Restrictions on Certain Actions. Without limiting the ------------------------------- generality of the foregoing, and except as otherwise expressly provided in this Agreement, prior to the Closing, Company shall not, without the prior written consent of Buyer (which consent will not be unreasonably withheld): (i) make any Material change in the ongoing operations of Company's Business; (ii) except in the ordinary course of business consistent with past practice with respect to the purchase of inventory (including raw materials), create, incur, guarantee, or assume any Indebtedness for borrowed money in respect of Company's Business; (iii) mortgage or pledge any of its assets or create or suffer to exist any Encumbrance thereupon; (a) enter into, adopt, or (except as may be required by Applicable Law) amend any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, stock purchase, pension, retirement, deferred compensation, employment, severance, or other Employee Benefit Plan, trust, fund, or other arrangement for the benefit or welfare of any employee of Company's Business; (b) 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 Company, increase in any manner the compensation or fringe benefits of any employee of Company's Business; (c) pay to any employee of Company any benefit not required by any Employee Benefit Plan, trust, fund, or other arrangement as in effect on the date hereof; (d) pay any bonus to any employee of Company except for bonuses paid in the ordinary course of business and consistent with past practice; (e) declare, set aside or pay any dividend or distribution with respect to its common stock, or redeem, repurchase, or otherwise acquire any of its common stock; or (f) offer, sell, issue or commit to issue any of Company's common stock or any options, warranties, rights or other securities convertible into or having a right to acquire any of same. (v) sell, lease, transfer, or otherwise dispose of, directly or indirectly, any of its assets, other than inventory and unusable equipment sold in the ordinary course of business consistent with past practice; (vi) make any capital expenditure or expenditures relating to Company's Business which is in excess of $50,000.00 as to any one item or $100,000.00 in the aggregate; (vii) pay, discharge, or satisfy any claims, liabilities, or obligations relating to Company's Business (whether accrued, absolute, contingent, unliquidated, or otherwise, and whether asserted or unasserted), other than 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 Financial Statements or incurred since the latest of the Financial Statements delivered to Buyer in the ordinary course of business consistent with past practice; (viii) enter into any lease, Contract, agreement, commitment, arrangement, or transaction relating to Company's Business, except in the ordinary course of business consistent with past practice; (ix) amend, modify, or change any existing lease, Contract, or agreement relating to Company's Business, other than in the ordinary course of business consistent with past practice; (x) waive, release, grant, or transfer any rights of value relating to Company's Business, other than in the ordinary course of business consistent with past practice; (xi) allow the levels of raw materials, work-in-progress, finished goods, supplies, and other materials included in the inventory of Company's Business to vary in any Material respect from the levels customarily maintained by Company in the ordinary course of business consistent with past practice; (xii) permit any current insurance or reinsurance policy to be cancelled or terminated or any of the coverages thereunder to lapse if such policy covers assets or insures risks, contingencies, or liabilities of Company's Business, unless simultaneously with such cancellation, termination, or lapse, replacement policies providing coverage equal to or greater than the coverage cancelled, terminated, or lapsed are in full force and effect and written copies thereof have been provided to Company; (xiii) change any of the accounting principles or practices used by it relating to Company's Business, except for any change required by reason of a concurrent change in GAAP and notice of which is given in writing by the Company to Buyer; or (xiv) engage in any transactions not contemplated by this Agreement, incur any Material liabilities or incur any obligations except those in connection with its performance of the transactions provided for herein; or (xv) enter into any Contract to acquire all or substantially all of the assets or properties of any other Person or acquire all or substantially all of the securities of any other Person; or (xvi) effect any change in the Articles of Incorporation or Bylaws of Company; or (xvii) authorize or propose, or agree in writing or otherwise to take, any of the actions described in this Section.
Appears in 1 contract
Sources: Stock Purchase Agreement (Kevco Inc)
Restrictions on Certain Actions. Without limiting the ------------------------------- generality of the foregoing, and except as otherwise expressly provided in this Agreement, prior to the Closing, Company Sellers shall not, without the prior written consent of Buyer Buyer: (which consent will not be unreasonably withheld):
(ia) make any Material change in the ongoing operations of Company's Business;
(ii) except in the ordinary course of business consistent with past practice with respect to the purchase of inventory (including raw materials), create, incur, guarantee, or assume any Indebtedness for borrowed money liability or obligation in respect of Company's the Business;
, except current liabilities incurred in the ordinary course of the Business, to the extent necessary to preserve and maintain the Business consistent with past practice; (iiib) mortgage or pledge any of its assets the Assets or create or suffer to exist any Encumbrance thereupon;
, other than those existing in connection with the Permitted Encumbrances; (ac) (i) enter into, adopt, or (except as may be required by Applicable Lawlaw) amend or terminate any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, stock purchase, pension, retirement, deferred compensation, employment, collective bargaining, severance, or other Employee Benefit Planemployee benefit agreement, trust, plan, fund, or other arrangement for the benefit or welfare of any employee of Company's the Business;
; (bii) 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 Company, increase in any manner the compensation or fringe benefits of any employee of Company's Businessthe Business other than in the ordinary course of business, consistent with prior practice; or (ciii) pay to any employee of Company the Business any benefit not required by any Employee Benefit Planemployee benefit agreement, trust, plan, fund, or other arrangement as in effect on the date hereof; (d) pay any bonus to any employee of Company except for bonuses paid in the ordinary course of business and consistent with past practice; (e) declare, set aside or pay any dividend or distribution with respect to its common stock, or redeem, repurchase, or otherwise acquire any of its common stock; or (f) offer, sell, issue or commit to issue any of Company's common stock or any options, warranties, rights or other securities convertible into or having a right to acquire any of same.
(v) sell, lease, transfer, or otherwise dispose of, directly or indirectly, any of its assetsthe Assets, other than inventory and unusable equipment sold in the ordinary course of business the Business consistent with past practice;
; (vie) make any capital expenditure or expenditures relating to Company's the Business which is that are not in the ordinary course of business or that in the aggregate are in excess of $50,000.00 as to any one item or $100,000.00 in the aggregate;
500,000; (viif) pay, discharge, or satisfy any claims, liabilities, or obligations relating to Company's the Business (whether accrued, absolute, contingent, unliquidated, or otherwise, and whether asserted or unasserted), including without limitation any loans or other amounts payable to shareholders or affiliates, other than the payment, 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 Financial Statements Latest Balance Sheet or incurred since the latest of the Financial Statements delivered to Buyer date thereof in the ordinary course of business the Business consistent with past practice;
; (viiig) enter into into, or amend, modify, or change, any lease, Contractcontract, agreement, commitment, arrangement, or transaction relating to Company's the Business, except in the ordinary course of business the Business consistent with past practice;
; (ixh) amend, modify, delay payment of any account payable or change any existing lease, Contract, or agreement other liability of Sellers relating to Company's Business, other than the Business beyond its due date or the date when such liability would have been paid in the ordinary course of business the Business consistent with past practice;
; (x) waive, release, grant, or transfer any rights of value relating to Company's Business, other than in the ordinary course of business consistent with past practice;
(xii) allow the levels of raw materials, work-in-progressprocess, finished goods, supplies, and other materials included in the inventory of Company's the Business to vary in any Material material respect from the levels customarily maintained by Company Sellers in the ordinary course of business the Business consistent with past practice;
; (xiij) permit any current insurance or reinsurance policy policies to be cancelled or terminated or any of the coverages thereunder to lapse if such policy covers assets Assets or insures risks, contingencies, or liabilities of Company's the Business, unless simultaneously with such cancellation, termination, or lapse, replacement policies providing coverage equal to or greater than the coverage cancelled, terminated, or lapsed are in full force and effect and written copies thereof have been provided to Company;
Triangle or Buyer; (xiiik) change authorize, declare, pay, or effect any dividend or liquidating or other distribution in respect of its capital stock (other than in cash for (i) payment of tax liabilities for tax periods ending prior to the Closing resulting from the subchapter S corporation status of a Seller) or (ii) payment of any obligations under any shareholder agreements or any direct or indirect redemption, purchase, or other acquisition of any of such stock (other than under any shareholder agreements); (l) deliberately take any action that would make any of the accounting principles representations or practices used by it relating warranties of any Seller contained in this Agreement untrue or inaccurate as of any time from the date of this Agreement to Company's Business, except for any change required by reason of a concurrent change in GAAP and notice of which is given in writing by the Company to Buyer; or
(xiv) engage Closing or would or might result in any transactions not contemplated by this Agreement, incur any Material liabilities or incur any obligations except those in connection with its performance of the transactions provided for hereinconditions set forth in this Agreement not being satisfied; or
(xvm) enter into or amend any Contract to acquire all contract, agreement, or substantially all of the assets other commitment that would have a Material Adverse Effect; or properties of any other Person or acquire all or substantially all of the securities of any other Person; or
(xvi) effect any change in the Articles of Incorporation or Bylaws of Company; or
(xviin) authorize or propose, or agree in writing or otherwise to take, any of the actions described in this Section.Section 5.2. ARTICLE
Appears in 1 contract
Restrictions on Certain Actions. Without limiting the generality ------------------------------- generality of the foregoing, and except as otherwise expressly provided in this Agreement, prior to the Closing, Company shall not, without the prior written consent of Buyer (which consent will not be unreasonably withheld):
(i) make any Material change in the ongoing operations of Company's Business;
(ii) except in the ordinary course of business consistent with past practice with respect to the purchase of inventory (including raw materials), create, incur, guarantee, or assume any Indebtedness for borrowed money in respect of Company's Business;
(iii) mortgage or pledge any of its assets or create or suffer to exist any Encumbrance thereupon;
(a) enter into, adopt, or (except as may be required by Applicable Law) amend any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, stock purchase, pension, retirement, deferred compensation, employment, severance, or other Employee Benefit Plan, trust, fund, or other arrangement for the benefit or welfare of any employee of Company's Business;
(b) 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 Company, increase in any manner the compensation or fringe benefits of any employee of Company's Business; (c) pay to any employee of Company any benefit not required by any Employee Benefit Plan, trust, fund, or other arrangement as in effect on the date hereof; (d) pay any bonus to any employee of Company except for bonuses paid in the ordinary course of business and consistent with past practice; (e) declare, set aside or pay any dividend or distribution with respect to its common stockmembership interests, except for distributions in amounts calculated to enable the Members to pay their respective federal, state and local income Taxes (at applicable rates) due with respect to the Company's current earnings (the "Tax Distributions") as contemplated by Section 3.2, or redeem, repurchase, or otherwise acquire any of its common stockmembership interests; or (f) offer, sell, issue or commit to issue any of Company's common stock membership interests or any options, warranties, rights or other securities convertible into or having a right to acquire any of same.
(v) sell, lease, transfer, or otherwise dispose of, directly or indirectly, any of its assets, other than inventory and unusable equipment sold in the ordinary course of business consistent with past practice;
(vi) make any capital expenditure or expenditures relating to Company's Business which is in excess of $50,000.00 25,000.00 as to any one item or $100,000.00 50,000.00 in the aggregate;
(vii) pay, discharge, or satisfy any claims, liabilities, or obligations relating to Company's Business (whether accrued, absolute, contingent, unliquidated, or otherwise, and whether asserted or unasserted), other than 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 Financial Statements or incurred since the latest of the Financial Statements delivered to Buyer in the ordinary course of business consistent with past practice;
(viii) enter into any lease, Contract, agreement, commitment, arrangement, or transaction relating to Company's Business, except in the ordinary course of business consistent with past practice;
(ix) amend, modify, or change any existing lease, Contract, or agreement relating to Company's Business, other than in the ordinary course of business consistent with past practice;
(x) waive, release, grant, or transfer any rights of value relating to Company's Business, other than in the ordinary course of business consistent with past practice;
(xi) allow the levels of raw materials, work-in-progress, finished goods, supplies, and other materials included in the inventory of Company's Business to vary in any Material respect from the levels customarily maintained by Company in the ordinary course of business consistent with past practice;
(xii) permit any current insurance or reinsurance policy to be cancelled or terminated or any of the coverages thereunder to lapse if such policy covers assets or insures risks, contingencies, or liabilities of Company's Business, unless simultaneously with such cancellation, termination, or lapse, replacement policies providing coverage equal to or greater than the coverage cancelled, terminated, or lapsed are in full force and effect and written copies thereof have been provided to Company;
(xiii) change any of the accounting principles or practices used by it relating to Company's Business, except for any change required by reason of a concurrent change in GAAP and notice of which is given in writing by the Company to Buyer; or
(xiv) engage in any transactions not contemplated by this Agreement, incur any Material liabilities or incur any obligations except (i) those in connection with its performance of the transactions provided for herein; or, or (ii) those which are in the ordinary course of business and consistent with past practices.
(xv) enter into any Contract to acquire all or substantially all of the assets or properties of any other Person or acquire all or substantially all of the securities of any other Person; or
(xvi) effect any change in the Articles of Incorporation Organization or Bylaws Operating Agreement of Company; or
(xvii) authorize or propose, or agree in writing or otherwise to take, any of the actions described in this Section.
Appears in 1 contract
Sources: Asset Purchase Agreement (Kevco Inc)
Restrictions on Certain Actions. Without limiting the ------------------------------- generality of the foregoing, and except as otherwise expressly provided in this Agreement, prior to the Closing, Company Sellers shall not, without the prior written consent of Buyer (which consent will not be unreasonably withheld):
(iBuyer: ( ) make any Material change in the ongoing operations of Company's Business;
(ii) except in the ordinary course of business consistent with past practice with respect to the purchase of inventory (including raw materials), create, incur, guarantee, or assume any Indebtedness for borrowed money liability or obligation in respect of Company's the Business;
, except current liabilities incurred in the ordinary course of the Business, to the extent necessary to preserve and maintain the Business consistent with past practice; (iiia) mortgage or pledge any of its assets the Assets or create or suffer to exist any Encumbrance thereupon;
, other than those existing in connection with the Permitted Encumbrances; (ab) (i) enter into, adopt, or (except as may be required by Applicable Lawlaw) amend or terminate any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, stock purchase, pension, retirement, deferred compensation, employment, collective bargaining, severance, or other Employee Benefit Planemployee benefit agreement, trust, plan, fund, or other arrangement for the benefit or welfare of any employee of Company's the Business;
; (bii) 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 Company, increase in any manner the compensation or fringe benefits of any employee of Company's Businessthe Business other than in the ordinary course of business, consistent with prior practice; or (ciii) pay to any employee of Company the Business any benefit not required by any Employee Benefit Planemployee benefit agreement, trust, plan, fund, or other arrangement as in effect on the date hereof; (d) pay any bonus to any employee of Company except for bonuses paid in the ordinary course of business and consistent with past practice; (e) declare, set aside or pay any dividend or distribution with respect to its common stock, or redeem, repurchase, or otherwise acquire any of its common stock; or (f) offer, sell, issue or commit to issue any of Company's common stock or any options, warranties, rights or other securities convertible into or having a right to acquire any of same.
(vc) sell, lease, transfer, or otherwise dispose of, directly or indirectly, any of its assetsthe Assets, other than inventory and unusable equipment sold in the ordinary course of business the Business consistent with past practice;
; (vid) make any capital expenditure or expenditures relating to Company's the Business which is that are not in the ordinary course of business or that in the aggregate are in excess of $50,000.00 as to any one item or $100,000.00 in the aggregate;
500,000; (viie) pay, discharge, or satisfy any claims, liabilities, or obligations relating to Company's the Business (whether accrued, absolute, contingent, unliquidated, or otherwise, and whether asserted or unasserted), including without limitation any loans or other amounts payable to shareholders or affiliates, other than the payment, 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 Financial Statements Latest Balance Sheet or incurred since the latest of the Financial Statements delivered to Buyer date thereof in the ordinary course of business the Business consistent with past practice;
; (viiif) enter into into, or amend, modify, or change, any lease, Contractcontract, agreement, commitment, arrangement, or transaction relating to Company's the Business, except in the ordinary course of business the Business consistent with past practice;
; (ixg) amend, modify, delay payment of any account payable or change any existing lease, Contract, or agreement other liability of Sellers relating to Company's Business, other than the Business beyond its due date or the date when such liability would have been paid in the ordinary course of business the Business consistent with past practice;
; (x) waive, release, grant, or transfer any rights of value relating to Company's Business, other than in the ordinary course of business consistent with past practice;
(xih) allow the levels of raw materials, work-in-progressprocess, finished goods, supplies, and other materials included in the inventory of Company's the Business to vary in any Material material respect from the levels customarily maintained by Company Sellers in the ordinary course of business the Business consistent with past practice;
; (xiii) permit any current insurance or reinsurance policy policies to be cancelled or terminated or any of the coverages thereunder to lapse if such policy covers assets Assets or insures risks, contingencies, or liabilities of Company's the Business, unless simultaneously with such cancellation, termination, or lapse, replacement policies providing coverage equal to or greater than the coverage cancelled, terminated, or lapsed are in full force and effect and written copies thereof have been provided to Company;
Triangle or Buyer; (xiiij) change authorize, declare, pay, or effect any dividend or liquidating or other distribution in respect of its capital stock (other than in cash for (i) payment of tax liabilities for tax periods ending prior to the Closing resulting from the subchapter S corporation status of a Seller) or (ii) payment of any obligations under any shareholder agreements or any direct or indirect redemption, purchase, or other acquisition of any of such stock (other than under any shareholder agreements); (k) deliberately take any action that would make any of the accounting principles representations or practices used by it relating warranties of any Seller contained in this Agreement untrue or inaccurate as of any time from the date of this Agreement to Company's Business, except for any change required by reason of a concurrent change in GAAP and notice of which is given in writing by the Company to Buyer; or
(xiv) engage Closing or would or might result in any transactions not contemplated by this Agreement, incur any Material liabilities or incur any obligations except those in connection with its performance of the transactions provided for hereinconditions set forth in this Agreement not being satisfied; or
(xvl) enter into or amend any Contract to acquire all contract, agreement, or substantially all of the assets other commitment that would have a Material Adverse Effect; or properties of any other Person or acquire all or substantially all of the securities of any other Person; or
(xvi) effect any change in the Articles of Incorporation or Bylaws of Company; or
(xviim) authorize or propose, or agree in writing or otherwise to take, any of the actions described in this Section.Section 5.2. V.
Appears in 1 contract
Restrictions on Certain Actions. Without limiting the ------------------------------- generality of the foregoingSection 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, Company Seller shall notuse commercially reasonable efforts to not permit any Acquired Company, without the prior written consent of Buyer (Buyers, which consent will shall not be unreasonably withheld):, delayed, or conditioned, to:
(a) amend its charter or bylaws or other governing instruments;
(b) (i) make issue, sell, or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase, or otherwise) any Material change in shares of its capital stock of any class or any other securities or equity equivalents; or (ii) amend any of the ongoing operations terms of Company's Businessany such securities outstanding as of the date hereof;
(c) (i) split, combine, or reclassify any shares of its capital stock 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 stock 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;
(d) except in the ordinary course of business consistent with past practice with respect to the purchase of inventory (including raw materials)practice, create, incur, guarantee, or assume any Indebtedness indebtedness for borrowed money in respect or otherwise become liable or responsible for the obligations of Company's Businessany other Person;
(iii) mortgage or pledge any of its assets or create or suffer to exist any Encumbrance thereupon;
(a) enter into, adopt, or (except as may be required by Applicable Law) amend any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, stock purchase, pension, retirement, deferred compensation, employment, severance, or other Employee Benefit Plan, trust, fund, or other arrangement for the benefit or welfare of any employee of Company's Business;
(be) except for normal increases in the ordinary course of business consistent with past practice that, in the aggregate, do not result in a Material material increase in benefits or compensation expense to Companythe Acquired Companies, taken as a whole, increase in the benefits or compensation to any manner the compensation director, officer, or fringe benefits of any employee of Company's Businessthe Acquired Companies; (cii) pay to any director, officer, or employee of Company the Acquired Companies any benefit not required by any Employee Benefit Planemployee benefit agreement, trust, plan, fund, or other arrangement as in effect on the date hereof; or (diii) pay any bonus to any employee of Company except for bonuses paid in the ordinary course of business and consistent with past practice; (e) declarehire, set aside or pay any dividend or distribution with respect to its common stockterminate without cause, or redeem, repurchase, or otherwise acquire transfer any of its common stock; or Employee;
(f) offeracquire, sell, issue or commit to issue any of Company's common stock or any options, warranties, rights or other securities convertible into or having a right to acquire any of same.
(v) sell, lease, transfer, or otherwise dispose of, directly or indirectly, any of its assets, other than inventory and unusable equipment sold in assets outside the ordinary course of business consistent with past practicepractice or any assets having a value of $5,000,000 or more in the aggregate;
(vig) 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 relating to Company's Business which is in excess of $50,000.00 as to the existing capital expenditures budget approved by the management committee of GLGTLP, except for reasonable expenditures made by any one item Acquired Company in connection with any emergency or $100,000.00 in the aggregateother force majeure events affecting such Acquired Company;
(viii) pay, discharge, or satisfy any material claims, liabilities, or obligations relating to Company's Business (whether accrued, absolute, contingent, unliquidated, unliquidated or otherwise, and whether asserted or unasserted), other than 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 GLGTCO Financial Statements or GLGTLP Financial Statements or incurred since the latest of the Financial Statements delivered to Buyer Balance Sheet Date in the ordinary course of business consistent with past practice;
(viii) enter into any lease, Contract, agreement, commitment, arrangement, or transaction relating to Company's Business, except in the ordinary course of business consistent with past practice;
(ixj) amend, modify, or change in any existing lease, material respect any Scheduled Contract, or enter into any new agreement relating or contract that would constitute a Scheduled Contract, except to Company's Businessthe extent Seller reasonably believes that the Acquired Companies are required to amend, other than modify, or change any Scheduled Contract, or enter into any new agreement or contract that would constitute a Scheduled Contract, in order to comply with obligations under the ordinary course Scheduled Contracts existing as of business consistent the date hereof or to comply with past practiceApplicable Laws, including a regulation of or tariff filed with FERC or the MPSC;
(xk) waive, release, grant, or transfer any rights of value relating to Company's Business, other than in the ordinary course of business consistent with past practice;
(xi) allow the levels of raw materials, work-in-progress, finished goods, supplies, and other materials included in the inventory of Company's Business to vary change in any Material material respect from the levels customarily maintained by Company in the ordinary course of business consistent with past practice;
(xii) permit any current insurance or reinsurance policy to be cancelled or terminated or any of the coverages thereunder to lapse if such policy covers assets or insures risks, contingencies, or liabilities of Company's Business, unless simultaneously with such cancellation, termination, or lapse, replacement policies providing coverage equal to or greater than the coverage cancelled, terminated, or lapsed are in full force and effect and written copies thereof have been provided to Company;
(xiii) change any of the accounting principles or practices used by it relating to Company's Businessit, except for any change required by reason of a concurrent change in GAAP and notice of which is given in writing by the Company to Buyer; orU.S. GAAP;
(xivl) engage in other than filings related to the capital expenditures permitted by Section 6.2(h), make any transactions not contemplated by this Agreementmaterial filings or submit any material document or material information to FERC, incur any Material liabilities the MPSC, or incur any obligations except those in connection with its performance of the transactions provided for herein; or
(xv) enter into any Contract to acquire all or substantially all of the assets or properties of any other Person permitting or acquire all regulatory agency; or substantially all of the securities of any other Person; or
(xvim) effect any change in the Articles of Incorporation or Bylaws of Company; or
(xvii) authorize or propose, or agree in writing commit or otherwise agree to take, do any of the actions described in this Sectionforegoing.
Appears in 1 contract
Restrictions on Certain Actions. OF THE LP, THE LLC AND THE CONTRIBUTED SUBS. Without limiting the ------------------------------- generality of Section 5.1, except as listed in Section 5.1 of the foregoing, Disclosure Letters and except as otherwise expressly provided in contemplated by this Agreement (including Sections 2.1, 2.2 and 2.3), the Stock Purchase Agreement, prior to the ClosingSubscription Agreement and the Formation Agreement, Company shall notfrom and after the date hereof and until the Closing Date, none of the LLC, the LP or any Contributed Sub, without the prior written consent approval of Buyer (which consent will not be unreasonably withheld):Heritage OLP, shall, with respect to the Contributed Subs, the Transferred Assets or the Business of the U.S. Propane Parties, or shall cause or permit any of the Contributed Subs to:
(ia) make any Material change in the ongoing operations of Company's Business;
(ii) except in expenditures outside the ordinary course of business consistent with past practice with respect to which, individually or in the purchase aggregate, exceed $100,000;
(b) make any material change in the ongoing operations of inventory the Transferred Assets or Business;
(including raw materials), c) create, incur, guarantee, guarantee or assume any Indebtedness indebtedness for borrowed money in respect of Company's Businessoutside the ordinary course business;
(iiid) mortgage or pledge any of its assets the Transferred Assets or Contributed Interests or create or suffer to exist any Encumbrance thereupon, other than Permitted Encumbrances;
(a) enter into, adopt, or (except as may be required by Applicable Law) amend any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, stock purchase, pension, retirement, deferred compensation, employment, severance, or other Employee Benefit Plan, trust, fund, or other arrangement for the benefit or welfare of any employee of Company's Business;
(b) 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 Company, increase in any manner the compensation or fringe benefits of any employee of Company's Business; (c) pay to any employee of Company any benefit not required by any Employee Benefit Plan, trust, fund, or other arrangement as in effect on the date hereof; (d) pay any bonus to any employee of Company except for bonuses paid in the ordinary course of business and consistent with past practice; (e) declare, set aside or pay any dividend or distribution with respect to its common stock, or redeem, repurchase, or otherwise acquire any of its common stock; or (f) offer, sell, issue or commit to issue any of Company's common stock or any options, warranties, rights or other securities convertible into or having a right to acquire any of same.
(v) sell, lease, transfer, transfer or otherwise dispose of, directly or indirectly, any of its assetsthe Transferred Assets, other than inventory and unusable equipment sold in the ordinary course of business consistent with past practice;
(vi) make any capital expenditure or expenditures relating to Company's Business which is in excess of $50,000.00 as to any one item or $100,000.00 in the aggregate;
(vii) pay, discharge, or satisfy any claims, liabilities, or obligations relating to Company's Business (whether accrued, absolute, contingent, unliquidated, or otherwise, and whether asserted or unasserted), other than the payment, discharge, or satisfaction except in the ordinary course of business consistent with past practice, or in accordance with their termssell, lease, transfer, or otherwise dispose of liabilities reflected any fixed assets, whether or reserved against not in the Financial Statements ordinary course of business, which have a value, individually or incurred since in the latest aggregate, in excess of $100,000;
(f) enter into any lease, contract, agreement, commitment, arrangement or transaction relating to the Transferred Assets other than in the ordinary course of business;
(g) amend, modify or change any existing lease or Contract relating to the Transferred Assets, other than in the ordinary course of the Financial Statements delivered business consistent with past practice;
(h) waive, release, grant or transfer any rights of value relating to Buyer the Transferred Assets, Contributed Interests or Business, other than in the ordinary course of the business consistent with past practice; CONTRIBUTION AGREEMENT EXECUTION COPY DATED JUNE 15, 2000 43
(i) except in the ordinary course of business, hire any new employees or recall any laid-off employees;
(j) delay payment of any account payable or other liability relating to the Transferred Assets or Business beyond the later of its due date or the date when such liability would have been paid in the ordinary course of business consistent with past practice, unless such delay is due to a good faith dispute as to liability or amount;
(viii) enter into any lease, Contract, agreement, commitment, arrangement, or transaction relating to Company's Business, except in the ordinary course of business consistent with past practice;
(ix) amend, modify, or change any existing lease, Contract, or agreement relating to Company's Business, other than in the ordinary course of business consistent with past practice;
(x) waive, release, grant, or transfer any rights of value relating to Company's Business, other than in the ordinary course of business consistent with past practice;
(xi) allow the levels of raw materials, work-in-progress, finished goods, supplies, and other materials included in the inventory of Company's Business to vary in any Material respect from the levels customarily maintained by Company in the ordinary course of business consistent with past practice;
(xiik) permit any current insurance or reinsurance policy to be cancelled or terminated or any of the coverages thereunder continuation coverage to lapse if such policy covers assets or insures risks, contingencies, contingencies or liabilities of Company's (including product liability) related to the Transferred Assets or Business, unless simultaneously with such cancellation, termination, or lapse, replacement policies providing coverage equal to or greater than the coverage cancelled, terminated, or lapsed are in full force and effect and written copies thereof have been provided to Company;
(xiiil) change except as set forth in this Section 5.2, take any action which would make any of the accounting principles representations or practices used by it relating warranties of the LP untrue as of any time from the date of this Agreement to Company's Businessthe date of the Closing, except for or would result in any change required by reason of a concurrent change the conditions set forth in GAAP and notice of which is given in writing by the Company to Buyer; orthis Agreement not being satisfied;
(xiv) engage in any transactions not contemplated by this Agreement, incur any Material liabilities or incur any obligations except those in connection with its performance of the transactions provided for herein; or
(xv) enter into any Contract to acquire all or substantially all of the assets or properties of any other Person or acquire all or substantially all of the securities of any other Person; or
(xvi) effect any change in the Articles of Incorporation or Bylaws of Company; or
(xviim) authorize or propose, or agree in writing or otherwise to take, any of the actions described in this SectionSection 5.2;
(n) merge into or with or consolidate with any other corporation or acquire all or substantially all of the business or assets of any corporation or other Person;
(o) purchase any securities of any corporation or other Person;
(p) take any action or enter into any commitment with respect to or in contemplation of any liquidation, dissolution, recapitalization, reorganization, or other winding up of the Business;
(q) create any employee benefit plans (within the meaning of Section 3(3) of ERISA) or any other employee benefit plan or program not subject to ERISA, except as required by law;
(r) enter into or take any action in connection with hedg▇▇, ▇▇ades or swaps of any commodity, except to the extent consistent with the provisions of the Hedging Policy; or
(s) take any actions prohibited on the part of a Contributed Sub by Section 5.2 of the Formation Agreement (and the LP will not waive any such restrictions without the approval of Heritage OLP).
Appears in 1 contract
Sources: Contribution Agreement (Heritage Propane Partners L P)