Conduct of Business Pending the Mergers. Each of Pioneer, Pioneer USA and the Partnerships covenants and agrees that, between the date of this Merger Agreement and the Closing Date, unless the other parties shall otherwise agree in writing or as otherwise contemplated in this Merger Agreement, they shall conduct their respective businesses only in the ordinary course of business and in a manner consistent with past practice, and they shall not take any action except for actions consistent with such practice. Each of Pioneer, Pioneer USA and the Partnerships shall use their respective reasonable best efforts to preserve intact the business organization of Pioneer, Pioneer USA and the Partnerships, to keep available the services of the present officers, employees and consultants of Pioneer, Pioneer USA and the Partnerships, and to preserve their relationships with customers, suppliers and other persons with which they have significant business dealings.
Conduct of Business Pending the Mergers. SECTION 6.01. Conduct of Business by the Company Pending the Mergers. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Effective Time, the Company covenants and agrees that, unless Parent shall otherwise agree in writing or as required or permitted under this Agreement, the Company shall conduct its business and shall cause the business of its subsidiaries to be conducted only in, and the Company and its subsidiaries shall not take any action, except in the ordinary course of business and in a manner consistent with past practice; and the Company shall use all commercially reasonable efforts to preserve substantially intact the business organization of the Company and its subsidiaries, to keep available the services of the present officers, employees and consultants of the Company and its subsidiaries and to preserve the present relationships of the Company and its subsidiaries with customers, suppliers and other persons with which the Company or any subsidiary has significant business relations. By way of amplification and not limitation, except as contemplated by this Agreement and except for transfers of cash among the Company and its wholly-owned subsidiaries pursuant to the Company's ordinary cash management policies as disclosed in Section 6.01 of the Company Disclosure Schedule, neither the Company nor any subsidiary shall, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Effective Time, directly or indirectly do, or propose to do, any of the following without the prior written consent of Parent:
(a) amend or otherwise change the Company's certificate of incorporation or bylaws;
(b) issue, sell, pledge, dispose of or encumber, or authorize the issuance, sale, pledge, disposition or encumbrance of, any shares of Company capital stock of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of Company capital stock, or any other ownership interest (including, without limitation, any phantom interest) of the Company, any subsidiary or any of its affiliates, except for the issuance of shares of Company Common Stock issuable to participants in the Company's Employee Stock Purchase Plan or upon the exercise of outstanding Company Stock Options or Company Stock Warrants; or
(c) sell, pledge, lease or otherwise dispose of or encumber any assets or i...
Conduct of Business Pending the Mergers. Section 7.1 Conduct of Business by Dynegy Pending the DAC Merger. From the date hereof until the Effective Time, unless Illinova otherwise agrees in writing, or except as listed in the Dynegy Disclosure Schedule or as otherwise contemplated by this Agreement, Dynegy will conduct, and will cause its Subsidiaries to conduct, its business in the ordinary course consistent with past practice and will use, and will cause each of its Subsidiaries to use, all reasonable efforts to preserve intact their business organizations and relationships with third parties and to keep available the services of its key employees, directors and officers, subject to the terms of this Agreement. Except as listed in the Dynegy Disclosure Schedule or as otherwise provided in this Agreement, and without limiting the generality of the foregoing, from the date hereof until the Effective Time, without the written consent of Illinova, which consent will not be unreasonably withheld:
(a) Neither Dynegy nor any of its Subsidiaries will adopt or propose any change to its certificate of incorporation or bylaws (or similar organizational documents);
(b) Neither Dynegy nor any of its Subsidiaries will (i) declare, set aside or pay any dividend or other distribution with respect to any shares of capital stock of Dynegy or any of its respective Subsidiaries (except for (A) dividends on the Dynegy Stock in amounts consistent with past practices, and (B) intercompany dividends from direct or indirect wholly-owned Subsidiaries or from or in connection with facilities listed in Section 5.24 of the Dynegy Disclosure Schedule) or (ii) repurchase, redeem or otherwise acquire any outstanding shares of capital stock or other securities of, or other ownership interests in, Dynegy or any of its Subsidiaries, other than intercompany acquisitions of stock;
(c) Neither Dynegy nor any of its Subsidiaries will merge or consolidate with any Person other than a member of the consolidated group of corporations of which Dynegy is the parent for purposes of Treasury Regulation Section 1.1502 or acquire assets of any other Person (other than a member of such group) for consideration exceeding $20,000,000 singularly or $75,000,000 in the aggregate, or enter a new line of business or commence material business operations in any country in which Dynegy is not operating as of the date of this Agreement other than acquisitions pursuant to contractual commitments in effect on the date hereof;
(d) Except (i) as listed in ...
Conduct of Business Pending the Mergers. Section 6.1 Conduct of the Company and its Subsidiaries 28 Section 6.2 Conduct of Parent and Merger Sub 31 Section 6.3 No Control of Other Party's Business 31 ARTICLE VII ADDITIONAL AGREEMENTS Section 7.1 Shareholder Meeting; Proxy Material 31 Section 7.2 Efforts 32 Section 7.3 Access to Information 35 Section 7.4 Solicitation 35 Section 7.5 Director and Officer Liability 38 Section 7.6 Takeover Statutes 40 Section 7.7 Public Announcements 40 Section 7.8 Employee Matters 40 Section 7.9 Company Reorganization; Management Business Sale; the Distribution 42 Section 7.10 Rule 16b-3 43 Section 7.11 Notification of Certain Matters 43 Section 7.12 Indebtedness; Joint Ventures; Real Property Leases 43 Section 7.13 Certain Litigation 44 Section 7.14 Estoppels 44
Conduct of Business Pending the Mergers. SECTION 6.01. CONDUCT OF BUSINESS BY B PENDING THE B MERGER. Prior to the Effective Time (except as expressly contemplated, required or permitted by this Agreement or any of the ancillary agreements, as set forth in SECTION 6.01 of the B Disclosure Schedule, or to the extent that the Company and A shall otherwise consent in writing, which consent shall not be unreasonably withheld):
(a) ORDINARY COURSE. B shall carry on its business in the usual, regular and ordinary course and shall use its reasonable efforts to (i) preserve intact its present business organizations, (ii) keep available the services of its present officers and employees, and (iii) preserve its relationships with suppliers, tour wholesalers, travel agents, code share partners and others having business dealings with it. Notwithstanding the foregoing, B may enter into agreements of the type contemplated by SECTION 116 of the Aviation and Transportation Security Act, provided that such agreements are approved by the Secretary of the DOT under 49 U.S.C. ss. 41308(c) and receive the prior written approval of the Company and A.
(b) DIVIDENDS; CHANGES IN STOCK. B shall not (i) declare or pay any dividends on or make other distributions in respect of any of its capital stock, (ii) split, combine or reclassify any of its capital stock or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (iii) repurchase, redeem or otherwise acquire any shares of capital stock.
Conduct of Business Pending the Mergers. SECTION 6.1 Conduct of Business of Telco. Telco covenants ---------------------------- and agrees that, between the date of this Agreement and the Effective Time, unless EXCEL shall otherwise consent in writing, and except as described on Schedule 6.1 hereto or as otherwise expressly contemplated hereby, the business of Telco and its Subsidiaries shall be conducted only in, and such entities shall not take any action except in, the ordinary course of business and in a manner consistent with past practice; and Telco and its Subsidiaries will use their commercially reasonable efforts to preserve substantially intact their business organizations, to keep available the services of those of their present officers, employees and consultants who are integral to the operation of their businesses as presently conducted and to preserve their present relationships with significant customers, significant suppliers and with other persons with whom they have significant business relations. By way of amplification and not limitation, except as set forth on Schedule 6.1 hereto or as otherwise expressly contemplated by this Agreement, Telco agrees on behalf of itself and its Subsidiaries that they will not, between the date of this Agreement and the Effective Time, directly or indirectly, do any of the following without the prior written consent of EXCEL:
(i) except for (A) the issuance of Telco Common Stock in order to satisfy obligations under employee benefit plans disclosed in Schedule 4.11; (B) grants of stock options with respect to Telco Common Stock as set forth in Schedule 6.1; and (C) the issuance of securities by a Subsidiary to any person which is directly or indirectly wholly-owned by Telco: issue, sell, pledge, dispose of, encumber, authorize, or propose the issuance, sale, pledge, disposition, encumbrance or authorization of any shares of capital stock of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of capital stock of, or any other ownership interest in, Telco or any of its Subsidiaries; (ii) amend or propose to amend the Articles of Incorporation or Bylaws of Telco or any of its Subsidiaries or adopt any shareholder rights plan or related rights agreement; (iii) split, combine or reclassify any outstanding shares of Telco Common Stock, or declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to such shares; (iv) redeem, purchase or o...
Conduct of Business Pending the Mergers. Pacific and Enova have each determined to enter into the transactions contemplated hereby in order to compete as aggressively as possible in the rapidly evolving energy marketplace. Consistent with their mutual objectives Pacific and Enova each intend to pursue, jointly or independently, strategic opportunities that may arise between the date of this Agreement and the Effective Time in accordance with the terms of this Article V. Consistent with the foregoing, but for the purpose of assuring that strategic opportunities are pursued that are consistent with each party's objectives, after the date hereof and prior to the Effective Time or earlier termination of this Agreement, Pacific and Enova each agrees as to itself and its subsidiaries, except (x) as expressly contemplated or permitted in this Agreement or the Energy Marketing Joint Venture Agreement, (y) to the extent required by rule, regulation statute or other law in connection with California Assembly Bill 1890 (Public Utilities: electrical restructurinx) xr in connection with the CPUC and the FERC industry restructuring proceedings, and (z) to the extent the other parties hereto shall otherwise consent in writing, to the following: (a) Ordinary Course of Business. Each party hereto shall, and shall cause its respective subsidiaries to, carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conducted and use all commercially reasonable efforts to preserve intact their present business organizations and goodwill, preserve the goodwill and relationships with customers, suppliers and others having business dealings with them and, subject to prudent management of workforce needs and ongoing programs currently in force, keep available the services of their present officers and employees. Except as set forth in Section 5.01(a) of the Pacific Disclosure Schedule or the Enova Disclosure Schedule, respectively, no party shall, nor shall any party permit any of its subsidiaries to, enter into a new line of business, or make any change in the line of business it engages in as of the date hereof involving any material investment of assets or resources or any material exposure to liability or loss, in the case of Pacific, to Pacific and its subsidiaries taken as a whole, and in the case of Enova, to Enova and its subsidiaries taken as a whole.
Conduct of Business Pending the Mergers. Section 5.1 Conduct of Business of the Company. After the date hereof and prior to the Effective Time of the First Merger or earlier termination of this Agreement, the Company agrees, each as to itself and to each of its subsidiaries, except as expressly contemplated or permitted in this Agreement and except as expressly contemplated or permitted in Section 5.1 of the Company Disclosure Schedule, or to the extent Parent otherwise consents in writing (which consent as to matters described in clause (m) shall not be unreasonably withheld):
Conduct of Business Pending the Mergers. During the period from the date of this Agreement to the Effective Time, the Company agrees to conduct its business, and to cause the Company Subsidiaries (as defined in the Master Agreement) to conduct their respective businesses, and to observe all of the agreements, covenants and obligations, and to cause each of the Company Subsidiaries to observe all the agreements, covenants and obligations, in the manner described in Section 7 of the Master Agreement, and such agreements, covenants and obligations are hereby incorporated herein by reference with the same force and effect as if set forth herein.
Conduct of Business Pending the Mergers. Section 5.1 Conduct of Business by the Company Pending the Closing.
(a) The Company agrees that between the date of this Agreement and the Company Merger Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 8.1, except (i) as expressly set forth in Schedule 5.1(a) of the Company Disclosure Letter, (ii) as required, contemplated or permitted pursuant to this Agreement, (iii) as may be required by Law or (iv) as consented to in writing by PECO (which consent shall not be unreasonably withheld, conditioned or delayed), the Company shall, and shall cause each of the other Acquired Companies to, (A) conduct their respective businesses in all material respects in the Ordinary Course of Business and shall use all reasonable efforts to keep intact their respective businesses and preserve their respective relationships with Governmental Entities, customers, suppliers, landlords, tenants, creditors, business associates and others with whom they deal, (B) use reasonable best efforts to maintain their respective assets and properties in their current condition (ordinary wear and tear excepted) and (C) use commercially reasonable efforts to maintain the Company’s status as a REIT within the meaning of the Code. Without limiting the generality of the foregoing, and except (I) as expressly set forth in Schedule 5.1(a) of the Company Disclosure Letter, (II) as required, contemplated or permitted pursuant to this Agreement, (III) as required by applicable Law or (IV) as consented to in writing by PECO (which consent shall not be unreasonably withheld, conditioned or delayed), between the date of this Agreement and the Company Merger Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 8.1, the Company shall not, and shall not permit any other Acquired Company to, directly or indirectly:
(i) amend its charter or bylaws (or comparable documents);
(ii) adjust, split, combine, subdivide or reclassify any shares of capital stock;
(iii) subject to Section 6.9(a), declare, set aside for payment or pay any dividend or other distribution on or make any other distributions (whether in cash, stock, property or otherwise) with respect to shares of beneficial interest or capital stock or other equity interests of the Company, the Company Operating Partnership or any Company Subsidiary, except for (A) the declaration and payment of dividends or other distributions by any directly or indirectly wholly owned...
