Common use of Controlled Covenants Clause in Contracts

Controlled Covenants. Controlled covenants to Distributing that, without the prior written consent of Distributing, (i) during the two-year period following the Distribution Date, other than pursuant to an Ethanol Facility Disposition, (A) neither Controlled, nor any member of the Controlled Group conducting an Active Business, will, or will agree to, discontinue such business or dissolve, liquidate or engage in any transaction involving a merger, consolidation or other reorganization, and (B) none of Controlled or any other member of the Controlled Group will, or will agree to, sell, exchange, distribute or otherwise dispose of any asset of any member of the Controlled Group, except in the ordinary course of business or as set forth on Schedule 9(b)(i), (ii) Controlled will not, nor will it permit any member of the Controlled Group to, take any action inconsistent with the information and representations furnished to the IRS in connection with the Ruling Request, or to counsel in connection with any opinion being delivered by counsel with respect to the Distribution, regardless of whether such information and representations were included in the ruling issued by the IRS or in the opinion of counsel, (iii) Controlled will not, nor will it permit any member of the Controlled Group to, take any action, other than pursuant to an Ethanol Facility Disposition, that management of Controlled knows, or should have known, is reasonably likely to contravene any agreement with a Taxing Authority entered into prior to the Distribution Date to which any member of the Controlled Group or the Distributing Group is a party, (iv) during the two-year period following the Distribution Date, Controlled will not repurchase stock of Controlled in a manner contrary to the requirements of IRS Revenue Procedure 96-30, as modified by IRS Revenue Procedure 2003-48, or in a manner contrary to the representations made in the Ruling Request, (v) on or after the Distribution Date, Controlled will not, nor will it permit any member of the Controlled Group to, make or change any accounting method, amend any Return or take any Tax position on any Return, take any other action or enter into any transaction that results in any increased Tax liability or reduction of any Tax asset of the Distributing Group or any member thereof in respect of any Pre-Deconsolidation Period, (vi) during the two-year period following the Distribution Date, none of Controlled or any other member of the Controlled Group will, or will agree to, sell or otherwise issue to any Person, or redeem or otherwise acquire from any Person, any Equity Securities of Controlled or any other member of the Controlled Group; provided, however, that Controlled may repurchase stock of Controlled as permitted by Section 9(b)(iv) hereof and may issue such Equity Securities to the extent such issuances satisfy Safe Harbor VIII (relating to acquisitions in connection with a person’s performance of services) or Safe Harbor IX (relating to acquisitions by a retirement plan of an employer) of Treasury Regulation Section 1.355-7(d), and (vii) during the two-year period following the Distribution Date, none of Controlled or any other member of the Controlled Group will (A) solicit any Person to make a tender offer for, or otherwise acquire or sell, the Equity Securities of Controlled, (B) participate in or support any unsolicited tender offer for, or other acquisition, issuance or disposition of, the Equity Securities of Controlled or (C) approve or otherwise permit any proposed business combination or any transaction which, in the case of clauses (A) or (B), individually or in the aggregate, together with any transaction occurring within the four-year period beginning on the date which is two years before the Distribution Date and any other transaction which is part of a plan or series of related transactions (within the meaning of Section 355(e) of the Code) that includes the Distribution, could result in one or more Persons acquiring (except for acquisitions that otherwise satisfy Safe Harbor VIII (relating to acquisitions in connection with a person’s performance of services) or Safe Harbor IX (relating to acquisitions by a retirement plan of an employer) of Treasury Regulation Section 1.355−7(d)) directly or indirectly stock representing a 40% or greater interest, by vote or value, in Controlled (or any successor thereto).

Controlled Covenants. Controlled covenants to Distributing that, without either (i) the prior written consent of Distributing,, (ii) a supplemental private letter ruling issued by the IRS, or (iii) an unqualified written opinion of tax counsel selected by Distributing (in the case of (ii) and (iii), satisfactory to Distributing in its sole discretion): (i) during the twotwelve-year month period following the Distribution Date, other than pursuant to an Ethanol Facility Disposition, (A) neither Controlled, nor any member of the Controlled Group conducting an Active Business, willwill liquidate, merge or will agree to, discontinue such business or dissolve, liquidate or engage in any transaction involving a merger, consolidation or other reorganization, and (B) none of Controlled or consolidate with any other member of Person, (ii) during the two-year period following the Distribution Date, Controlled Group will, or will agree to, not sell, exchange, distribute or otherwise dispose of any asset its assets or those of any member of the Controlled Group, except Group in a manner that would result in any increased Tax liability or reduction of any Tax asset of the ordinary course of business Distributing Group or as set forth on Schedule 9(b)(i)any member thereof, (iiiii) following the Distribution, Controlled will, for a minimum of twelve months, continue each Active Business, (iv) Controlled will not, nor will it permit any member of the Controlled Group to, take any action inconsistent with the information and representations furnished to the IRS or the FTB in connection with the Ruling Request, or to counsel in connection with any opinion being delivered by counsel with respect to the DistributionDistribution or the Restructuring, regardless of whether such information and representations were included in the ruling issued by the IRS or FTB or in the opinion of counsel, (iiiv) Controlled will not, nor will it permit any member of the Controlled Group to, not take any action, other than pursuant to an Ethanol Facility Disposition, action that management of Controlled knows, or should have known, is reasonably likely to contravene any agreement with a Taxing Authority entered into prior to the Distribution Date to which any member of the Controlled Group or the Distributing Group is a party, (ivvi) during the two-year period following the Distribution Date, Controlled will not repurchase stock of Controlled in a manner contrary to the requirements of IRS Revenue Procedure 96-30, as modified by IRS Revenue Procedure 2003-48, or in a manner contrary to the representations made in the Ruling Request, (vvii) other than to the extent such action is required by the Separation Agreement, on or after the Distribution Date, Controlled will not, nor will it permit any member of the Controlled Group to, make or change any accounting method, amend any Return or take any Tax position on any Return, take any other action or enter into any transaction that results in any increased Tax liability or reduction of any Tax asset of the Distributing Group or any member thereof in respect of any Pre-Deconsolidation Distribution Period,, and (viviii) during the two-year period following the Distribution Date, none Controlled will not enter into any transaction or make any change in its equity structure (including stock issuances, pursuant to the exercise of Controlled options or any other member of otherwise, options grants, the Controlled Group willadoption of, or will agree toauthorization of shares under, sell or otherwise issue to any Persona stock option plan, capital contributions, or redeem or otherwise acquire from any Personacquisitions, any Equity Securities of Controlled or any other member of but not including, the Controlled Group; provided, however, that Controlled Distribution) which may repurchase stock of Controlled as permitted by Section 9(b)(iv) hereof and may issue such Equity Securities to the extent such issuances satisfy Safe Harbor VIII (relating to acquisitions in connection with a person’s performance of services) or Safe Harbor IX (relating to acquisitions by a retirement plan of an employer) of Treasury Regulation Section 1.355-7(d), and (vii) during the two-year period following cause the Distribution Date, none of Controlled or any other member of the Controlled Group will (A) solicit any Person to make a tender offer for, or otherwise acquire or sell, the Equity Securities of Controlled, (B) participate in or support any unsolicited tender offer for, or other acquisition, issuance or disposition of, the Equity Securities of Controlled or (C) approve or otherwise permit any proposed business combination or any transaction which, in the case of clauses (A) or (B), individually or in the aggregate, together with any transaction occurring within the four-year period beginning on the date which is two years before the Distribution Date and any other transaction which is be treated as part of a plan pursuant to which one or series of related transactions (more Persons acquire directly or indirectly Controlled stock representing a “50-percent or greater interest” within the meaning of Section 355(e355(d)(4) of the Code) that includes . Controlled agrees that, regardless of whether Distributing consents to, or receives a ruling or opinion with respect to, any action referred to in this Section 9(b), Distributing is to have no liability for any Tax resulting from any such action and Controlled agrees to indemnify and hold harmless the Distribution, could result in one or more Persons acquiring (except for acquisitions that otherwise satisfy Safe Harbor VIII (relating to acquisitions Distributing Group against any such Tax. Controlled shall also bear all costs incurred by Distributing in connection with obtaining any opinion of counsel, a personsupplemental private letter ruling or in connection with Distributing’s performance determination of services) whether or Safe Harbor IX (relating not to acquisitions by a retirement plan of an employer) of Treasury Regulation grant any written consent required under this Section 1.355−7(d)) directly or indirectly stock representing a 40% or greater interest, by vote or value, in Controlled (or any successor thereto9(b).

Controlled Covenants. Controlled covenants to Distributing that, without the prior written consent of Distributing, (i) during the two-year period following the Distribution Date, other than pursuant to an Ethanol Facility Disposition, (A) neither Controlled, nor any member of the Controlled Group conducting an Active Business, will, or will agree to, discontinue such business or dissolve, liquidate or engage in any transaction involving a merger, consolidation or other reorganization, and (B) none of Controlled or any other member of the Controlled Group will, or will agree to, sell, exchange, distribute or otherwise dispose of any asset of any member of the Controlled Group, except in the ordinary course of business or as set forth on Schedule 9(b)(i), (ii) Controlled will not, nor will it permit any member of the Controlled Group to, take any action inconsistent with the information and representations furnished to the IRS in connection with the Ruling Request, or to counsel in connection with any opinion being delivered by counsel with respect to the Distribution, regardless of whether such information and representations were included in the ruling issued by the IRS or in the opinion of counsel, (iii) Controlled will not, nor will it permit any member of the Controlled Group to, take any action, other than pursuant to an Ethanol Facility Disposition, that management of Controlled knows, or should have known, is reasonably likely to contravene any agreement with a Taxing Authority entered into prior to the Distribution Date to which any member of the Controlled Group or the Distributing Group is a party, (iv) during the two-year period following the Distribution Date, Controlled will not repurchase stock of Controlled in a manner contrary to the requirements of IRS Revenue Procedure 96-30, as modified by IRS Revenue Procedure 2003-48, or in a manner contrary to the representations made in the Ruling Request, (v) on or after the Distribution Date, Controlled will not, nor will it permit any member of the Controlled Group to, make or change any accounting method, amend any Return or take any Tax position on any Return, take any other action or enter into any transaction that results in any increased Tax liability or reduction of any Tax asset of the Distributing Group or any member thereof in respect of any Pre-Deconsolidation Period, (vi) during the two-year period following the Distribution Date, none of Controlled or any other member of the Controlled Group will, or will agree to, sell or otherwise issue to any Person, or redeem or otherwise acquire from any Person, any Equity Securities of Controlled or any other member of the Controlled Group; provided, however, that Controlled may repurchase stock of Controlled as permitted by Section 9(b)(iv) hereof and may issue such Equity Securities to the extent such issuances satisfy Safe Harbor VIII (relating to acquisitions in connection with a person’s performance of services) or Safe Harbor IX (relating to acquisitions by a retirement plan of an employer) of Treasury Regulation Section 1.355-7(d), and (vii) during the two-year period following the Distribution Date, none of Controlled or any other member of the Controlled Group will (A) solicit any Person to make a tender offer for, or otherwise acquire or sell, the Equity Securities of Controlled, (B) participate in or support any unsolicited tender offer for, or other acquisition, issuance or disposition of, the Equity Securities of Controlled or (C) approve or otherwise permit any proposed business combination or any transaction which, in the case of clauses (A) or (B), individually or in the aggregate, together with any transaction occurring within the four-year period beginning on the date which is two years before the Distribution Date and any other transaction which is part of a plan or series of related transactions (within the meaning of Section 355(e) of the Code) that includes the Distribution, could result in one or more Persons acquiring (except for acquisitions that otherwise satisfy Safe Harbor VIII (relating to acquisitions in connection with a person’s performance of services) or Safe Harbor IX (relating to acquisitions by a retirement plan of an employer) of Treasury Regulation Section 1.355−7(d1.355–7(d)) directly or indirectly stock representing a 40% or greater interest, by vote or value, in Controlled (or any successor thereto).

Controlled Covenants. Controlled covenants to Distributing that, without either (i) the prior written consent of Distributing,, (ii) a supplemental private letter ruling issued by the IRS, or (iii) an unqualified written opinion of tax counsel selected by Distributing (in the case of (ii) and (iii), satisfactory to Distributing in its sole discretion): (i) during the twotwelve-year month period following the Distribution Date, other than pursuant to an Ethanol Facility Disposition, (A) neither Controlled, nor any member of the Controlled Group conducting an Active Business, willwill liquidate, merge or will agree to, discontinue such business or dissolve, liquidate or engage in any transaction involving a merger, consolidation or other reorganization, and (B) none of Controlled or consolidate with any other member of Person, (ii) during the two-year period following the Distribution Date, Controlled Group will, or will agree to, not sell, exchange, distribute or otherwise dispose of any asset its assets or those of any member of the Controlled Group, except Group in a manner that would result in any increased Tax liability or reduction of any Tax asset of the ordinary course of business Distributing Group or as set forth on Schedule 9(b)(i)any member thereof, (iiiii) following the Distribution, Controlled will, for a minimum of twelve months, continue each Active Business, (iv) Controlled will not, nor will it permit any member of the Controlled Group to, take any action inconsistent with the information and representations furnished to the IRS or the FTB in connection with the Ruling Request, or to counsel in connection with any opinion being delivered by counsel with respect to the DistributionDistribution or the Restructuring, regardless of whether such information and representations were included in the ruling issued by the IRS or FTB or in the opinion of counsel, (iiiv) Controlled will not, nor will it permit any member of the Controlled Group to, not take any action, other than pursuant to an Ethanol Facility Disposition, action that management of Controlled knows, or should have known, is reasonably likely to contravene any agreement with a Taxing Authority entered into prior to the Distribution Date to which any member of the Controlled Group or the Distributing Group is a party, (ivvi) during the two-year period following the Distribution Date, Controlled will not repurchase stock of Controlled in a manner contrary to the requirements of IRS Revenue Procedure 96-30, as modified by IRS Revenue Procedure 2003-48, or in a manner contrary to the representations made in the Ruling Request, (vvii) other than to the extent such action is required by the Separation Agreement, on or after the Distribution Date, Controlled will not, nor will it permit any member of the Controlled Group to, make or change any accounting method, amend any Return or take any Tax position on any Return, take any other action or enter into any transaction that results in any increased Tax liability or reduction of any Tax asset of the Distributing Group or any member thereof in respect of any Pre-Deconsolidation Distribution Period,, and (viviii) during the two-year period following the Distribution Date, none Controlled will not enter into any transaction or make any change in its equity structure (including stock issuances, pursuant to the exercise of Controlled options or any other member of otherwise, options grants, the Controlled Group willadoption of, or will agree toauthorization of shares under, sell or otherwise issue to any Persona stock option plan, capital contributions, or redeem or otherwise acquire from any Personacquisitions, any Equity Securities of Controlled or any other member of but not including, the Controlled Group; provided, however, that Controlled Distribution) which may repurchase stock of Controlled as permitted by Section 9(b)(iv) hereof and may issue such Equity Securities to the extent such issuances satisfy Safe Harbor VIII (relating to acquisitions in connection with a person’s performance of services) or Safe Harbor IX (relating to acquisitions by a retirement plan of an employer) of Treasury Regulation Section 1.355-7(d), and (vii) during the two-year period following cause the Distribution Date, none of Controlled or any other member of the Controlled Group will (A) solicit any Person to make a tender offer for, or otherwise acquire or sell, the Equity Securities of Controlled, (B) participate in or support any unsolicited tender offer for, or other acquisition, issuance or disposition of, the Equity Securities of Controlled or (C) approve or otherwise permit any proposed business combination or any transaction which, in the case of clauses (A) or (B), individually or in the aggregate, together with any transaction occurring within the four-year period beginning on the date which is two years before the Distribution Date and any other transaction which is be treated as part of a plan (or series of related transactions (transactions) pursuant to which one or more Persons acquire directly or indirectly Controlled stock representing a “50-percent or greater interest” within the meaning of Section 355(e355(d)(4) of the Code) that includes . Controlled agrees that, regardless of whether Distributing consents to, or receives a ruling or opinion with respect to, any action referred to in this Section 9(b), Distributing is to have no liability for any Tax resulting from any such action and Controlled agrees to indemnify and hold harmless the Distribution, could result in one or more Persons acquiring (except for acquisitions that otherwise satisfy Safe Harbor VIII (relating to acquisitions Distributing Group against any such Tax. Controlled shall also bear all costs incurred by Distributing in connection with obtaining any opinion of counsel, a personsupplemental private letter ruling or in connection with Distributing’s performance determination of services) whether or Safe Harbor IX (relating not to acquisitions by a retirement plan of an employer) of Treasury Regulation grant any written consent required under this Section 1.355−7(d)) directly or indirectly stock representing a 40% or greater interest, by vote or value, in Controlled (or any successor thereto9(b).