Restrictions on Certain Actions. Without limiting the generality of ------------------------------- Section 6.1 and except as otherwise expressly provided in this Agreement, prior ----------- to the Closing, Seller shall not permit any Acquired Company, without the prior written consent of Buyer, to: (a) amend its charter or bylaws or other governing instruments; (b) (i) issue, sell, or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase, or otherwise) any shares of its capital stock of any class or any other securities or equity equivalents; or (ii) amend any of the terms of any such securities outstanding as of the date hereof; (i) split, combine, or reclassify any shares of its capital stock; (ii) declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock; (iii) repurchase, redeem or otherwise acquire any of its securities; or (iv) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing a liquidation, dissolution, merger, consolidation, restructuring, recapitalization, or other reorganization of any Acquired Company; (i) except in the ordinary course of business consistent with past practice, for obligations of another Acquired Company, and for any indebtedness to be repaid prior to Closing in accordance with Section 6.3, create, incur, ----------- guarantee, or assume any indebtedness for borrowed money or otherwise become liable or responsible for the obligations of any other Person; (ii) make any loans, advances, or capital contributions to, or investments in, any other Person (other than to wholly owned subsidiaries or to another Acquired Company and customary loans or advances to employees in amounts not material to the maker of such loan or advance); or (iii) mortgage, or pledge any of its material assets, tangible or intangible, or create or suffer to exist any material lien thereupon; (i) except as may be required by Applicable Law or except to the extent consistent with amendments or modifications made to similar plans or arrangements of Seller or its corporate parent, enter into, adopt or make any material amendments to or terminate any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase, pension, retirement, deferred compensation, employment, severance or other employee benefit agreement, trust, plan, fund or other arrangement for the benefit or welfare of any director, officer or employee; (ii) except for normal increases in the ordinary course of business consistent with past practice that, in the aggregate, do not result in a material increase in benefits or compensation expense to the Acquired Companies, taken as a whole, increase the benefits or compensation to any director, officer, or employee; or (iii) pay to any director, officer, or employee any benefit not permitted by any employee benefit agreement, trust, plan, fund, or other arrangement as in effect on the date hereof; (f) acquire, sell, lease, transfer, or otherwise dispose of, directly or indirectly, any assets outside the ordinary course of business consistent with past practice or any assets that in the aggregate are material to the Acquired Companies considered as a whole; (g) acquire (by merger, consolidation, or acquisition of stock or assets or otherwise) any corporation, partnership, or other business organization or division thereof; (h) make any capital expenditure or expenditures, which, individually, is in excess of $500,000 or, in the aggregate, are in excess of $2,500,000, except (i) for any capital expenditure made for the items described in Schedule 6.2(h), and (ii) reasonable --------------- expenditures made by any Acquired Company in connection with any emergency or other force majeure events affecting such Acquired Company; (i) pay, discharge, or satisfy any material claims, liabilities or obligations (whether accrued, absolute, contingent, unliquidated or otherwise, and whether asserted or unasserted), other than (i) the payment, discharge or satisfaction in the ordinary course of business consistent with past practice, or in accordance with their terms, of liabilities reflected or reserved against in the Combined Financial Statements or incurred since the Balance Sheet Date in the ordinary course of business consistent with past practice, (ii) the settlement of any Proceeding to the extent contemplated in Section 6.2(l), and -------------- (iii) the Acquired Companies may continue to pursue and prosecute the Pending FERC and RRC Proceedings; (j) amend, modify, or change in any material respect (i) any Commercial Contract that had revenues of $5,000,000 or more in calendar year 1999 and that as of December 31, 1999 had a remaining term of 1 year or greater or (ii) any contract or agreement listed in Schedule 4.13 in accordance with clause (ix) of ------------- Section 4.13; ------------ (k) change in any material respect any of the accounting principles or practices used by it, except for any change required by reason of a concurrent change in generally accepted accounting principles; and (l) settle or resolve any pending or threatened litigation constituting a Proceeding including those listed on Schedule 4.11 or Proceeding pending ------------- before FERC, except for the matters described in Schedule 6.2(l) and subject to --------------- the limitation set forth therein.
Appears in 1 contract
Sources: Stock Purchase Agreement (Pacific Gas & Electric Co)
Restrictions on Certain Actions. Without limiting the generality of -------------------------------
Section 6.1 the foregoing, and except as otherwise expressly provided in this Agreement, prior ----------- to the Closing, Seller the Company shall not permit any Acquired Companynot, without the prior written consent of Buyer, to:
(a) amend its charter or bylaws or other governing instrumentsbylaws;
(b) (i) issue, sell, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase, purchase or otherwise) any shares of its capital stock of any class or any other securities or equity equivalents; equivalents or (ii) amend in any respect any of the terms of any such securities outstanding as of the date hereof;
(i) split, combine, combine or reclassify any shares of its capital stock; (ii) declare, set aside or pay any dividend or other distribution (whether in cash, stock stock, or property or any combination thereof) in respect of its capital stock; (iii) repurchase, redeem or otherwise acquire any of its securities; securities or (iv) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing a liquidation, dissolution, merger, consolidation, restructuring, recapitalization, recapitalization or other reorganization of any Acquired the Company;
(i) except in the ordinary course of business consistent with past practice, for obligations of another Acquired Company, and for any indebtedness to be repaid prior to Closing in accordance with Section 6.3, create, incur, ----------- guarantee, guarantee or assume any indebtedness for borrowed money or otherwise become liable or responsible for the obligations of any other Personperson; (ii) make any loans, advances, advances or capital contributions to, or investments in, any other Person (other than to wholly owned subsidiaries or to another Acquired Company and customary loans or advances to employees in amounts not material to the maker of such loan or advance)person; or (iii) mortgagepledge or otherwise encumber shares of capital stock of the Company or (iv) except in the ordinary course of business consistent with past practice, mortgage or pledge any of its material assets, tangible or intangible, or create or suffer to exist any material lien thereupon;
(i) enter into, adopt or (except as may be required by Applicable Law or except to the extent consistent with amendments or modifications made to similar plans or arrangements of Seller or its corporate parent, enter into, adopt or make any material amendments to law) amend or terminate any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase, pension, retirement, deferred compensation, employment, severance severance, or other employee benefit agreement, trust, plan, fund or other arrangement for the benefit or welfare of any director, officer or employee;
(ii) except for normal increases in the ordinary course of business consistent with past practice that, in the aggregate, do not result in a material increase in benefits or compensation expense to the Acquired Companies, taken as a whole, increase the benefits or compensation to any director, officer, or employee; or (iii) pay to any director, officer, or employee any benefit not permitted by any employee benefit agreement, trust, plan, fund, or other arrangement as in effect on the date hereof;
(f) acquire, sell, lease, transfer, or otherwise dispose of, directly or indirectly, any assets outside the ordinary course of business consistent with past practice or any assets that in the aggregate are material to the Acquired Companies considered as a whole;
(g) acquire (by merger, consolidation, or acquisition of stock or assets or otherwise) any corporation, partnership, or other business organization or division thereof;
(h) make any capital expenditure or expenditures, which, individually, is in excess of $500,000 or, in the aggregate, are in excess of $2,500,000, except (i) for any capital expenditure made for the items described in Schedule 6.2(h), and (ii) reasonable --------------- expenditures made by any Acquired Company in connection with any emergency or other force majeure events affecting such Acquired Company;
(i) pay, discharge, or satisfy any material claims, liabilities or obligations (whether accrued, absolute, contingent, unliquidated or otherwise, and whether asserted or unasserted), other than (i) the payment, discharge or satisfaction in the ordinary course of business consistent with past practice, or in accordance with their terms, of liabilities reflected or reserved against in the Combined Financial Statements or incurred since the Balance Sheet Date in the ordinary course of business consistent with past practice, (ii) the settlement of any Proceeding to the extent contemplated in Section 6.2(l), and -------------- (iii) the Acquired Companies may continue to pursue and prosecute the Pending FERC and RRC Proceedings;
(j) amend, modify, or change in any material respect (i) any Commercial Contract that had revenues of $5,000,000 or more in calendar year 1999 and that as of December 31, 1999 had a remaining term of 1 year or greater or (ii) any contract or agreement listed in Schedule 4.13 in accordance with clause (ix) of ------------- Section 4.13; ------------
(k) change in any material respect any of the accounting principles or practices used by it, except for any change required by reason of a concurrent change in generally accepted accounting principles; and
(l) settle or resolve any pending or threatened litigation constituting a Proceeding including those listed on Schedule 4.11 or Proceeding pending ------------- before FERC, except for the matters described in Schedule 6.2(l) and subject to --------------- the limitation set forth therein.do
Appears in 1 contract
Restrictions on Certain Actions. Without limiting the generality of -------------------------------
Section 6.1 the foregoing, and except as otherwise expressly provided in this AgreementAgreement or described on Section 6.2 of the Disclosure Schedule, prior ----------- to the Closing, no Company will, nor will Seller shall not permit cause any Acquired CompanyCompany to, without the prior written consent of BuyerBuyer (which will not be unreasonably withheld, todelayed or conditioned), amend the Governing Documents of any Company or allow any Company to take, consent to or allow any of the following actions:
(a) amend its charter or bylaws or other governing instruments;
(b) (i) issue, sell, or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase, or otherwise) any shares of its capital stock of any class or any other securities or equity equivalents; or (ii) amend equivalents in any of the terms of any such securities outstanding as of the date hereofCompany;
(i) split, combine, or reclassify any shares of its capital stock; (ii) declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock; (iii) repurchase, redeem or otherwise acquire any of its securities; or (ivb) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing a liquidation, dissolution, merger, consolidation, conversion, restructuring, recapitalization, or other reorganization of any Acquired Company;
(c) other than any of the following that will terminate at Closing, (i) except in the ordinary course of business consistent with past practice, for obligations of another Acquired Company, and for any indebtedness to be repaid prior to Closing in accordance with Section 6.3, create, incur, ----------- guarantee, or assume any indebtedness for borrowed money or otherwise become liable or responsible for the obligations of any other Person; (ii) make any loans, advances, or capital contributions to, or investments in, any other Person Person; (iii) pledge or otherwise encumber the Subsidiary Stock or other than to wholly owned subsidiaries or to another Acquired Company and customary loans or advances to employees in amounts not material to the maker equity securities of such loan or advance)any Company; or (iiiiv) mortgage, mortgage or pledge any of its material assetsAssets, tangible or intangible, or create or suffer to exist any material lien thereuponLien thereupon (other than Permitted Liens);
(d) (i) enter into, adopt, or (except as may be required by Applicable Law or except to the extent consistent with amendments or modifications made to similar plans or arrangements of Seller or its corporate parent, enter into, adopt or make any material amendments to Laws) amend or terminate any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase, pension, retirement, deferred compensation, employment, severance severance, or other employee benefit agreement, trust, plan, fund fund, or other arrangement for the benefit or welfare of any director, officer officer, or employee;
; (ii) except for normal increases in the ordinary course of business consistent with past practice that, in the aggregate, do not result in a material increase in any manner the compensation or fringe benefits or compensation expense to the Acquired Companies, taken as a whole, increase the benefits or compensation to of any director, officer, or employee, other than increases made in the Ordinary Course of Business; or (iii) pay to any director, officer, or employee any benefit not permitted required by any employee benefit agreement, trust, plan, fund, or other arrangement as in effect on the date hereof, except as set forth on Section 6.2 of the Disclosure Schedule;
(fe) acquire, sell, lease, transfer, or otherwise dispose of, directly or indirectly, any assets outside of the ordinary course Assets, except for (i) sales of business consistent with past practice or any assets that Hydrocarbons in the aggregate are material Ordinary Course of Business, (ii) sales to Persons of inventory and excess or obsolete assets in the Acquired Companies considered as a wholeOrdinary Course of Business or personal property in the Ordinary Course of Business that is either replaced by equivalent property or normally consumed in the operation of that Company’s business and (iii) the sale or other disposition of the Excluded Assets or the Excluded Companies;
(gf) acquire (by merger, consolidation, or acquisition of stock or assets or otherwise) any corporation, partnership, or other business organization or division thereof;
(hg) make enter into any capital expenditure lease, contract, agreement, commitment, arrangement, right of way, easement or expenditurestransaction outside the Ordinary Course of Business, whichor any lease, individuallycontract, is in excess of $500,000 oragreement, in the aggregatecommitment, are in excess of $2,500,000arrangement, except or transaction (i) for which grants or creates any capital expenditure made for the items described option, right of first refusal, call, put or other preferential right in Schedule 6.2(h)favor of any third Person, and (ii) reasonable --------------- expenditures made by for the purchase, sale, exchange, gathering, processing, treating and transportation of Hydrocarbons having a term of more than twelve (12) months, (iii) that would constitute a Company Contract if in existence on the date of this Agreement (except for any Acquired that terminate at Closing) or (iv) enter into any contract, agreement or understanding with Seller or any of its Affiliates that would survive Closing;
(h) amend, modify, extend or change, or waive, release, grant, close out or transfer any material rights under, any Company in connection with any emergency or other force majeure events affecting such Acquired CompanyContract;
(i) pay, discharge, declare any dividends or satisfy distributions that are payable after the Effective Time (provided that nothing contained in this Section 6.2 or elsewhere in this Agreement shall prohibit Seller or any material claims, liabilities Company from declaring any cash dividends or obligations (whether accrued, absolute, contingent, unliquidated or otherwise, and whether asserted or unasserted), other than (i) the payment, discharge or satisfaction in the ordinary course of business consistent with past practice, or in accordance with their terms, of liabilities reflected or reserved against in the Combined Financial Statements or incurred since the Balance Sheet Date in the ordinary course of business consistent with past practice, (ii) the settlement of any Proceeding cash distributions that are payable prior to the extent contemplated in Section 6.2(lEffective Time or otherwise withdrawing cash from the Companies), and -------------- (iii) the Acquired Companies may continue to pursue and prosecute the Pending FERC and RRC Proceedings;; or
(j) amend, modify, agree in writing or change in any material respect (i) any Commercial Contract that had revenues of $5,000,000 or more in calendar year 1999 and that as of December 31, 1999 had a remaining term of 1 year or greater or (ii) any contract or agreement listed in Schedule 4.13 in accordance with clause (ix) of ------------- Section 4.13; ------------
(k) change in any material respect otherwise to take any of the accounting principles or practices used by it, except for any change required by reason of a concurrent change in generally accepted accounting principles; and
(l) settle or resolve any pending or threatened litigation constituting a Proceeding including those listed on Schedule 4.11 or Proceeding pending ------------- before FERC, except for the matters actions described in Schedule 6.2(l) and subject to --------------- the limitation set forth thereinthis Section 6.2.
Appears in 1 contract
Sources: Stock Purchase and Sale Agreement (Crosstex Energy Lp)
Restrictions on Certain Actions. Without limiting the generality of -------------------------------
Section 6.1 the foregoing, and except as otherwise expressly provided in this AgreementAgreement or disclosed in Section 7.2 of the Disclosure Schedule, prior ----------- to the Closing, Seller shall cause the Company and each Subsidiary to not permit take, consent to or allow any Acquired Companyof the following actions, without the prior written consent of Buyer, to:Buyer (which consent shall not be unreasonably withheld or delayed):
(a) amend its charter or bylaws or other governing instrumentsGoverning Documents;
(b) (i) issue, sell, or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase, or otherwise) any shares of its capital stock of any class or any other equity or voting securities or equity equivalents; equivalents in the Company or (ii) amend any of the terms of any such securities outstanding as of the date hereofSubsidiary;
(ic) split, combine, or reclassify any shares of its capital stock; (ii) declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock; (iii) repurchase, redeem or otherwise acquire any of its securities; or (iv) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing a liquidation, dissolution, merger, consolidation, restructuring, recapitalization, or other reorganization of any Acquired Company;
(i) except in the ordinary course of business consistent with past practice, for obligations of another Acquired Company, and for any indebtedness to be repaid prior to Closing in accordance with Section 6.3, create, incur, ----------- guarantee, or assume any indebtedness for borrowed money or otherwise become liable or responsible for the obligations of any other Person; (ii) make any loans, advances, or capital contributions to, or investments in, any other Person (other than to wholly owned subsidiaries or to another Acquired Company and customary loans or advances to employees in amounts not material to the maker of such loan or advance)Person; or (iii) mortgagepledge or otherwise encumber shares of common stock, capital stock or other equity securities of the Company; (iv) mortgage or pledge any of its material assets, tangible or intangible, or create or suffer to exist any material lien thereuponLien thereupon (except for customary Liens contained in or arising under joint operating (or similar) agreements binding on the Company or any Subsidiary with respect to amounts not yet due or not yet delinquent and except for statutory Liens for amounts not yet due or not yet delinquent); or (v) declare, set aside or pay any dividend or make any other distribution to shareholders (provided that this provision shall not restrict in any manner the funding or repayment of the balance of the Intercompany Loan);
(d) except as provided in any arrangement set forth on Sections 4.15(a) or (d) of the Disclosure Schedule, (i) enter into, adopt, or (except as may be required by Applicable Law or except to the extent consistent with amendments or modifications made to similar plans or arrangements of Seller or its corporate parent, enter into, adopt or make any material amendments to law) amend or terminate any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase, pension, retirement, deferred compensation, employment, severance severance, or other employee benefit agreement, trust, plan, fund fund, or other arrangement for the benefit or welfare of any director, officer officer, or employee;
; (ii) except for normal increases in the ordinary course of business consistent with past practice that, in the aggregate, do not result in a material increase in any manner the compensation or fringe benefits or compensation expense to the Acquired Companies, taken as a whole, increase the benefits or compensation to of any director, officer, or employee, other than increases in the ordinary course consistent with past practice; or (iii) pay to any director, officer, or employee any benefit not permitted required by any employee benefit agreement, trust, plan, fund, or other arrangement as in effect on the date hereof;
(fe) acquire, sell, lease, transfer, or otherwise dispose of, directly or indirectly, any assets, except for (i) sales of Hydrocarbons or entering into oil and gas leases, in each case in the ordinary course of business, consistent with past practices, (ii) sales of inventory and excess or obsolete assets outside in the ordinary course of business consistent with past practice or any assets that personal property in the aggregate are material to ordinary course of business that is either replaced by equivalent property or normally consumed in the Acquired Companies considered as a wholeoperation of the Company's business and (iii) acquisitions, sales, leases, transfers or dispositions of assets not exceeding $1,000,000 in the aggregate;
(gf) acquire (by merger, consolidation, or acquisition of stock or assets or otherwise) any corporation, partnership, or other business organization or division thereof;
(hg) except for the capital expenditures referenced in Section 4.12(a) of the Disclosure Schedule and any capital expenditures related to an Emergency or Force Majeure, make any capital expenditure or expenditures, which, individuallyindividually or in the aggregate, is in excess of $500,000 or7,527,400;
(h) amend any Tax Return or settle or compromise any material federal, in the aggregatestate, local, or foreign Tax liability or enter into any agreement or preliminary settlement with any Governmental Entity concerning material Taxes; make or revoke any Tax election except elections consistent with past practices and which are in excess of $2,500,000, except (i) for any capital expenditure required to be made for the items described in Schedule 6.2(h), and (ii) reasonable --------------- expenditures made by any Acquired Company in connection with Tax Returns filed for any emergency tax period ending prior to the Closing Date; file with, or provide to, any Governmental Entity any waiver extending the statutory period for assessment or reassessment of Taxes or any other force majeure events affecting such Acquired Companywaiver of restrictions on assessment or collection of any Taxes;
(i) pay, discharge, or satisfy any material claims, liabilities or obligations (whether accrued, absolute, contingent, unliquidated or otherwise, and whether asserted or unasserted), other than (i) the payment, discharge or satisfaction in the ordinary course of business consistent with past practice, or in accordance with their terms, of liabilities reflected or reserved against in the Combined Financial Statements or incurred since the Balance Sheet Date in the ordinary course of business consistent with past practice, (ii) the settlement of any Proceeding to the extent contemplated in Section 6.2(l), and -------------- (iii) the Acquired Companies may continue to pursue and prosecute the Pending FERC and RRC Proceedings;
(j) amend, modify, or change in any material respect (i) any Commercial Contract that had revenues of $5,000,000 or more in calendar year 1999 and that as of December 31, 1999 had a remaining term of 1 year or greater or (ii) any contract or agreement listed in Schedule 4.13 in accordance with clause (ix) of ------------- Section 4.13; ------------
(k) change in any material respect any of the accounting principles or practices used by it, except for any change required by reason of a concurrent change in generally accepted GAAP;
(j) except in the ordinary course of business consistent with past practice, enter into, renew, extend, materially amend or terminate any Company Contract;
(k) waive, release, assign, settle or compromise any claim, action or proceeding, other than waivers, releases, assignments, settlements or compromises not exceeding the amount for which an accounting principles; andreserve has been established by the Company, or that involve only the payment of monetary damages not in excess of $1,000,000 in the aggregate (excluding amounts to be paid under existing insurance policies) or otherwise pay, discharge or satisfy any claims, liabilities or obligations in excess of such amount, in each case, other than in the ordinary course consistent with past practice;
(l) settle adopt a plan of complete or resolve partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of such entity;
(m) enter into any pending additional contracts or threatened litigation constituting a Proceeding including those listed on Schedule 4.11 agreements that will create any obligation to the Company, the Subsidiaries or Proceeding pending ------------- before FERCthe Buyer after the Closing with respect to, except for or make or agree to make any changes to, any existing Employee Benefit Plans (unless otherwise required by Applicable Law), without Buyer’s prior written consent; or
(n) authorize or propose, or agree in writing or otherwise to take, any of the matters actions described in Schedule 6.2(l) and subject to --------------- the limitation set forth thereinthis Section 7.2.
Appears in 1 contract
Sources: Stock Purchase Agreement (Integrys Energy Group, Inc.)
Restrictions on Certain Actions. Without limiting the generality of -------------------------------
Section 6.1 the foregoing, and except as otherwise expressly provided in this Agreement, prior ----------- to the Closing, Seller the Company shall not permit any Acquired Companynot, without the prior written consent of Buyer, toParent:
(a) amend its charter or bylaws or other governing instrumentsbylaws;
(b) (i) issue, sell, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase, or otherwise) any shares of its capital stock of any class or any other securities or equity equivalents; or (ii) amend in any respect any of the terms of any such securities outstanding as of the date hereof;
(i) split, combine, combine or reclassify any shares of its capital stock; (ii) declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock; (iii) repurchase, redeem or otherwise acquire any of its securities; or (iv) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing a liquidation, dissolution, merger, consolidation, restructuring, recapitalization, recapitalization or other reorganization of any Acquired the Company;
(i) except in the ordinary course of business consistent with past practice, for obligations of another Acquired Company, and for any indebtedness to be repaid prior to Closing in accordance with Section 6.3, create, incur, ----------- guarantee, guarantee or assume any indebtedness for borrowed money or otherwise become liable or responsible for the obligations of any other Personperson; (ii) make any loans, advances, advances or capital contributions to, or investments in, any other Person person; (other than to wholly owned subsidiaries iii) pledge or to another Acquired Company and customary loans or advances to employees in amounts not material to otherwise encumber shares of capital stock of the maker of such loan or advance)Company; or (iiiiv) mortgageexcept in the ordinary course of business consistent with past practice, mortgage or pledge any of its material assets, tangible or intangible, or create or suffer to exist any material lien thereupon;
(i) enter into, adopt or (except as may be required by Applicable Law or except to the extent consistent with amendments or modifications made to similar plans or arrangements of Seller or its corporate parent, enter into, adopt or make any material amendments to law) amend or terminate any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase, pension, retirement, deferred compensation, employment, severance or other employee benefit agreement, trust, plan, fund or other arrangement for the benefit or welfare of any director, officer or employee;
(ii) except for normal increases in the ordinary course of business consistent with past practice that, in the aggregate, do not result in a material increase in benefits or compensation expense to the Acquired Companies, taken as a wholeCompany, increase in any manner the compensation or fringe benefits or compensation to of any director, officer, officer or employee; or (iii) pay to any director, officer, officer or employee any benefit not permitted required by any employee benefit agreement, trust, plan, fund, fund or other arrangement as in effect on the date hereof;
(f) acquire, sell, lease, transfer, transfer or otherwise dispose of, directly or indirectly, any assets outside the ordinary course of business consistent with past practice or any assets that in the aggregate are material to the Acquired Companies considered as a wholeCompany;
(g) acquire (by merger, consolidation, or acquisition of stock or assets or otherwise) any corporation, partnership, partnership or other business organization or division thereof;
(h) make any capital expenditure or expenditures, expenditures which, individually, is in excess of $500,000 25,000 or, in the aggregate, are in excess of $2,500,000, except (i) for any capital expenditure made for the items described in Schedule 6.2(h), and (ii) reasonable --------------- expenditures made by any Acquired Company in connection with any emergency or other force majeure events affecting such Acquired Company250,000;
(i) make any Tax election or settle or compromise any federal, state, local or foreign Tax liability;
(j) pay, discharge, discharge or satisfy any material claims, liabilities or obligations (whether accrued, absolute, contingent, unliquidated or otherwise, and whether asserted or unasserted), other than (i) the payment, discharge or satisfaction in the ordinary course of business consistent with past practice, or in accordance with their terms, of liabilities reflected or reserved against in the Combined Financial Statements or incurred since the Balance Sheet Date in the ordinary course of business consistent with past practice, (ii) the settlement of any Proceeding to the extent contemplated in Section 6.2(l), and -------------- (iii) the Acquired Companies may continue to pursue and prosecute the Pending FERC and RRC Proceedings;
(j) amend, modify, or change in any material respect (i) any Commercial Contract that had revenues of $5,000,000 or more in calendar year 1999 and that as of December 31, 1999 had a remaining term of 1 year or greater or (ii) any contract or agreement listed in Schedule 4.13 in accordance with clause (ix) of ------------- Section 4.13; ------------
(k) change in any material respect any of the accounting principles or practices used by it, except for any change required by reason of a concurrent change in generally accepted accounting principles; and
(l) settle or resolve any pending or threatened litigation constituting a Proceeding including those listed on Schedule 4.11 or Proceeding pending ------------- before FERC, except for the matters described in Schedule 6.2(l) and subject to --------------- the limitation set forth therein.,
Appears in 1 contract
Sources: Stock Acquisition Agreement and Plan of Merger (Crescent Operating Inc)
Restrictions on Certain Actions. Without limiting the generality or effect of -------------------------------
Section 6.1 and 5.1, except as otherwise expressly provided described in this AgreementSection 5.2 of the Disclosure Schedule, prior ----------- to the ClosingClosing HPC and the ▇▇▇▇▇▇ Companies will not, Seller shall and HPC will cause each of its Subsidiaries and HPC Holdco not permit to, take any Acquired Company, of the following actions without the prior written consent of Buyer, toParent:
(a) except as herein contemplated, amend its charter or bylaws or other governing instrumentsGoverning Documents;
(b) except as herein contemplated, issue, sell or deliver any ▇▇▇▇ Securities or Subsidiary Securities;
(c) (i) issue, sell, or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase, or otherwise) any shares of its capital stock of any class or any other securities or equity equivalents; or (ii) amend any of the terms of any such securities outstanding as of the date hereof;
(i) split, combine, or reclassify any shares of its capital stock; (ii) declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock; (iii) repurchase, redeem or otherwise acquire any of its securities; or (iv) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing a liquidation, dissolution, merger, consolidation, restructuring, recapitalization, or other reorganization of any Acquired Company;
(i) except in the ordinary course of business consistent with past practice, for obligations of another Acquired Company, and for any indebtedness to be repaid prior to Closing in accordance with Section 6.3, create, incur, ----------- guarantee, guarantee or assume any indebtedness for borrowed money (other than borrowings under existing credit facilities in the ordinary course of business) or otherwise become liable or responsible for the obligations of any other Person; , (ii) make any loans, advances, advances or capital contributions to, or investments in, any other Person (other than to wholly owned subsidiaries or to another Acquired Company and customary loans or advances to employees in amounts not material to the maker of such loan or advance); or Person, (iii) mortgagepledge or otherwise encumber shares of capital stock or other equity securities of HPC, HHEC or HHPC, (iv) mortgage or pledge any of its material assets, tangible or intangible, or create or suffer to exist any material lien thereuponLien thereupon (except for customary Liens contained in or arising under joint operating (or similar) agreements binding on HPC, HHEC, HHPC or a Subsidiary of HPC with respect to amounts not yet due or not yet delinquent and except for statutory Liens for amounts not yet due or not yet delinquent), or (v) declare, set aside or pay any dividend or make any other distribution to stockholders;
(i) except as may be required by Applicable applicable Law or except to the extent consistent with amendments or modifications made to similar plans or arrangements terms of Seller or its corporate parentthe applicable Employee Benefit Plan, enter into, adopt or make amend in any material amendments to respect or terminate any Employee Benefit Plan or adopt any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase, pension, retirement, deferred compensation, employment, severance or other employee benefit agreement, trust, plan, fund or other arrangement for the benefit or welfare of any director, officer or employee;
, (ii) except for normal increases in the ordinary course of business consistent with past practice that, in the aggregate, do not result in a material materially increase in any manner the compensation or fringe benefits of any director or compensation expense to the Acquired Companies, taken as a whole, increase the benefits or compensation to any director, officer, or employee; or (iii) pay to any director, officer, director or employee officer any benefit not permitted required by any employee benefit agreement, trust, plan, fund, Employee Benefit Plan or other arrangement agreement as in effect on the date hereof;
(fe) acquire, sell, lease, transfer, transfer or otherwise dispose of, directly or indirectly, any assets outside assets, except for (i) sales of Hydrocarbons or entering into oil and gas leases, in each case in the ordinary course of business business, consistent with past practice practices, (ii) sales of inventory and excess or any obsolete assets that in the aggregate are material to ordinary course of business, (iii) acquisitions, sales, leases, transfers or dispositions of assets not exceeding $10,000,000 in the Acquired Companies considered as a wholeaggregate, and (iv) the acquisitions contemplated by the O&G Roll-Up;
(gf) except as herein contemplated, acquire (by merger, consolidation, consolidation or acquisition of stock or assets or otherwise) any corporation, partnership, partnership or other business organization or division thereof;
(hg) except for capital expenditures related to an Emergency or event of Force Majeure, make any capital expenditure or expenditures, which, individually, which is in excess of the amount contemplated by the 2008 capital expenditures budget included in the VDR by $500,000 or, 5,000,000 individually or $15,000,000 in the aggregate, ;
(h) make or revoke any Tax election except elections consistent with past practices and which are in excess of $2,500,000, except (i) for any capital expenditure required to be made for the items described in Schedule 6.2(h), and (ii) reasonable --------------- expenditures made by any Acquired Company in connection with Tax Returns filed for any emergency or other force majeure events affecting such Acquired Companytax period ending prior to the Effective Time;
(i) pay, discharge, or satisfy any material claims, liabilities or obligations (whether accrued, absolute, contingent, unliquidated or otherwise, and whether asserted or unasserted), other than (i) the payment, discharge or satisfaction in the ordinary course of business consistent with past practice, or in accordance with their terms, of liabilities reflected or reserved against in the Combined Financial Statements or incurred since the Balance Sheet Date in the ordinary course of business consistent with past practice, (ii) the settlement of any Proceeding to the extent contemplated in Section 6.2(l), and -------------- (iii) the Acquired Companies may continue to pursue and prosecute the Pending FERC and RRC Proceedings;
(j) amend, modify, or change in any material respect (i) any Commercial Contract that had revenues of $5,000,000 or more in calendar year 1999 and that as of December 31, 1999 had a remaining term of 1 year or greater or (ii) any contract or agreement listed in Schedule 4.13 in accordance with clause (ix) of ------------- Section 4.13; ------------
(k) change in any material respect any of the accounting principles or practices used by it, except for any change required by reason of a concurrent change in generally accepted Income Tax Basis;
(j) except in the ordinary course of business consistent with past practice, enter into, renew, extend, amend in any material respect or terminate any Material Contract;
(k) waive, release, assign, settle or compromise any claim, action or proceeding, other than waivers, releases, assignments, settlements or compromises not exceeding the amount for which an accounting principles; andreserve has been established by HPC, HHEC or HHPC, or that involve only the payment of monetary damages not in excess of $5,000,000 individually or $10,000,000 in the aggregate (excluding amounts to be paid under insurance policies);
(l) settle except as herein contemplated, adopt a plan of complete or resolve partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of such entity;
(m) authorize or propose, or agree, in writing or otherwise, to take any pending or threatened litigation constituting a Proceeding including those listed on Schedule 4.11 or Proceeding pending ------------- before FERC, except for of the matters actions described in Schedule 6.2(lthis Section 5.2; or
(n) and subject intentionally take or omit any action that would (i) cause any representation or warranty made by the HPC, HHEC or HHPC in this Agreement to --------------- the limitation set forth thereinbe untrue, (ii) result in a breach of any covenant made by HPC, HHEC or HHPC in this Agreement, or (iii) have a Material Adverse Effect.
Appears in 1 contract
Restrictions on Certain Actions. Without limiting the generality of -------------------------------
Section 6.1 and except as otherwise expressly provided in this Agreement, prior ----------- Prior to the ClosingClosing Date, Seller the Company shall not, and shall not permit any Acquired CompanySubsidiary, without the prior written consent of Buyer, to:
(a) amend its charter assign, transfer, grant, create, incur or bylaws or other governing instrumentsassume any Lien that will not be discharged pursuant to the Plan;
(b) except with respect to the Transferred Subsidiaries or as otherwise specifically contemplated in this Agreement, sell, transfer or liquidate any assets unless such sale, transfer or liquidation is in the Ordinary Course of Business or is otherwise permitted under Section 6.4 of the Credit Agreement;
(c) amend its Organizational Documents;
(d) (i) issuesplit, sell, combine or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase, or otherwise) reclassify any shares of its capital stock of any class or any other securities or equity equivalents; or (ii) amend any of the terms of any such securities outstanding as of the date hereof;
(i) split, combine, or reclassify any shares of its capital stock; (ii) declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stockstock or any other securities or equity equivalents; (iii) repurchase, redeem or otherwise acquire any of its securities; or (iv) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing a liquidation, dissolution, merger, consolidation, restructuring, recapitalization, or other reorganization reorganization; or (iv) repay intercompany Indebtedness owed to Affiliates except in payment of any Acquired Companyservices rendered;
(i) except in the ordinary course of business consistent with past practice, for obligations of another Acquired Company, and for any indebtedness to be repaid prior to Closing in accordance with Section 6.3, create, incur, ----------- guarantee, or assume any indebtedness for borrowed money or otherwise become liable or responsible for the obligations of any other Person; (ii) make any loans, advances, or capital contributions to, or investments in, any other Person (other than to wholly owned subsidiaries or to another Acquired Company and customary loans or advances to employees in amounts not material to the maker of such loan or advance); or (iii) mortgage, or pledge any of its material assets, tangible or intangible, or create or suffer to exist any material lien thereupon;
(ie) except as may be required by Applicable Law applicable Laws or except to the extent consistent with amendments or modifications made to similar plans or arrangements of Seller or its corporate parentas permitted by subjection (j) below, enter into, adopt or make any material amendments to or terminate any collective bargaining agreement, bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase, pension, retirement, deferred compensation, employment, severance or other employee benefit agreement, trust, plan, fund or other arrangement for the benefit or welfare of any director, officer or employee;
(iif) except for normal increases fail to make capital expenditures in the ordinary course Ordinary Course of business consistent with past practice that, in the aggregate, do not result in a material increase in benefits or compensation expense to the Acquired Companies, taken as a whole, increase the benefits or compensation to any director, officer, or employee; or (iii) pay to any director, officer, or employee any benefit not permitted by any employee benefit agreement, trust, plan, fund, or other arrangement as in effect on the date hereof;
(f) acquire, sell, lease, transfer, or otherwise dispose of, directly or indirectly, any assets outside the ordinary course of business consistent with past practice or any assets that in the aggregate are material to the Acquired Companies considered as a wholeBusiness;
(g) acquire (by mergerenter into, consolidationassume, amend, modify, cancel, waive, assign any rights or acquisition obligations under or otherwise change in any respect any Material Contract other than in the Ordinary Course of stock or assets or otherwise) any corporation, partnership, or other business organization or division thereofBusiness;
(h) make enter into any capital expenditure or expendituresContract with any Person (including an Affiliate), which, individually, is in excess of $500,000 or, other than Contracts entered into in the aggregateOrdinary Course of Business, are in excess involving more than $50,000 per Contract or series of $2,500,000, except (i) for any capital expenditure made for the items described in Schedule 6.2(h), and (ii) reasonable --------------- expenditures made by any Acquired Company in connection with any emergency or other force majeure events affecting such Acquired Companyrelated Contracts;
(i) pay, discharge, or satisfy any material claims, liabilities or obligations (whether accrued, absolute, contingent, unliquidated or otherwise, and whether asserted or unasserted), other than (i) the payment, discharge or satisfaction in the ordinary course of business consistent with past practice, or in accordance with their terms, of liabilities reflected or reserved against in the Combined Financial Statements or incurred since the Balance Sheet Date in the ordinary course of business consistent with past practice, (ii) the settlement of any Proceeding to the extent contemplated in Section 6.2(l), and -------------- (iii) the Acquired Companies may continue to pursue and prosecute the Pending FERC and RRC Proceedings;
(j) amend, modify, or change in any material respect (i) any Commercial Contract that had revenues of $5,000,000 or more in calendar year 1999 and that as of December 31, 1999 had a remaining term of 1 year or greater or (ii) any contract or agreement listed in Schedule 4.13 in accordance with clause (ix) of ------------- Section 4.13; ------------
(k) change in any material respect any of the accounting principles or practices used by it, except for any change required by reason U.S. GAAP, or write-down the value of a concurrent change any assets, revalue any asset or write-off as uncollectible any receivables except in generally accepted accounting principles; andthe Ordinary Course of Business or as required by U.S. GAAP;
(lj) increase any compensation (including salary, bonuses, benefits and other forms of current and deferred compensation) payable to any officer, director or employee or group of officers, directors or employees, other than (A) annual salary increases or bonuses made in the Ordinary Course of Business, but in no event greater than 5% over the prior year’s salary and bonus for any one individual or (B) increases in compensation of any employee reasonably determined by the Company as necessary for the continued and unimpaired operation of the Nitrogen Business; provided, however, that the aggregate increases in employee compensation pursuant to (B) shall not exceed $100,000 in the aggregate; or
(k) settle any matter whereby the Company or resolve any pending of its Subsidiaries will be required to pay consideration in any form in excess of $100,000 over any insurance proceeds received by or threatened litigation constituting a Proceeding including those listed on Schedule 4.11 due to the Company or Proceeding pending ------------- before FERC, except for the matters described in Schedule 6.2(l) and subject any of its Subsidiaries with respect to --------------- the limitation set forth thereinsuch matter.
Appears in 1 contract
Restrictions on Certain Actions. Without limiting the generality of -------------------------------
Section 6.1 the foregoing, and except as otherwise expressly provided in this Agreement, prior ----------- during the period from the date of this Agreement to the ClosingClosing Date, Seller the Company has not taken and shall not permit take, consent to or allow, nor shall Seller cause or allow the Company to take or consent to, any Acquired Companyof the following actions, without the prior written consent of BuyerBuyer (which consent shall not be unreasonably withheld, to:conditioned or delayed):
(a) amend its charter or bylaws or other governing instrumentsthe applicable Governing Documents;
(b) (i) issue, sell, or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase, or otherwise) any shares of its capital stock membership interests of any class or any other securities or equity equivalents; or (ii) amend any of equivalents in the terms of any such securities outstanding as of the date hereofCompany;
(c) (i) split, combine, or reclassify any shares of its capital stock; (ii) declare, set aside aside, or pay any dividend or other distribution (whether in cash, stock stock, or property or any combination thereof) in respect of its capital stockmembership interests; (iiiii) repurchase, redeem redeem, or otherwise acquire any of its securities; or (iviii) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing a liquidation, dissolution, merger, consolidation, conversion, restructuring, recapitalization, or other reorganization or winding up of any Acquired the Company;
(d) (i) except for loans under the Credit Facilities and intercompany loans from or to the Company or its Affiliates in the ordinary course of business consistent with past practice, for obligations of another Acquired Company, and for any indebtedness to that will be repaid eliminated at or prior to Closing in accordance with Section 6.3Closing, create, incur, ----------- guarantee, or assume any indebtedness for borrowed money Indebtedness or otherwise become liable or responsible for the obligations of any other Person; (ii) make any loans, advances, or capital contributions to, or investments in, any other Person Person; (other than to wholly owned subsidiaries iii) pledge or to another Acquired Company and customary loans or advances to employees in amounts not material to otherwise encumber shares of membership interests of the maker of such loan or advance)Company; or (iiiiv) mortgage, mortgage or pledge any of its material assets, tangible or intangible, or create or suffer to exist any material lien thereuponLien thereupon (except for Permitted Liens);
(e) except as in connection with the releases contemplated by Section 7.8 or in the ordinary course of business, (i) enter into, adopt, or (except as may be required by Applicable Law or except to the extent consistent with amendments or modifications made to similar plans or arrangements of Seller or its corporate parent, enter into, adopt or make any material amendments to Law) amend or terminate any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase, pension, retirement, deferred compensation, employment, severance severance, or other employee benefit agreement, trust, plan, fund fund, or other arrangement for the benefit or welfare of any director, manager or officer or employee;
Employee; (ii) except for normal increases in the ordinary course of business consistent with past practice that, in the aggregate, do not result in a material increase in any manner the compensation or fringe benefits of any manager or compensation expense to the Acquired Companies, taken as a whole, increase the benefits officer or compensation to any director, officer, or employeeEmployee; or (iii) pay to any director, officer, manager or employee officer or Employee any benefit not permitted required by any employee benefit agreement, trust, plan, fund, or other arrangement as in effect on the date hereof;
(f) hire or engage any employee of the Company (as employer);
(g) acquire, sell, lease, transfer, or otherwise dispose of, directly or indirectly, any assets, except for (i) entering into right-of-way agreements, easements, or options in the ordinary course of business, and (ii) sales or exchanges of inventory and excess or obsolete assets outside in the ordinary course of business consistent with past practice or any assets that personal property in the aggregate are material to ordinary course of business that is either replaced by equivalent property or assets or normally consumed in the Acquired Companies considered as a wholeoperation of the Company’s business;
(gh) acquire (by merger, consolidation, or acquisition of stock or assets or otherwise) any corporation, partnership, or other business organization or division thereof;
(hi) except for any capital expenditures related to (i) the construction of pipeline or facilities associated therewith or the attainment of easements, rights-of-way, or options in the ordinary course of business, or (ii) an Emergency, make any single capital expenditure or expenditures, which, individually, which individually is in excess of One Million Dollars ($500,000 or, in the aggregate, are in excess of $2,500,000, except (i) for any capital expenditure made for the items described in Schedule 6.2(h1,000,000), and (ii) reasonable --------------- expenditures made by any Acquired Company in connection with any emergency or other force majeure events affecting such Acquired Company;
(ij) pay, discharge, or satisfy any material claims, liabilities liabilities, or obligations (whether accrued, absolute, contingent, unliquidated unliquidated, or otherwise, and whether asserted or unasserted), other than (i) the payment, discharge discharge, or satisfaction in the ordinary course of business consistent with past practice, or in accordance with their terms, of liabilities reflected or reserved against in terms and the Combined Financial Statements or incurred since the Balance Sheet Date in the ordinary course of business consistent with past practice, (ii) the settlement payment of any Proceeding fee to terminate the extent contemplated in Section 6.2(l), and -------------- (iii) the Acquired Companies may continue to pursue and prosecute the Pending FERC and RRC ProceedingsCredit Facilities;
(jk) enter into any lease, contract, agreement, commitment, arrangement, right-of-way, easement, option, or transaction that would constitute a Contract;
(l) amend, modify, or change in any material respect (i) any Commercial Contract that had revenues of $5,000,000 or more in calendar year 1999 and that as of December 31, 1999 had a remaining term of 1 year or greater or (ii) any contract or agreement listed in Schedule 4.13 in accordance with clause (ix) of ------------- Section 4.13; ------------Contract;
(km) change in any material respect any of the Tax or accounting principles or practices used by it, except for any change required by reason of a concurrent change in generally accepted accounting principlesGAAP and notice of which is given in writing by the Company to Buyer; andor
(ln) settle authorize or resolve propose, or agree in writing or otherwise to take, any pending or threatened litigation constituting a Proceeding including those listed on Schedule 4.11 or Proceeding pending ------------- before FERC, except for of the matters actions described in Schedule 6.2(l) and subject to --------------- the limitation set forth thereinthis Section 7.6.
Appears in 1 contract
Sources: Membership Interest Purchase and Sale Agreement (Penn Virginia Resource Partners L P)
Restrictions on Certain Actions. Without limiting the generality of -------------------------------
Section 6.1 the foregoing, and except as otherwise expressly provided in this Agreement, prior ----------- to the Closing, Seller shall not permit any Acquired CompanySellers will not, without the prior written consent of BuyerBuyer (which will not be unreasonably withheld, todelayed or conditioned), amend the Governing Documents of any Company or allow any Company to take, consent to or allow any of the following actions:
(a) amend its charter or bylaws or other governing instruments;
(b) (i) issue, sell, or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase, or otherwise) any shares of its capital stock partnership interests of any class or any other securities or equity equivalents; or (ii) amend equivalents in any of the terms of any such securities outstanding as of the date hereofCompany;
(i) split, combine, or reclassify any shares of its capital stock; (ii) declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock; (iii) repurchase, redeem or otherwise acquire any of its securities; or (ivb) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing a liquidation, dissolution, merger, consolidation, conversion, restructuring, recapitalization, or other reorganization of any Acquired Company;
(c) other than any of the following that will terminate at Closing, (i) except in the ordinary course of business consistent with past practice, for obligations of another Acquired Company, and for any indebtedness to be repaid prior to Closing in accordance with Section 6.3, create, incur, ----------- guarantee, or assume any indebtedness for borrowed money or otherwise become liable or responsible for the obligations of any other Person; (ii) make any loans, advances, or capital contributions to, or investments in, any other Person Person; (iii) pledge or otherwise encumber the Interests or other than to wholly owned subsidiaries or to another Acquired Company and customary loans or advances to employees in amounts not material to the maker equity securities of such loan or advance)any Company; or (iiiiv) mortgage, mortgage or pledge any of its material assets, tangible or intangible, or create or suffer to exist any material lien thereuponLien thereupon (other than Permitted Liens) or on the Assigned Assets;
(d) (i) enter into, adopt, or (except as may be required by Applicable Law or except to the extent consistent with amendments or modifications made to similar plans or arrangements of Seller or its corporate parent, enter into, adopt or make any material amendments to Laws) amend or terminate any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase, pension, retirement, deferred compensation, employment, severance severance, or other employee benefit agreement, trust, plan, fund fund, or other arrangement for the benefit or welfare of any director, officer officer, or employee;
; (ii) except for normal increases in the ordinary course of business consistent with past practice that, in the aggregate, do not result in a material increase in any manner the compensation or fringe benefits or compensation expense to the Acquired Companies, taken as a whole, increase the benefits or compensation to of any director, officer, or employee; or (iii) pay to any director, officer, or employee any benefit not permitted required by any employee benefit agreement, trust, plan, fund, or other arrangement as in effect on the date hereof;
(fe) acquire, sell, lease, transfer, or otherwise dispose of, directly or indirectly, any assets outside or allow its Affiliates to do any of the ordinary course foregoing with respect to any of business consistent with past practice or any assets that the Assigned Assets, except for (i) sales of Hydrocarbons in the aggregate are material Ordinary Course of Business, (ii) sales to Persons other than Sellers or their Affiliates of inventory and excess or obsolete assets in the Acquired Companies considered as a wholeOrdinary Course of Business or personal property in the Ordinary Course of Business that is either replaced by equivalent property or normally consumed in the operation of that Company’s business and (iii) the sale or other disposition of the Excluded Assets pursuant to Section 8.14;
(gf) acquire (by merger, consolidation, or acquisition of stock or assets or otherwise) any corporation, partnership, or other business organization or division thereof;
(hg) make enter into any capital expenditure lease, contract, agreement, commitment, arrangement, right of way, easement or expenditurestransaction outside the Ordinary Course of Business, whichor any lease, individuallycontract, is in excess of $500,000 oragreement, in the aggregatecommitment, are in excess of $2,500,000arrangement, except or transaction (i) which grants or creates any option, right of first refusal, call, put or other preferential right in favor of any third Person, (ii) for the purchase, sale, exchange, gathering, processing, treating and transportation of Hydrocarbons having a term of more than 12 months, (iii) except for any capital expenditure made for that terminate at Closing, which would constitute a Company Contract if in existence on the items date of this Agreement, or (iv) enter into any contract, agreement or understanding with Seller or any of its Affiliates that would survive Closing; provided that Buyer’s consent is not required if a Company enters into a renewal of any of the foregoing described in Schedule 6.2(hsubsections (ii) or (iii) of this Section 7.2(g) if (A) the structure of such agreement is not different from the previous agreement (for example, entering into a transportation agreement when the previous agreement was a purchase/sale agreement would constitute a different structure and would require Buyer’s consent), and (iiB) reasonable --------------- expenditures made by the margin reasonably expected to be generated under the renewal agreement is no more than $50,000 per year less than the previous agreement;
(h) amend, modify, extend or change, or waive, release, grant, close out or transfer any Acquired material rights under, any Company Contract; provided that Buyer’s consent is not required if a Company enters into any of the foregoing described in connection with this Section 7.2(h) if (A) the structure of such agreement is not substantially changed (for example, modifying the agreement to be a transportation agreement instead of a purchase/sale agreement would constitute a different structure and would require Buyer’s consent), and (B) the margin reasonably expected to be generated under any emergency or other force majeure events affecting of the foregoing described in this Section 7.2(h) is no more than $50,000 per year less than before such Acquired Companyarrangement;
(i) pay, discharge, declare any dividends or satisfy any material claims, liabilities or obligations (whether accrued, absolute, contingent, unliquidated or otherwise, and whether asserted or unasserted), other than (i) distributions that are payable after the payment, discharge or satisfaction in the ordinary course of business consistent with past practice, or in accordance with their terms, of liabilities reflected or reserved against in the Combined Financial Statements or incurred since the Balance Sheet Date in the ordinary course of business consistent with past practice, (ii) the settlement of any Proceeding to the extent contemplated in Section 6.2(l), and -------------- (iii) the Acquired Companies may continue to pursue and prosecute the Pending FERC and RRC ProceedingsEffective Time;
(j) enter into, amend, modify, extend or change in any material respect (i) any Commercial Contract that had revenues of $5,000,000 or more in calendar year 1999 and that as of December 31, 1999 had a remaining term of 1 year or greater or (ii) any contract or agreement listed in Schedule 4.13 in accordance with clause (ix) of ------------- Section 4.13Seller ▇▇▇▇▇▇; ------------or
(k) change agree in any material respect writing or otherwise to take any of the accounting principles or practices used by it, except for any change required by reason of a concurrent change in generally accepted accounting principles; and
(l) settle or resolve any pending or threatened litigation constituting a Proceeding including those listed on Schedule 4.11 or Proceeding pending ------------- before FERC, except for the matters actions described in Schedule 6.2(l) and subject to --------------- the limitation set forth thereinthis Section 7.2.
Appears in 1 contract
Sources: Partnership Interest Purchase and Sale Agreement (Crosstex Energy Lp)
Restrictions on Certain Actions. Without limiting the generality of -------------------------------
Section 6.1 the foregoing, and except as otherwise expressly provided in this AgreementAgreement or disclosed in Section 7.2 of the Company Disclosure Schedule, prior ----------- to the Closing, Seller neither the Company nor the Subsidiary shall not permit take, consent to or allow any Acquired Companyof the following actions, without the prior written consent of Buyer, to:
(a) amend its charter or bylaws or other governing instrumentsGoverning Documents;
(b) (i) issue, sell, or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase, or otherwise) any shares of its capital common stock of any class or any other securities or equity equivalents; equivalents in the Company or (ii) amend any of the terms of any such securities outstanding as of the date hereofSubsidiary;
(c) (i) split, combine, or reclassify any shares of its capital stock; (ii) declare, set aside aside, or pay any dividend or other distribution (whether in cash, stock stock, or property or any combination thereof) in respect of its capital common stock; (iiiii) repurchase, redeem redeem, or otherwise acquire any of its securities; or (iviii) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing a liquidation, dissolution, merger, consolidation, conversion, restructuring, recapitalization, or other reorganization of any Acquired Companythe Company or the Subsidiary;
(d) (i) except in the ordinary course of business consistent with past practice, for obligations of another Acquired Company, and for any indebtedness to be repaid prior to Closing in accordance with Section 6.3, create, incur, ----------- guarantee, or assume any indebtedness for borrowed money or otherwise become liable or responsible for the obligations of any other Person; (ii) make any loans, advances, or capital contributions to, or investments in, any other Person Person; (iii) pledge or otherwise encumber shares of common stock, capital stock or other than to wholly owned subsidiaries equity securities of the Company or to another Acquired Company and customary loans or advances to employees in amounts not material to the maker of such loan or advance)Subsidiary; or (iiiiv) mortgage, mortgage or pledge any of its material assets, tangible or intangible, or create or suffer to exist any material lien thereuponLien thereupon (except for customary Liens contained in or arising under joint operating (or similar) agreements binding on the Company or the Subsidiary with respect to amounts not yet due or not yet delinquent and except for statutory Liens for amounts not yet due or not yet delinquent);
(e) (i) enter into, adopt, or (except as may be required by Applicable Law or except to the extent consistent with amendments or modifications made to similar plans or arrangements of Seller or its corporate parent, enter into, adopt or make any material amendments to law) amend or terminate any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase, pension, retirement, deferred compensation, employment, severance severance, or other employee benefit agreement, trust, plan, fund fund, or other arrangement for the benefit or welfare of any director, officer officer, or employee;
; (ii) except for normal increases in the ordinary course of business consistent with past practice that, in the aggregate, do not result in a material increase in any manner the compensation or fringe benefits or compensation expense to the Acquired Companies, taken as a whole, increase the benefits or compensation to of any director, officer, or employee; or (iii) pay to any director, officer, or employee any benefit not permitted required by any employee benefit agreement, trust, plan, fund, or other arrangement as in effect on the date hereof;
(f) acquire, sell, lease, transfer, or otherwise dispose of, directly or indirectly, any assets outside assets, except for (i) sales of Hydrocarbons in the ordinary course of business consistent with past practice practice, (ii) sales of inventory and excess or any obsolete assets that in the aggregate are material ordinary course of business or personal property in the ordinary course of business that is either replaced by equivalent property or normally consumed in the operation of the Company's business and (iii) pursuant to Section 8.15, the Acquired Companies considered as a wholesale of the Excluded Assets;
(g) acquire (by merger, consolidation, or acquisition of stock or assets or otherwise) any corporation, partnership, or other business organization or division thereof;
(h) except for the capital expenditures referenced in Section 4.14(a) of the Company Disclosure Schedule, make any capital expenditure or expenditures, expenditures which, individually, is in excess of $500,000 50,000 or, in the aggregate, are in excess of $2,500,000, except (i) for any capital expenditure made for the items described in Schedule 6.2(h), and (ii) reasonable --------------- expenditures made by any Acquired Company in connection with any emergency or other force majeure events affecting such Acquired Company500,000;
(i) amend any Tax Return or settle or compromise any federal, state, local, or foreign Tax liability or enter into any agreement or preliminary settlement with any Governmental Entity concerning Taxes; make any Tax election except elections consistent with past practices and which are required to be made in connection with Tax Returns filed for any tax period ending prior to the Closing Date; file with, or provide to, any Governmental Entity any waiver extending the statutory period for assessment or reassessment of Taxes or any other waiver of restrictions on assessment or collection of any Taxes;
(j) pay, discharge, or satisfy any material claims, liabilities liabilities, or obligations (whether accrued, absolute, contingent, unliquidated unliquidated, or otherwise, and whether asserted or unasserted), other than (i) the payment, discharge discharge, or satisfaction in the ordinary course of business consistent with past practicein an amount not to exceed $50,000, or in accordance with their terms, of liabilities reflected or reserved against in the Combined Financial Statements or incurred since the Balance Sheet Date December 31, 2004 in the ordinary course of business consistent with past practice;
(k) enter into any lease, contract, agreement, commitment, arrangement, or transaction outside the ordinary course of business consistent with past practice, or any lease, contract, agreement, commitment, arrangement, or transaction (i) which grants or creates any area of mutual interest, consent to assignment, option, right of first refusal, call, put or other preferential right in favor of any third party, (ii) for the settlement sale, exchange, gathering, processing and transportation of any Proceeding to the extent contemplated in Section 6.2(l)Hydrocarbons having a term of more than one month, and -------------- or (iii) the Acquired Companies may continue to pursue and prosecute the Pending FERC and RRC Proceedingswhich would constitute a Company Contract;
(jl) amend, modify, or change in any material respect (i) any Commercial Company Contract that had revenues of $5,000,000 or more in calendar year 1999 Oil and that as of December 31, 1999 had a remaining term of 1 year or greater or (ii) any contract or agreement listed in Schedule 4.13 in accordance with clause (ix) of ------------- Section 4.13; ------------Gas Contract;
(km) change in any material respect any of the accounting principles or practices used by it, except for any change required by reason of a concurrent change in generally accepted accounting principles; andGAAP and notice of which is given in writing by the Company to Buyer;
(ln) settle agree or resolve consent to the establishment of any pending unit, the change in any existing unit (or threatened litigation constituting a Proceeding including those listed on Schedule 4.11 any participating area therein), or Proceeding pending ------------- before FERCthe entry into of any pooling or unitization agreement after the date hereof; or
(o) authorize or propose, except for or agree in writing or otherwise to take, any of the matters actions described in Schedule 6.2(l) and subject to --------------- the limitation set forth thereinthis Section 7.2.
Appears in 1 contract
Restrictions on Certain Actions. Without limiting the generality of -------------------------------
Section 6.1 and except Except as otherwise expressly provided in this AgreementAgreement (including without limitation Sections 10.3, 10.4, 10.5 and 10.7), prior ----------- to the ClosingEffective Time, Seller such Subject Partnership (including, in the case of RRC, and to the extent applicable, with respect to or affecting the Unaffiliated ORRI) shall not permit any Acquired Companynot, without the prior written consent of Buyerthe other two Subject Partnerships, towhich consent shall not be unreasonably withheld:
(a) amend its charter certificate of partnership, partnership agreement or bylaws or other similar governing instrumentsdocuments;
(b) (i) issue, sell, or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase, or otherwise) any shares of its capital stock of any class or any other securities or equity equivalents; or (ii) amend any of the terms of any such securities outstanding as of the date hereof;
(i) split, combine, or reclassify any shares of its capital stock; (ii) declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock; (iii) repurchase, redeem or otherwise acquire any of its securities; or (iv) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing a liquidation, dissolution, merger, consolidation, restructuring, recapitalization, or other reorganization of any Acquired Company;
(i) except in the ordinary course of business consistent with past practice, for obligations of another Acquired Company, and for any indebtedness to be repaid prior to Closing in accordance with Section 6.3, create, incur, ----------- guarantee, guarantee or assume any indebtedness for borrowed money or otherwise become liable or responsible for the obligations of any other Person; person in an aggregate amount in excess of $100,000, (ii) make any loans, advances, advances or capital contributions to, or investments in, any other Person (other than to wholly owned subsidiaries or to another Acquired Company and customary loans or advances to employees in amounts not material to the maker of such loan or advance); person, or (iii) mortgage, mortgage or pledge any of its material assets, tangible or intangible, or create or suffer to exist any material lien thereuponthereupon (except for statutory liens (including materialmen's, mechanic's, repairmen's, landlord's and other similar liens) arising in connection with the ordinary course of business securing payments not yet due and payable or, if due and payable, the validity of which is being contested in good faith by appropriate legal proceedings and for which adequate reserves have been set aside);
(c) (i) enter into, adopt or (except as may be required by Applicable Law or except to the extent consistent with amendments or modifications made to similar plans or arrangements of Seller or its corporate parent, enter into, adopt or make any material amendments to law) amend or terminate any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase, pension, retirement, deferred compensation, employment, severance or other employee benefit agreement, trust, plan, fund or other arrangement for the benefit or welfare of any director, officer or employee;
, (ii) except for normal increases in the ordinary course of business consistent with past practice that, in the aggregate, do not result in a material increase in benefits or compensation expense to the Acquired Companies, taken as a wholesuch Subject Partnership, increase in any manner the compensation or fringe benefits or compensation to of any director, officer, officer or employee; employee of such Subject Partnership or (iii) pay to any director, officer, officer or employee of such Subject Partnership any benefit not permitted required by any employee benefit agreement, trust, plan, fund, fund or other arrangement as in effect on the date hereof;
(fd) acquire, sell, lease, transfer, transfer or otherwise dispose of, directly or indirectly, any assets outside other than those which are (x) in the ordinary course of business consistent with past practice and (y) in any individual transaction (or any assets that in the aggregate series of related transactions) are material to the Acquired Companies considered as a wholeless than $100,000;
(ge) acquire (by merger, consolidation, consolidation or acquisition of stock or assets or otherwise) any corporation, partnership, partnership or other business organization or division thereof;
(hf) make any capital expenditure or expenditures, expenditures which, individually, is in excess of $500,000 or, in the aggregate, are in excess of $2,500,000, except (i) for any capital expenditure made for the items described in Schedule 6.2(h), and (ii) reasonable --------------- expenditures made by any Acquired Company in connection with any emergency or other force majeure events affecting such Acquired Company100,000;
(ig) pay, discharge, discharge or satisfy any material claims, liabilities or obligations (whether accrued, absolute, contingent, unliquidated or otherwise, and whether asserted or unasserted), other than (i) the payment, discharge or satisfaction in the ordinary course of business consistent with past practice, or in accordance with their terms, of liabilities reflected or reserved against in the Combined Financial Statements of such Subject Partnership, or incurred since the date of the Latest Balance Sheet Date of such Subject Partnership in the ordinary course of business consistent with past practice, (ii) the settlement of any Proceeding to the extent contemplated in Section 6.2(l), and -------------- (iii) the Acquired Companies may continue to pursue and prosecute the Pending FERC and RRC Proceedings;
(jh) enter into any material lease, contract, agreement, commitment, arrangement or transaction outside the ordinary course of business consistent with past practice;
(i) amend, modify, or change in any material respect (i) any Commercial Contract that had revenues existing lease, contract, or agreement, other than in the ordinary course of $5,000,000 or more in calendar year 1999 and that as of December 31, 1999 had a remaining term of 1 year or greater or (ii) any contract or agreement listed in Schedule 4.13 in accordance business consistent with clause (ix) of ------------- Section 4.13; ------------past practice;
(kj) change in any material respect any of the accounting principles or practices used by it, except for any change required by reason of a concurrent change in generally accepted accounting principles; andGAAP and notice of which is given in writing by such Subject Partnership to the other two Subject Partnerships;
(k) waive, release, grant, or transfer any rights of value, other than in the ordinary course of business consistent with past practice;
(l) settle take any action that would, or resolve that reasonably could be expected to, result in any pending of the representations and warranties of such Subject Partnership set forth in this Agreement becoming untrue or threatened litigation constituting any material breach of this Agreement; 44
(m) enter into any hedging, swap, fixed price sale or purchase (having a Proceeding including those listed on Schedule 4.11 term of more than 90 days) or Proceeding pending ------------- before FERCother derivative contract;
(n) accelerate collection of any notes or accounts receivable generated by the Subject Partnership or its business by using collections efforts beyond what would have been used in the ordinary course of business;
(o) delay payment of any account payable or other liability of such Subject Partnership relating to its business beyond its due date or the date when such liability would have been paid in the ordinary course of the Subject Partnership's business consistent with past practice; or
(p) authorize or propose, except for or agree in writing or otherwise to take, any of the matters actions described in Schedule 6.2(l) and subject to --------------- the limitation set forth thereinthis Section 10.2.
Appears in 1 contract
Restrictions on Certain Actions. Without limiting the generality of -------------------------------
Section 6.1 5.8, and except as required by Applicable Law or as otherwise expressly provided in this Agreement, prior ----------- to the Closing, the Seller shall not permit any Acquired the Company, without the prior written consent of Buyerthe Buyer (which consent shall not be unreasonably withheld, conditioned or delayed), to:
(a) amend its charter or bylaws or other governing instruments;
(b) (i) issue, sell, or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase, or otherwise) any shares of its capital stock of any class or any other securities or equity equivalents; or (ii) amend in any respect any of the terms of any such securities outstanding as of the date hereof;
(c) (i) split, combine, combine or reclassify any shares of its capital stock; (ii) declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock; (iii) repurchase, redeem or otherwise acquire any of its securities; or (iviii) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing a liquidation, dissolution, merger, consolidation, restructuring, recapitalization, recapitalization or other reorganization of any Acquired the Company;
(d) (i) except in the ordinary course of business consistent with past practice, for obligations of another Acquired Company, and for any indebtedness to be repaid prior to Closing in accordance with Section 6.3, create, incur, ----------- guarantee, guarantee or assume any indebtedness for borrowed money Indebtedness or otherwise become liable or responsible for the obligations of any other Personperson or entity, except for obligations to or of NBPC, NBP or NBILP; (ii) make any loans, advances, advances or capital contributions to, or investments in, any other Person (other than to wholly owned subsidiaries person or to another Acquired Company and customary loans or advances to employees in amounts not material to the maker of such loan or advance)entity; or (iii) mortgage, mortgage or pledge any of its material assets, tangible or intangible, or create or suffer to exist any material lien Encumbrance thereupon;
(i) except as may be required by Applicable Law or except to the extent consistent with amendments or modifications made to similar plans or arrangements of Seller or its corporate parent, enter into, adopt or make any material amendments to or terminate any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase, pension, retirement, deferred compensation, employment, severance or other employee benefit agreement, trust, plan, fund or other arrangement for the benefit or welfare of any director, officer or employee;
(ii) except for normal increases in the ordinary course of business consistent with past practice that, in the aggregate, do not result in a material increase in benefits or compensation expense to the Acquired Companies, taken as a whole, increase the benefits or compensation to any director, officer, or employee; or (iii) pay to any director, officer, or employee any benefit not permitted by any employee benefit agreement, trust, plan, fund, or other arrangement as in effect on the date hereof;
(fe) acquire, sell, lease, transfer, transfer or otherwise dispose of, directly or indirectly, any assets outside the ordinary course of business consistent with past practice or any assets that in the aggregate are material to the Acquired Companies considered as a wholepractice;
(gf) acquire (by merger, consolidation, or acquisition of stock or assets or otherwise) any corporation, partnership, partnership or other business organization or division thereof;
(hg) make any capital expenditure or expenditures, which, individually, is in excess of $500,000 or, in the aggregate, are in excess of $2,500,000, except expenditures (i) for any capital expenditure other than contributions that may be required to be made for the items described in Schedule 6.2(hto NBP or NBILP), and (ii) reasonable --------------- expenditures made by any Acquired Company in connection with any emergency or other force majeure events affecting such Acquired Company;
(ih) pay, discharge, or satisfy any material claims, liabilities or obligations (whether accrued, absolute, contingent, unliquidated or otherwise, and whether asserted or unasserted), other than (i) the payment, discharge or satisfaction in the ordinary course of business consistent with past practice;
(i) enter into any material natural gas or other futures or options trading agreement or any price swaps, ▇▇▇▇▇▇, futures or in accordance with their terms, of liabilities reflected or reserved against in the Combined Financial Statements or incurred since the Balance Sheet Date in the ordinary course of business consistent with past practice, (ii) the settlement of any Proceeding to the extent contemplated in Section 6.2(l), and -------------- (iii) the Acquired Companies may continue to pursue and prosecute the Pending FERC and RRC Proceedingssimilar material instruments;
(j) amend, modify, make any payment or change in distribution under any material respect (i) any Commercial Contract that had revenues of $5,000,000 Tax sharing or more in calendar year 1999 and that as of December 31, 1999 had a remaining term of 1 year or greater or (ii) any contract or agreement listed in Schedule 4.13 in accordance with clause (ix) of ------------- Section 4.13; ------------other similar arrangement;
(k) change in make any material respect any of the accounting principles payment, dividend or practices used by it, except for any change required by reason of a concurrent change in generally accepted accounting principles; andother distribution to its shareholders;
(l) settle enter into, or resolve permit to be entered into, any pending closing or threatened litigation constituting other agreement or settlement with respect to Taxes affecting or relating to the Company, other than Taxes in respect of which the Company joins in a Proceeding including those listed on Schedule 4.11 consolidated, unitary or Proceeding pending ------------- before FERCother combined group and such group is not controlled by Seller Parent;
(m) pursuant to or within the meaning of the title 11 the United States Code, except as amended, or any similar federal, state or foreign law for the matters described relief of debtors, commence a voluntary case, consent to the entry of an order for relief in Schedule 6.2(lan involuntary case, consent to the appointment of a receiver, trustee, assignee, liquidator or similar official of it or for all or any portion of its property or assets, or make a general assignment for the benefit of creditors; or
(n) and subject commit or otherwise agree to --------------- do any of the limitation set forth thereinforegoing; provided, however, that notwithstanding the foregoing, the Company shall be permitted to declare a dividend, return of capital or other distribution or repayment to the Seller or the Seller Parent in accordance with Section 5.7.
Appears in 1 contract
Restrictions on Certain Actions. Without limiting the generality of -------------------------------
Section 6.1 the foregoing, and except as otherwise expressly provided in this Agreement, prior ----------- to the Closing, Seller the Company shall not permit any Acquired Companynot, without the prior written consent of Buyer, to:
(a) amend its charter or bylaws or other governing instrumentsbylaws;
(b) (i) issue, sell, or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase, or otherwise) any shares of its capital stock of any class or any other securities or equity equivalents; or (ii) amend in any respect any of the terms of any such securities outstanding as of the date hereof;
(i) split, combine, or reclassify any shares of its capital stock; (ii) declare, set aside aside, or pay any dividend or other distribution (whether in cash, stock stock, or property or any combination thereof) in respect of its capital stock; (iii) repurchase, redeem redeem, or otherwise acquire any of its securities; or (iv) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing a liquidation, dissolution, merger, consolidation, restructuring, recapitalization, or other reorganization of any Acquired the Company;
(i) except in the ordinary course of business consistent with past practice, for obligations of another Acquired Company, and for any indebtedness to be repaid prior to Closing in accordance with Section 6.3, create, incur, ----------- guarantee, or assume any indebtedness for borrowed money or otherwise become liable or responsible for the obligations of any other Personperson; (ii) make any loans, advances, or capital contributions to, or investments in, any other Person person; (other than to wholly owned subsidiaries iii) pledge or to another Acquired Company and customary loans or advances to employees in amounts not material to otherwise encumber shares of capital stock of the maker of such loan or advance)Company; or (iiiiv) mortgageexcept in the ordinary course of business consistent with past practice, mortgage or pledge any of its material assets, tangible or intangible, or create or suffer to exist any material lien thereupon;
(i) enter into, adopt, or (except as may be required by Applicable Law or except to the extent consistent with amendments or modifications made to similar plans or arrangements of Seller or its corporate parent, enter into, adopt or make any material amendments to law) amend or terminate any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase, pension, retirement, deferred compensation, employment, severance severance, or other employee benefit agreement, trust, plan, fund fund, or other arrangement for the benefit or welfare of any director, officer officer, or employee;
(ii) except for normal increases in the ordinary course of business consistent with past practice that, in the aggregate, do not result in a material increase in benefits or compensation expense to the Acquired Companies, taken as a wholeCompany, increase in any manner the compensation or fringe benefits or compensation to of any director, officer, or employee; or (iii) pay to any director, officer, or employee any benefit not permitted required by any employee benefit agreement, trust, plan, fund, or other arrangement as in effect on the date hereof;
(f) acquire, sell, lease, transfer, or otherwise dispose of, directly or indirectly, any assets outside the ordinary course of business consistent with past practice or any assets that in the aggregate are material to the Acquired Companies considered as a wholeCompany;
(g) acquire (by merger, consolidation, or acquisition of stock or assets or otherwise) any corporation, partnership, or other business organization or division thereof;
(h) make any capital expenditure or expenditures, expenditures which, individually, is in excess of $500,000 25,000 or, in the aggregate, are in excess of $2,500,000, except (i) for any capital expenditure made for 250,000 and outside of the items described in Schedule 6.2(h), and (ii) reasonable --------------- expenditures made by any Acquired Company in connection with any emergency or other force majeure events affecting such Acquired Companyordinary course of business;
(i) make any Tax election or settle or compromise any federal, state, local, or foreign Tax liability;
(j) pay, discharge, or satisfy any material claims, liabilities liabilities, or obligations (whether accrued, absolute, contingent, unliquidated unliquidated, or otherwise, and whether asserted or unasserted), other than (i) the payment, discharge discharge, or satisfaction in the ordinary course of business consistent with past practice, or in accordance with their terms, of liabilities reflected or reserved against in the Combined Financial Statements or incurred since the Latest Balance Sheet Date in the ordinary course of business consistent with past practice; provided, (ii) however, that in no event shall the settlement of Company repay any Proceeding long-term indebtedness except to the extent contemplated in Section 6.2(l), and -------------- (iii) required by the Acquired Companies may continue to pursue and prosecute the Pending FERC and RRC Proceedingsterms thereof;
(jk) enter into any lease, contract, agreement, commitment, arrangement, or transaction outside the ordinary course of business consistent with past practice;
(l) amend, modify, or change any existing lease, contract, or agreement, other than in any material respect (i) any Commercial Contract that had revenues the ordinary course of $5,000,000 or more in calendar year 1999 and that as of December 31, 1999 had a remaining term of 1 year or greater or (ii) any contract or agreement listed in Schedule 4.13 in accordance business consistent with clause (ix) of ------------- Section 4.13; ------------past practice;
(km) waive, release, grant, or transfer any rights of value, other than in the ordinary course of business consistent with past practice;
(n) lay off any of its employees;
(o) change in any material respect of its banking or safe deposit arrangements;
(p) change any of the accounting principles or practices used by it, except for any change required by reason of a concurrent change in generally accepted accounting principles; andprinciples and notice of which is given in writing by the Company to Buyer;
(lq) settle take any action which would or resolve might make any pending of the representations or threatened litigation constituting a Proceeding including those listed on Schedule 4.11 warranties of Seller or Proceeding pending ------------- before FERCthe Company contained in this Agreement untrue or inaccurate as of any time from the date of this Agreement to the Closing or would or might result in any of the conditions set forth in this Agreement not being satisfied; or
(r) authorize or propose, except for or agree in writing or otherwise to take, any of the matters actions described in Schedule 6.2(l) and subject to --------------- the limitation set forth thereinthis Section 5.2.
Appears in 1 contract
Restrictions on Certain Actions. Without limiting the generality of -------------------------------
Section 6.1 the foregoing, and except as otherwise expressly provided in this Agreement, prior ----------- to the Closing, Seller shall not permit any Acquired Companynot, without the prior written consent of Buyer, to:
(a) amend its charter make any material change in the ongoing operations of the Assets or bylaws or other governing instrumentsthe Business;
(b) (i) issue, sell, or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase, or otherwise) any shares of its capital stock of any class or any other securities or equity equivalents; or (ii) amend any of the terms of any such securities outstanding as of the date hereof;
(i) split, combine, or reclassify any shares of its capital stock; (ii) declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock; (iii) repurchase, redeem or otherwise acquire any of its securities; or (iv) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing a liquidation, dissolution, merger, consolidation, restructuring, recapitalization, or other reorganization of any Acquired Company;
(i) except in the ordinary course of business the Business consistent with past practice, for obligations of another Acquired Company, and for any indebtedness to be repaid prior to Closing in accordance with Section 6.3, create, incur, ----------- guarantee, or assume any indebtedness for borrowed money or otherwise become liable or responsible for in respect of the obligations of any other Person; Business;
(iic) make any loans, advances, or capital contributions to, or investments in, any other Person (other than to wholly owned subsidiaries or to another Acquired Company and customary loans or advances to employees in amounts not material to the maker of such loan or advance); or (iii) mortgage, mortgage or pledge any of its material assets, tangible or intangible, the Assets or create or suffer to exist any material lien Encumbrance thereupon, other than the Permitted Encumbrances;
(i) enter into, adopt, or (except as may be required by Applicable Law or except to the extent consistent with amendments or modifications made to similar plans or arrangements of Seller or its corporate parent, enter into, adopt or make any material amendments to law) amend or terminate any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase, pension, retirement, deferred compensation, employment, severance severance, or other employee benefit agreement, trust, plan, fund fund, or other arrangement for the benefit or welfare of any director, officer or employeeemployee of the Business;
(ii) except for normal increases in the ordinary course of business the Business consistent with past practice that, in the aggregate, do not result in a material increase in benefits or compensation expense to the Acquired Companies, taken as a wholeSeller, increase in any manner the compensation or fringe benefits or compensation to of any director, officer, or employeeemployee of the Business; or (iii) pay to any director, officer, or employee of the Business any benefit not permitted required by any employee benefit agreement, trust, plan, fund, or other arrangement as in effect on the date hereof;
(fe) acquire, sell, lease, transfer, or otherwise dispose of, directly or indirectly, any assets outside of the Assets, other than inventories of finished goods sold, rented or leased in the ordinary course of business the Business consistent with past practice or any assets that in the aggregate are material to the Acquired Companies considered as a wholepractice;
(g) acquire (by merger, consolidation, or acquisition of stock or assets or otherwise) any corporation, partnership, or other business organization or division thereof;
(hf) make any capital expenditure or expenditures, expenditures relating to the Business which, individually, is in excess of $500,000 100,000 or, in the aggregate, are in excess of $2,500,000, except (i) for any capital expenditure made for the items described in Schedule 6.2(h), and (ii) reasonable --------------- expenditures made by any Acquired Company in connection with any emergency or other force majeure events affecting such Acquired Company1,000,000;
(ig) pay, discharge, or satisfy any material claims, liabilities liabilities, or obligations relating to the Business (whether accrued, absolute, contingent, unliquidated unliquidated, or otherwise, and whether asserted or unasserted), other than (i) the payment, discharge discharge, or satisfaction in the ordinary course of business the Business consistent with past practice, or in accordance with their terms, of liabilities reflected or reserved against in the Combined Financial Statements Latest Balance Sheet or incurred since the Balance Sheet Date date thereof in the ordinary course of business the Business consistent with past practice, (ii) the settlement of any Proceeding to the extent contemplated in Section 6.2(l), and -------------- (iii) the Acquired Companies may continue to pursue and prosecute the Pending FERC and RRC Proceedings;
(ji) amend, modify, or change any existing lease, contract, or agreement relating to the Business, other than in the ordinary course of the Business consistent with past practice;
(j) waive, release, grant, or transfer any rights of value relating to the Business, other than in the ordinary course of the Business consistent with past practice;
(k) lay off any employees of the Business;
(l) accelerate collection of any notes or accounts receivable generated by the Business;
(m) delay payment of any account payable or other liability of Seller relating to the Business beyond its due date or the date when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(n) allow the levels of raw materials, work-in-process, finished goods, supplies, and other materials included in the inventory of the Business to vary in any material respect from the levels customarily maintained by Seller in the ordinary course of the Business consistent with past practice;
(io) permit any Commercial Contract that had revenues current insurance or reinsurance policies to be canceled or terminated or any of $5,000,000 the coverages thereunder to lapse if such policy covers Assets or more in calendar year 1999 and that as insures risks, contingencies, or liabilities of December 31the Business, 1999 had a remaining term of 1 year unless simultaneously with such cancellation, termination, or lapse, replacement policies providing coverage equal to or greater than the coverage canceled, terminated, or (ii) any contract or agreement listed lapsed are in Schedule 4.13 in accordance with clause (ix) of ------------- Section 4.13; ------------full force and effect and written copies thereof have been provided to Buyer;
(kp) change in any material respect any of the accounting principles or practices used by it, except for any change required by reason of a concurrent change in generally accepted accounting principles; andit relating to the Business;
(lq) settle take any action which would or resolve might make any pending of the representations or threatened litigation constituting a Proceeding including those listed on Schedule 4.11 warranties of Seller contained in this Agreement untrue or Proceeding pending ------------- before FERCinaccurate as of any time from the date of this Agreement to the Closing or would or might result in any of the conditions set forth in this Agreement not being satisfied; or
(r) authorize or propose, except for or agree in writing or otherwise to take, any of the matters actions described in Schedule 6.2(l) and subject to --------------- the limitation set forth thereinthis Section.
Appears in 1 contract
Restrictions on Certain Actions. Without limiting the generality of -------------------------------
Section 6.1 the foregoing, and except as otherwise expressly provided in this Agreement, prior ----------- to the Closing, Seller shall the Company will not permit take, consent to or allow any Acquired Companyof the following actions, without the prior written consent of Buyer, to:
(a) amend its charter or bylaws or other governing instrumentsGoverning Documents;
(b) (i) issue, sell, deliver, transfer, or deliver pledge (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase, or otherwise) any shares of its capital stock partnership interests of any class or any other securities or equity equivalents; or (ii) amend any of equivalents in the terms of any such securities outstanding as of the date hereofCompany;
(i) split, combine, or reclassify any shares of its capital stock; (ii) declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock; (iii) repurchase, redeem or otherwise acquire any of its securities; or (ivc) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing a liquidation, dissolution, merger, consolidation, conversion, restructuring, recapitalization, or other reorganization of any Acquired the Company;
(d) other than any of the following that will terminate at Closing, (i) except in the ordinary course of business consistent with past practice, for obligations of another Acquired Company, and for any indebtedness to be repaid prior to Closing in accordance with Section 6.3, create, incur, ----------- guarantee, or assume any indebtedness for borrowed money or otherwise become liable or responsible for the obligations of any other Person; (ii) make any loans, advances, or capital contributions to, or investments in, any other Person Person; (iii) pledge or otherwise encumber the Interests or other than to wholly owned subsidiaries or to another Acquired Company and customary loans or advances to employees in amounts not material to equity securities of the maker of such loan or advance)Company; or (iiiiv) mortgage, mortgage or pledge any of its material assets, tangible or intangible, or create or suffer to exist any material lien thereuponLien thereupon or on the Assigned Assets (except for statutory Liens for amounts not yet due or not yet delinquent);
(e) except for any of the following for which the Company and Buyer will have no liability after Closing, with respect to any Transferred Employee, (i) enter into, adopt, or (except as may be required by Applicable Law or except to the extent consistent with amendments or modifications made to similar plans or arrangements of Seller or its corporate parent, enter into, adopt or make any material amendments to law) amend or terminate any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase, pension, retirement, deferred compensation, employment, severance severance, or other employee benefit agreement, trust, plan, fund fund, or other arrangement for the benefit or welfare of any director, officer officer, or employee;
; (ii) except for normal increases in the ordinary course of business consistent with past practice that, in the aggregate, do not result in a material increase in any manner the compensation or fringe benefits or compensation expense to the Acquired Companies, taken as a whole, increase the benefits or compensation to of any director, officer, or employee; or (iii) pay to any director, officer, or employee any benefit not permitted required by any employee benefit agreement, trust, plan, fund, or other arrangement as in effect on the date hereof;
(f) acquire, sell, lease, transfer, or otherwise dispose of, directly or indirectly, any assets outside or allow its Affiliates to do any of the foregoing with respect to the Treating Assets or the Assigned Assets, except for (i) the acquisition or sale of treating plants and related equipment and facilities consistent with the Capital Expenditure Plan or pursuant to any third-party rights in contracts in existence as of the date of this Agreement, (ii) any lease of treating plants and related equipment and facilities in the ordinary course of business, which (x) will not involve expenditures by the Company in excess of $100,000 and will not involve generation of revenue in excess of $250,000, in each case, over the term (including automatic extensions) of the lease and (y) is not for a term of more than two years, (iii) sales of excess or obsolete assets in the ordinary course of business, the disposition or consumption of personal property in the ordinary course of business consistent with past practice that is either replaced by equivalent property or any assets that normally consumed in the aggregate are material operation of the Company’s business, (iv) the sale or other disposition of the Excluded Assets pursuant to Section 8.14, or (v) any other purchases of equipment or other personal property not in excess of $150,000 in the Acquired Companies considered as a whole;aggregate.
(g) acquire (by merger, consolidation, or acquisition of stock or assets or otherwise) any corporation, partnership, or other business organization or division thereof;
(h) make any capital expenditure or expenditures, which, individually, is in excess of $500,000 or, in the aggregate, are in excess of $2,500,000, except (i) for any capital expenditure made for the items described as provided in Schedule 6.2(h)7.2(h) of the Disclosure Schedule, and (ii) reasonable --------------- expenditures made by enter into any Acquired Company in connection with any emergency lease, contract, agreement, commitment, arrangement, right of way, easement or other force majeure events affecting such Acquired Company;
(i) pay, discharge, or satisfy any material claims, liabilities or obligations (whether accrued, absolute, contingent, unliquidated or otherwise, and whether asserted or unasserted), other than (i) the payment, discharge or satisfaction in transaction outside the ordinary course of business consistent with past practice, or any lease, contract, agreement, commitment, arrangement, or transaction (i) which grants or creates any option, right of first refusal, call, put or other preferential right in accordance with their termsfavor of any third party, of liabilities reflected or reserved against in the Combined Financial Statements or incurred since the Balance Sheet Date in the ordinary course of business consistent with past practice, (ii) the settlement having a term of any Proceeding to the extent contemplated in Section 6.2(l), and -------------- (iii) the Acquired Companies may continue to pursue and prosecute the Pending FERC and RRC Proceedingsmore than two years;
(ji) except as provided in Schedule 7.2(i) of the Disclosure Schedule, amend, modify, or change in any material respect (i) any Commercial Contract that had revenues Company Contract, other than in the ordinary course of $5,000,000 or more in calendar year 1999 and that as of December 31, 1999 had a remaining term of 1 year or greater or (ii) any contract or agreement listed in Schedule 4.13 in accordance with clause (ix) of ------------- Section 4.13business; ------------or
(kj) change agree in any material respect writing or otherwise to take any of the accounting principles or practices used by it, except for any change required by reason of a concurrent change in generally accepted accounting principles; and
(l) settle or resolve any pending or threatened litigation constituting a Proceeding including those listed on Schedule 4.11 or Proceeding pending ------------- before FERC, except for the matters actions described in Schedule 6.2(lthis Section 7.2. Immediately following execution of this Agreement, Buyer will provide written notice to Sellers designating the name and contact information of the representative(s) and subject of Buyer authorized to --------------- consent to any of the limitation actions set forth thereinabove in this Section 7.2 on behalf of Buyer.
Appears in 1 contract
Sources: Partnership Interest Purchase and Sale Agreement (Crosstex Energy Lp)
Restrictions on Certain Actions. Without limiting the generality of -------------------------------
Section 6.1 and except as otherwise expressly provided in this Agreementthe foregoing, prior ----------- during the period from the Execution Date to the ClosingClosing Date, Seller the Company will not, and the Members shall not permit any Acquired Companycause the Company to not, without the prior written consent of Buyer, towhich consent shall not be unreasonably withheld, delayed or conditioned:
(a) amend its charter or bylaws or other governing instrumentsthe applicable Governing Documents of the Company;
(b) (i) issue, sell, or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase, or otherwise) any shares of its capital stock membership interests of any class or any other securities or equity equivalents; equivalents in the Company or (ii) amend any of phantom interest for which the terms of any such securities outstanding as of the date hereofvalue is derived therefrom;
(c) (i) split, combine, or reclassify any shares of its capital stock; (ii) declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock; (iii) repurchase, redeem redeem, or otherwise acquire any of its Company’s securities; or (ivii) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing a liquidation, dissolution, merger, consolidation, conversion, restructuring, recapitalization, or other reorganization or winding up of any Acquired the Company;
(d) (i) except in the ordinary course of business consistent with past practice, for obligations of another Acquired Company, and for any indebtedness to be repaid prior to Closing in accordance with Section 6.3, create, incur, ----------- guarantee, or assume any indebtedness for borrowed money or otherwise become liable or responsible for the obligations of any other Person; (ii) make any loans, advances, or capital contributions to, or investments in, any other Person (other than to wholly owned subsidiaries the Company; (ii) pledge or to another Acquired Company and customary loans or advances to employees in amounts not material to the maker of such loan or advance)otherwise encumber Membership Interests; or (iii) mortgage, mortgage or pledge any of its material assets, tangible or intangible, or create or suffer to exist any material lien Lien thereupon; provided, however, that this Section 9.3(d) shall not prohibit the Company from satisfying its obligations under the Contracts, including any credit obligations required under such Contracts;
(e) (i) except as may be required by Applicable Law enter into or except to the extent consistent with amendments or modifications made to similar plans or arrangements of Seller or its corporate parent, enter into, adopt or make any material amendments to or terminate any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase, pension, retirement, deferred compensation, employment, compensation or severance or other employee benefit agreement, trust, plan, fund program, policy or other arrangement for the benefit or welfare of any director, officer or employee;
agreement; (ii) except for normal increases in the ordinary course of business consistent with past practice that, in the aggregate, do not result in a material increase in benefits or compensation expense to the Acquired Companies, taken as a whole, increase the compensation or fringe benefits of any management-level employee or compensation to any director, officer, or employeeabove; or (iii) pay to any director, officer, management-level employee or employee above any benefit not permitted required by any employee benefit agreement, trust, plan, fundprogram, policy or other arrangement agreement as in effect on the date hereofExecution Date; or (iv) except in the Ordinary Course of Business consistent with past practice, increase the compensation or fringe benefits of any other employees;
(f) acquire, purchase or lease, directly or indirectly, any single asset for the Company, except for acquiring an asset that does not exceed $50,000;
(g) sell, lease, transfer, transfer or otherwise dispose of, directly or indirectly, any assets outside of the ordinary course Company, except for: (i) sales or exchanges of business consistent with past practice or any assets that are (A) worthless or obsolete or worn out in the aggregate are material to Ordinary Course of Business, (B) no longer used or useful in the Acquired Companies considered as a wholeOrdinary Course of Business, (C) replaced by assets of equal of better suitability and value, and (ii) Inventory that is sold in the Ordinary Course of Business;
(gh) acquire (by merger, consolidation, or acquisition of stock or assets or otherwise) any corporation, partnership, or other business organization or division thereof;
(h) make any capital expenditure or expenditures, which, individually, is in excess of $500,000 or, in the aggregate, are in excess of $2,500,000, except (i) for any capital expenditure made for the items described in Schedule 6.2(h), and (ii) reasonable --------------- expenditures made by any Acquired Company in connection with any emergency or other force majeure events affecting such Acquired Company;
(i) pay, discharge, or satisfy any material claimssingle claim, liabilities liability, or obligations obligation (whether accrued, absolute, contingent, unliquidated unliquidated, or otherwise, and whether asserted or unasserted)) in excess of $25,000, other than (i) the payment, discharge discharge, or satisfaction in the ordinary course Ordinary Course of business Business consistent with past practice;
(j) enter into any lease, contract, agreement, commitment, arrangement, right-of-way, easement, option, or in accordance with their terms, transaction outside the Ordinary Course of liabilities reflected or reserved against in the Combined Financial Statements or incurred since the Balance Sheet Date in the ordinary course of business Business consistent with past practice, (ii) the settlement of any Proceeding to the extent contemplated in Section 6.2(l), and -------------- (iii) the Acquired Companies may continue to pursue and prosecute the Pending FERC and RRC Proceedings;
(jk) amend, modify, or change in any material respect (i) any Commercial Contract Contract; provided, however, that had revenues Buyer’s consent is not required if Company enters into any of $5,000,000 the foregoing if such amendment, modification or more change results in calendar year 1999 and terms that as of December 31, 1999 had a remaining term of 1 year or greater or (ii) any contract or agreement listed in Schedule 4.13 in accordance with clause (ix) of ------------- Section 4.13; ------------are not less favorable to the applicable Company than the base Contract;
(kl) make any settlement of or compromise any Tax liability, change in any material respect any of the accounting principles or practices used by itCompany, except for any change required by reason of a concurrent change in generally accepted accounting principlesGAAP and notice of which is given in writing by such Company to Buyer; andadopt any new Tax method of accounting; change any Tax election or make any new Tax election; surrender any right to claim a refund of Taxes; or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment;
(lm) settle authorize or resolve propose, or agree in writing or otherwise to take, any pending or threatened litigation constituting a Proceeding including those listed on Schedule 4.11 or Proceeding pending ------------- before FERC, except for of the matters actions requiring the prior written consent of Buyer as described in Schedule 6.2(lthis Section 9.3;
(n) (i) enter into, adopt or amend any collective bargaining agreement, Employee Benefit Plan, or other Contracts with any employee, officer, consultant or director of the Company or individual; (ii) take any action to forgive any loan to any current or former employee, officer, director or consultant of the Company; (iii) take any action to accelerate the vesting, time of payment or funding of any compensation or benefit due to any employee, officer, consultant or director of the Company; (iv) transfer or terminate the employment of any Company employee unless for cause and subject consistent with past practice; or (v) increase the salary, bonuses or other compensation paid or potentially payable to --------------- any Company employee; or
(o) enter into any transactions or take any actions outside the limitation set forth thereinOrdinary Course of Business.
Appears in 1 contract
Sources: Merger Agreement (Grove, Inc.)
Restrictions on Certain Actions. Without limiting the generality of -------------------------------
Section 6.1 6.1, and except as otherwise expressly provided set forth in this AgreementSchedule 6.2, prior ----------- to during the period between the date hereof and the Closing, Seller shall use commercially reasonable efforts to not permit any Acquired Company, without the prior written consent of BuyerBuyers, which consent shall not be unreasonably withheld, delayed, or conditioned, to:
(a) amend its charter or bylaws or other governing instruments;
(b) (i) issue, sell, or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase, or otherwise) any shares of its capital stock of any class or any other securities or equity equivalents; or (ii) amend any of the terms of any such securities outstanding as of the date hereof;
(c) (i) split, combine, or reclassify any shares of its capital stockstock or other equity interests; (ii) declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stockstock or other equity interests; (iii) repurchase, redeem or otherwise acquire any of its securities; or (iv) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing a liquidation, dissolution, merger, consolidation, restructuring, recapitalization, or other reorganization of any Acquired Company;
(id) except in the ordinary course of business consistent with past practice, for obligations of another Acquired Company, and for any indebtedness to be repaid prior to Closing in accordance with Section 6.3, create, incur, ----------- guarantee, or assume any indebtedness for borrowed money or otherwise become liable or responsible for the obligations of any other Person; (ii) make any loans, advances, or capital contributions to, or investments in, any other Person (other than to wholly owned subsidiaries or to another Acquired Company and customary loans or advances to employees in amounts not material to the maker of such loan or advance); or (iii) mortgage, or pledge any of its material assets, tangible or intangible, or create or suffer to exist any material lien thereupon;
(i) except as may be required by Applicable Law or except to the extent consistent with amendments or modifications made to similar plans or arrangements of Seller or its corporate parent, enter into, adopt or make any material amendments to or terminate any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase, pension, retirement, deferred compensation, employment, severance or other employee benefit agreement, trust, plan, fund or other arrangement for the benefit or welfare of any director, officer or employee;
(iie) except for normal increases in the ordinary course of business consistent with past practice that, in the aggregate, do not result in a material increase in benefits or compensation expense to the Acquired Companies, taken as a whole, increase the benefits or compensation to any director, officer, or employeeemployee of the Acquired Companies; or (iiiii) pay to any director, officer, or employee of the Acquired Companies any benefit not permitted required by any employee benefit agreement, trust, plan, fund, or other arrangement as in effect on the date hereof;
(f) acquire, sell, lease, transfer, or otherwise dispose of, directly or indirectly, any assets outside the ordinary course of business consistent with past practice or any assets that having a value of $5,000,000 or more in the aggregate are material to the Acquired Companies considered as a wholeaggregate;
(g) acquire (by merger, consolidation, or acquisition of stock or assets assets, or otherwise) any corporation, partnership, or other business organization or division thereof;
(h) make any capital expenditure or expenditures, which, individually, is expenditures in excess of $500,000 or, in the aggregate, are in excess existing capital expenditures budget approved by the management committee of $2,500,000GLGTLP, except (i) for any capital expenditure made for the items described in Schedule 6.2(h), and (ii) reasonable --------------- expenditures made by any Acquired Company in connection with any emergency or other force majeure events affecting such Acquired Company;
(i) pay, discharge, or satisfy any material claims, liabilities liabilities, or obligations (whether accrued, absolute, contingent, unliquidated or otherwise, and whether asserted or unasserted), other than (i) the payment, discharge or satisfaction in the ordinary course of business consistent with past practice, or in accordance with their terms, of liabilities reflected or reserved against in the Combined GLGTCO Financial Statements or GLGTLP Financial Statements or incurred since the Balance Sheet Date in the ordinary course of business consistent with past practice, (ii) the settlement of any Proceeding to the extent contemplated in Section 6.2(l), and -------------- (iii) the Acquired Companies may continue to pursue and prosecute the Pending FERC and RRC Proceedings;
(j) amend, modify, or change in any material respect (i) any Commercial Contract Scheduled Contract, or enter into any new agreement or contract that had revenues of $5,000,000 would constitute a Scheduled Contract, except to the extent Seller reasonably believes that the Acquired Companies are required to amend, modify, or more change any Scheduled Contract, or enter into any new agreement or contract that would constitute a Scheduled Contract, in calendar year 1999 and that order to comply with obligations under the Scheduled Contracts existing as of December 31the date hereof or to comply with Applicable Laws, 1999 had including a remaining term regulation of 1 year or greater tariff filed with FERC or (ii) any contract or agreement listed in Schedule 4.13 in accordance with clause (ix) of ------------- Section 4.13; ------------the MPSC;
(k) change in any material respect any of the accounting principles or practices used by it, except for any change required by reason of a concurrent change in generally accepted accounting principles; andU.S. GAAP;
(l) settle other than filings related to the capital expenditures permitted by Section 6.2(h), make any material filings or resolve submit any pending material document or threatened litigation constituting a Proceeding including those listed on Schedule 4.11 or Proceeding pending ------------- before material information to FERC, except for the matters described in Schedule 6.2(lMPSC, or any other permitting or regulatory agency; or (m) and subject commit or otherwise agree to --------------- do any of the limitation set forth thereinforegoing.
Appears in 1 contract
Restrictions on Certain Actions. Without limiting the generality of -------------------------------
Section 6.1 the foregoing, and except as otherwise expressly provided in this Agreement, prior ----------- to the Closing, Seller shall not permit any Acquired Companyno Company shall, without the prior written consent of Buyer, to:
(a) amend its charter or bylaws or other governing instrumentsbylaws;
(b) (i) issue, sell, or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase, or otherwise) any shares of its capital stock of any class or any other securities or equity equivalents; or (ii) amend in any respect any of the terms of any such securities outstanding as of the date hereof;
(i) split, combine, or reclassify any shares of its capital stock; (ii) declare, set aside aside, or pay any dividend or other distribution (whether in cash, stock stock, or property or any combination thereof) in respect of its capital stock; (iii) repurchase, redeem redeem, or otherwise acquire any of its securities; or (iv) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing a liquidation, dissolution, merger, consolidation, restructuring, recapitalization, or other reorganization of any Acquired Company;
(i) except in the ordinary course of business consistent with past practice, for obligations of another Acquired Company, and for any indebtedness to be repaid prior to Closing in accordance with Section 6.3, create, incur, ----------- guarantee, or assume any indebtedness for borrowed money or otherwise become liable or responsible for the obligations of any other Personperson; (ii) make any loans, advances, or capital contributions to, or investments in, any other Person person; (other than to wholly owned subsidiaries iii) pledge or to another Acquired Company and customary loans or advances to employees in amounts not material to the maker otherwise encumber shares of such loan or advance)capital stock of any Company; or (iiiiv) mortgageexcept in the ordinary course of business consistent with past practice, mortgage or pledge any of its material assets, tangible or intangible, or create or suffer to exist any material lien thereupon;
(i) enter into, adopt, or (except as may be required by Applicable Law or except to the extent consistent with amendments or modifications made to similar plans or arrangements of Seller or its corporate parent, enter into, adopt or make any material amendments to law) amend or terminate any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase, pension, retirement, deferred compensation, employment, severance or other employee benefit agreement, trust, plan, fund or other arrangement for the benefit or welfare of any director, officer or employee;,
(ii) except for normal increases in the ordinary course of business consistent with past practice that, in the aggregate, do not result in a material increase in benefits or compensation expense to the Acquired Companies, taken as a wholeany Company, increase in any manner the compensation or fringe benefits or compensation to of any director, officer, or employee; or (iii) pay to any director, officer, or employee any benefit not permitted required by any employee benefit agreement, trust, plan, fund, or other arrangement as in effect on the date hereof;
(f) acquire, sell, lease, transfer, or otherwise dispose of, directly or indirectly, any assets outside the ordinary course of business consistent with past practice or any assets that in the aggregate are material to the Acquired Companies considered as a wholeany Company;
(g) acquire (by merger, consolidation, or acquisition of stock or assets or otherwise) any corporation, partnership, or other business organization or division thereof;
(h) make any capital expenditure or expenditures, expenditures which, individually, is in excess of $500,000 25,000 or, in the aggregate, are in excess of $2,500,000, except (i) for any capital expenditure made for the items described in Schedule 6.2(h), and (ii) reasonable --------------- expenditures made by any Acquired Company in connection with any emergency or other force majeure events affecting such Acquired Company250,000;
(i) make any Tax election or settle or compromise any federal, state, local, or foreign Tax liability;
(j) pay, discharge, or satisfy any material claims, liabilities or obligations (whether accrued, absolute, contingent, unliquidated unliquidated, or otherwise, and whether asserted or unasserted), other than (i) the payment, discharge discharge, or satisfaction in the ordinary course of business consistent with past practice, or in accordance with their terms, of liabilities reflected or reserved against in the Combined Financial Statements HEC Latest Balance Sheet and the L&H Latest Balance Sheet or incurred since the Balance Sheet Date October 31, 1997 in the ordinary course of business consistent with past practice; provided, (ii) the settlement of however, that in no event shall any Proceeding Company repay any long-term indebtedness except to the extent contemplated in Section 6.2(l), and -------------- (iii) required by the Acquired Companies may continue to pursue and prosecute the Pending FERC and RRC Proceedingsterms thereof;
(jk) enter into any lease, contract, agreement, commitment, arrangement, or transaction outside the ordinary course of business consistent with past practice;
(l) amend, modify, or change any existing lease, contract, or agreement, other than in any material respect (i) any Commercial Contract that had revenues the ordinary course of $5,000,000 or more in calendar year 1999 and that as of December 31, 1999 had a remaining term of 1 year or greater or (ii) any contract or agreement listed in Schedule 4.13 in accordance business consistent with clause (ix) of ------------- Section 4.13; ------------past practice;
(km) waive, release, grant, or transfer any rights of value, other than in the ordinary course of business consistent with past practice;
(n) lay off any of its employees;
(o) change in any material respect of its banking or safe deposit arrangements;
(p) change any of the accounting principles or practices used by it, except for any change required by reason of a concurrent change in generally accepted accounting principles; andprinciples and notice of which is given in writing by each Company to Buyer;
(lq) settle take any action which would or resolve might make any pending of the representations or threatened litigation constituting a Proceeding including those listed on Schedule 4.11 warranties of Sellers or Proceeding pending ------------- before FERCany Company contained in this Agreement untrue or inaccurate as of any time from the date of this Agreement to the Closing or would or might result in any of the conditions set forth in this Agreement not being satisfied; or
(r) authorize or propose, except for or agree in writing or otherwise to take, any of the matters actions described in Schedule 6.2(l) and subject to --------------- the limitation set forth thereinthis Section.
Appears in 1 contract