or the Acquired Companies Company to take commercially reasonable actions with respect to emergency situations so long as Seller shallrevise, upon receipt of notice dishonor or delay performance of any such actions, promptly inform Buyer of any such actions taken outside obligation under agreements in existence prior to the ordinary course of businessdate hereof.
Appears in 1 contract
Certain Restrictions. Except as required or permitted hereby, or as otherwise set forth in Schedule 6.3, during the Interim Period, Seller Sellers will cause the Acquired Companies Company and the Projects Subsidiaries to operate in the ordinary course of business and consistent with past practice. Without limiting the foregoing, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not torefrain from:
(a) permit amending their articles of incorporation or allow by-laws (or other comparable corporate charter documents) or taking any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets or Interests, except action with respect to the Interests as described in Section 3.4any such amendment or any recapitalization, reorganization, liquidation or dissolution of any such corporation;
(b) grant any waiver authorizing, issuing, selling or otherwise disposing of any term under, exercise shares of capital stock of or any option underOption with respect to the Company or any Subsidiary, or give modifying or amending any consent right of any holder of outstanding shares of capital stock of or Option with respect to, to the Company or any Material ContractSubsidiary;
(c) selldeclaring, transfersetting aside or paying any dividend or other distribution in respect of the capital stock of the Company or any Subsidiary not wholly owned by the Company, convey or directly or indirectly redeeming, purchasing or otherwise dispose acquiring any capital stock of or any material Purchased Assets outside Option with respect to the ordinary course of business as of Company or any Subsidiary not wholly owned by the Effective DateCompany;
(d) other than accounts payable incurred in the ordinary course of business acquiring or otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance disposing of, or indicating its consent to, approval of, or acquiescence inincurring any Lien (other than a Permitted Lien) on, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of any PersonAssets and Properties, except for short-term investments made in the ordinary course of business;
(j) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of businessbusiness consistent with past practice;
(e) (i) entering into, amending, modifying, terminating (partially or completely), granting any waiver under or giving any consent with respect to (A) any Contract that would, if in existence on the date of this Agreement, be required to be disclosed in the Disclosure Schedule pursuant to Section 2.20, excluding any Aircraft Asset Leases or (B) any material License or (ii) granting any Material irrevocable powers of attorney;
(f) violating, breaching or defaulting under in any material respect, or taking or failing to take any action that (with or without notice or lapse of time or both) would constitute a material violation or breach of, or default under, any term or provision of any License held or used by the Company or any Subsidiary or any Contract to which the Company or any Subsidiary is a party or by which any of their respective Assets and Properties is bound;
(including any Project Financing Document)g) (i) other than taking advances under the Company’s existing revolving credit facility with Wachovia Bank, N.A., incurring Indebtedness in an aggregate principal amount exceeding $1,000,000, or (iiiii) voluntarily purchasing, canceling, prepaying or otherwise providing for a complete or partial discharge in advance of a scheduled payment date with respect to, or waiving any Contract involving total consideration throughout its term right of the Company or any Subsidiary under, any Indebtedness of or owing to the Company or any Subsidiary;
(h) engaging with any Person in excess of any merger or other business combination;
(i) making capital expenditures or commitments for additions to property, plant or equipment constituting capital assets in amounts exceeding $1,000,000 (exceptin the aggregate or, in the case of the foregoing clauses (ii) and (iii)assets constituting Aircraft-Related Assets, Contracts entered into in the ordinary course of business, consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing);
(k) waive any claims having a value in excess of exceeding $1,000,000, 5,000,000 individually or $20,000,000 in the aggregate;
(lj) make making any material election with respect to Taxeschange in the lines of business in which they participate or are engaged;
(mk) amend writing off or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to writing down any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice their Assets and directives from ERCOT and other Governmental Authorities; or
(t) agree or commit to do any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions with respect to emergency situations so long as Seller shall, upon receipt of notice of any such actions, promptly inform Buyer of any such actions taken Properties outside the ordinary course of businessbusiness consistent with past practice; or
(l) entering into any Contract to do or engage in any of the foregoing.
Appears in 1 contract
Certain Restrictions. Except as required or permitted herebydisclosed on Sections 6.07 and 8.08(a) of the Disclosure Schedule, or as otherwise set forth in Schedule 6.3, during the Interim Period, such Seller will cause the Acquired Companies and the Projects to operate in the ordinary course of business and consistent with past practice. Without limiting the foregoing, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed (except that this Section 6.3 shall not restrict (i) the transfer of Excluded Items, (ii) the termination or assignment of Excluded Contracts, (iii) the taking of any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8refrain from, and no consent will cause each of Buyer will be required with respect its Business Subsidiaries to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not torefrain from:
(a) permit acquiring or allow disposing of any Encumbrances Assets and Properties used or held for use in primarily the conduct of the Business with a consideration of greater than US $1,000,000 for acquisitions, and for dispositions, $500,000 in the aggregate and $50,000 individually (other than Permitted Encumbrances) in the Ordinary Course, as contemplated by a Seller’s or a Business Subsidiary’s annual operating plan or capital budget provided to be imposed on Purchaser, the Restructuring Actions or against any the sale of the Purchased Assets and Properties described on Section 2.01(b)(vi) of the Disclosure Schedule (whether owned by an Asset Seller or Interestsa Business Subsidiary)), except with respect or creating or incurring any Lien (other than a Permitted Lien or Liens that will otherwise be released at or prior to Closing), on any Assets and Properties used or held for use primarily in the Interests as described in Section 3.4conduct of the Business;
(b) grant entering into, amending, modifying, terminating (partially or completely), granting any waiver of under or giving any term under, exercise consent or exercising any option underwith respect to any Business, Contract, Business Real Property Lease or give any Business License other than in the Ordinary Course, provided, however, that no contract governing any of the Joint Ventures shall be amended, modified, terminated (partially or completely) or granted any waiver under or given any consent with respect to, under or had any Material Contractoption exercised under;
(c) sellknowingly violating, transferbreaching or defaulting under in any material respect, convey or otherwise dispose taking or failing to take any action that (with or without notice or lapse of time or both) would constitute a material violation or breach of, or default under, any term or provision of any material Purchased Assets outside the ordinary course of business as of the Effective DateBusiness Contract, Business Real Property Lease, or any Business License;
(d) incurring, purchasing, canceling, prepaying or otherwise providing for a complete or partial discharge in advance of a scheduled payment date with respect to, or waiving any right of such Seller under, any Liability in excess of US $1,000,000 of or owing to any Business Subsidiary or any Asset Seller in connection with the Business, other than accounts payable incurred in the ordinary course of business Ordinary Course, in connection with any transaction between or among Sellers, Business Subsidiaries and their Affiliates, in connection with the Restructuring Actions or as otherwise incurred pursuant to the Material Contracts or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Personcontemplated by this Agreement;
(e) except as may be required engaging in any transaction with respect to meet the requirements Business with any officer, director or Affiliate of applicable Laws any Business Subsidiary or GAAPany Asset Seller, change or any accounting method Affiliate of any such officer, director or practice in Affiliate, outside the Ordinary Course or on a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a wholenon-arm’s-length basis;
(f) fail making capital expenditures or commitments for demolition, alterations or additions to maintain its existence property, plant or consolidate or merge with any other Person or acquire all or substantially all equipment constituting capital assets on behalf of the Assets of Business Subsidiaries or any other Person;Asset Seller in connection with the Business in an aggregate amount exceeding US $1,000,000 which would be outside the Ordinary Course and not contained or contemplated in the Business’s current capital budget previously provided to Purchaser or contemplated by the Restructuring Actions; or
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of any Person, except for short-term investments made in the ordinary course of business;
(j) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of business, (ii) any Material Contract (including any Project Financing Document), or (iii) any Contract involving total consideration throughout its term in excess of $1,000,000 (except, in the case of the foregoing clauses (ii) and (iii), Contracts entered into in the ordinary course of business, consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing);
(k) waive any claims having a value in excess of $1,000,000, individually or in the aggregate;
(l) make any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) enter entering into any partnership, joint venture, strategic alliance or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce or otherwise alter in any material respect any capital expenditures in a manner not consistent with the capital budget of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authorities; or
(t) agree or commit agreement to do or engage in any of the foregoing. Notwithstanding From and after the foregoingClosing, Seller may permit the Acquired Companies to take commercially reasonable actions provisions of this Section 6.07 shall not apply with respect to emergency situations so long as Seller shall, upon receipt of notice (i) the operations of any China Subsidiary despite the fact that the applicable China Closing has not yet occurred and the provisions of the China Interim Agreement shall govern such actionsmatters to the extent set forth therein and (ii) the operations with respect to the Brazil Business Assets and the Brazil Assumed Liabilities despite the fact that the Brazil Closing has not yet occurred and the provisions of Section 6.23 shall govern such matters to the extent set forth therein. The provisions of Section 6.05, promptly inform Buyer 6.06 and 6.07 are not intended to be, nor shall they be construed as, an endeavor on the part of the Sellers, the Business Subsidiaries or Purchasers to implement the transactions contemplated by this Agreement or the Operative Agreements prior to the Closing (and satisfaction of the conditions in Sections 10.01(e) and 11.01(e), including the requirements as to the HSR Act and the Foreign Competition Laws), and the parties agree that Purchasers shall not prior to the Closing be entitled to exercise any such actions taken outside control over the ordinary course Business and/or affairs of businessthe Business Subsidiaries.
Appears in 1 contract
Certain Restrictions. Except as required or permitted hereby(a) From the date of this Agreement until the Termination Date, or as otherwise set forth in Schedule 6.3each Stockholder hereby agrees that such Stockholder shall not, during the Interim Periodshall cause its Subsidiaries (if any) and its and their respective directors, Seller will cause the Acquired Companies officers and the Projects to operate in the ordinary course of business employees not to, and consistent with past practice. Without limiting the foregoing, except as otherwise set forth in Schedule 6.3, required or permitted hereby or required by applicable Laws or any Material Contract in effect as of the Effective Date or amended as permitted hereby or as consented to by Buyer, which consent shall not be unreasonably withheldauthorize its investment bankers, conditioned attorneys, accountants and other advisors and representatives (each, a “Representative”) to, and shall use its reasonable best efforts to cause its and its Subsidiaries’ (if any) Representatives not to, directly or delayed (except that this Section 6.3 shall not restrict indirectly: (i) the transfer of Excluded Itemssolicit, initiate, propose, knowingly induce, knowingly encourage, or knowingly facilitate, any Takeover Proposal, (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person (or any representative thereof) any confidential or nonpublic information in connection with or for the termination or assignment purpose of Excluded Contractsfacilitating any Takeover Proposal, (iii) the taking of except with respect to a Permitted Confidentiality Agreement, execute or enter into any action otherwise listed below to the extent reasonably required to accomplish any of the Permitted Transactions or (iv) the termination of the services contemplated by Section 6.8, and no consent of Buyer will be required agreement with respect to any matter set forth in this Section 6.3 Takeover Proposal, (iv) approve, authorize, agree or elsewhere in this Agreement publicly announce any intention to the extent that the requirement of such consent would reasonably be expected to violate any applicable Law), Seller will, during the Interim Period, cause the Acquired Companies not to:
(a) permit or allow any Encumbrances (other than Permitted Encumbrances) to be imposed on or against do any of the Purchased Assets foregoing or Interests(v) adopt or approve any Takeover Proposal or recommend, except or publicly propose to adopt, approve or recommend, any Takeover Proposal; provided, that this Section 6(a) shall not restrict a Stockholder from taking any action or doing anything that the Company or any of its Subsidiaries is permitted to do in accordance with the terms of Section 5.02 of the Merger Agreement.
(b) Each Stockholder hereby agrees to notify Parent in writing as promptly as practicable and in any event within 24 hours after it has knowledge of the receipt of any Takeover Proposal or any request for information or inquiry that contemplates or is in furtherance of a Takeover Proposal and the terms and conditions of such Takeover Proposal, request or inquiry (including any subsequent amendment or other modification to such terms and conditions) and the identity of the person making any such Takeover Proposal, request or inquiry; it being understood that this covenant shall be deemed satisfied by all Stockholders if such notice if provided to Parent in accordance with this Section 6(b) by the Company or any Stockholder.
(c) Prior to the Termination Date, in the event that any Stockholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional Shares or other voting interests with respect to the Interests as described in Section 3.4;
(b) grant any waiver Company, such Shares or voting interests shall, without further action of the parties, be deemed Covered Shares and subject to the provisions of this Agreement, the number of Shares held by such Stockholders shall be deemed amended accordingly, and such Shares or voting interests shall automatically become subject to the terms of this Agreement. Each Stockholder shall promptly notify the Company of any term under, exercise any option under, or give any consent with respect to, any Material Contract;
(c) sell, transfer, convey or otherwise dispose of any material Purchased Assets outside the ordinary course of business as of the Effective Date;such event.
(d) other than accounts payable incurred in the ordinary course of business or otherwise incurred pursuant Prior to the Material Contracts or short termTermination Date, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the Closing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume or guarantee the obligations of any other Person;
(e) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice in a way that would reasonably be expected to have a material and adverse impact on the Acquired Companies, taken as a whole;
(f) fail to maintain its existence or consolidate or merge with any other Person or acquire all or substantially all of the Assets of any other Person;
(g) issue or sell any equity ownership interests;
(i) commence any case, proceeding or other action under any existing or future Debtor Relief Law, seeking (A) to have an order for relief entered with respect to it, or (B) to adjudicate it as bankrupt or insolvent, or (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (D) appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) make a general assignment for the benefit of its creditors, or take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this Section 6.3(h);
(i) purchase any securities of any Person, except for short-term investments made in the ordinary course of business;
(j) enter into, terminate or amend (i) any Material Permit other than in the ordinary course of business, (ii) any Material Contract (including any Project Financing Document), or (iii) any Contract involving total consideration throughout its term in excess of $1,000,000 (except, in the case of the foregoing clauses (ii) and (iii), Contracts entered into in the ordinary course of business, consistent with past practice, which will be fully performed prior to Closing and under which the Acquired Companies will have no further obligations or liabilities following the Closing);
(k) waive any claims having a value in excess of $1,000,000, individually or in the aggregate;
(l) make any material election with respect to Taxes;
(m) amend or modify its Organizational Documents;
(n) commence or settle any Claim;
(o) Stockholder shall enter into any partnership, joint venture, strategic alliance voting agreement or similar contract or arrangement;
(p) increase the compensation payable or to become payable or the benefits provided to the Transferrable Project Employees, except (i) to the extent required by applicable Law or by a Governmental Authority, (ii) for normal merit and cost of living increases consistent with past practice, or (iii) changes in salary to the extent necessary as determined by Seller in good faith to retain Transferrable Project Employees not to exceed 5% increases on an individual basis, or (iv) changes to any Plant Employee’s Benefit Plan effective January 1, 2016 that have been communicated to Transferrable Project Employees and made available to Buyer as of the Effective Date;
(q) declare, set aside, make or pay any cash or non-cash dividend or other distribution on or voting trust with respect to any of its ownership interests (other than distributions solely among the Acquired Companies) except for NAPS Dispositions (as defined in the Project Financing Agreement);
(r) enter into any Contract with any Related Party;
(s) delay, defer, reduce Covered Shares or otherwise alter in any material respect any capital expenditures in grant a manner not consistent with the capital budget proxy or power of the Acquired Companies provided to Buyer as the Effective Date, except as would be consistent with prudent operating practice and directives from ERCOT and other Governmental Authorities; or
(t) agree or commit to do any of the foregoing. Notwithstanding the foregoing, Seller may permit the Acquired Companies to take commercially reasonable actions attorney with respect to emergency situations so long as Seller shallany of its Covered Shares, upon receipt of notice in either case, that is inconsistent with such Stockholder’s obligations pursuant to this Agreement.
(e) Each Stockholder hereby agrees not to commence or participate in, and to take all actions necessary to opt out of any such actionsclass in any class action with respect to, promptly inform Buyer any claim, derivative or otherwise, against Parent, the Company, any of its Subsidiaries, Merger Sub or any of their respective successors (i) challenging the validity of, or seeking to enjoin or delay the operation of, any provision of this Agreement or the Merger Agreement (including any claim seeking to enjoin or delay the consummation of the Merger) or (ii) alleging a breach of any duty of the Company Board in connection with the Merger Agreement, this Agreement or the transactions contemplated thereby or hereby.
(f) Each Stockholder shall permit Parent to publish and disclose in all documents and schedules filed with the SEC, and any press release or other disclosure document that Parent determines to be necessary or desirable in connection with the Merger and any transactions related thereto, such actions taken Stockholder’s identity and ownership of Covered Shares and the nature of such Stockholder’s commitments, arrangements and understandings under this Agreement; provided, that prior to any such announcement or disclosure, Parent shall use commercially reasonable efforts to provide the Stockholders (through the Company or its outside counsel, ▇▇▇▇▇▇▇▇, Lipton, ▇▇▇▇▇ & ▇▇▇▇) with the ordinary course of businessopportunity to review and comment on any references to any individual Stockholder or the Stockholders generally in such announcement or disclosure and consider such comments in good faith.
(g) The Stockholders shall be permitted to file this Agreement or a form hereof with, or disclose the terms hereof in, any filing with the SEC or any other Governmental Entity or securities exchange; provided, that the Stockholders (through any Stockholder, the Company or its outside counsel, Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇) use commercially reasonable efforts to provide Parent the opportunity to review and comment on any such filing.
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