Common use of Limits on Proposed Acquisition Transactions and Other Transactions During Restricted Period Clause in Contracts

Limits on Proposed Acquisition Transactions and Other Transactions During Restricted Period. During the Restricted Period, neither CRG nor Fiesta shall: (a) enter into, or permit to be entered into on its behalf, any agreement, understanding, arrangement, or substantial negotiations (within the meaning of Section 355(e) of the Code and the Treasury Regulations promulgated thereunder) regarding a Proposed Acquisition Transaction; (b) enter into any Proposed Acquisition Transaction, approve any Proposed Acquisition Transaction for any purpose, or allow any Proposed Acquisition Transaction to occur with respect to CRG or Fiesta; (c) merge or consolidate with any other Person or liquidate or partially liquidate; or approve or allow any merger, consolidation, liquidation, or partial liquidation of any of the Active Business Entities; (d) approve or allow the discontinuance, cessation, or sale or other transfer (to an Affiliate or otherwise) of, or a material change in, any Active Business; (e) approve or allow the sale, issuance, or other disposition (to an Affiliate or otherwise), directly or indirectly, of any share of, or other equity interest or an instrument convertible into an equity interest in, any of the Active Business Entities; (f) sell or otherwise dispose of assets in manner which would adversely affect Tax-Free Status; (g) purchase, directly or through any Affiliate, any of its outstanding stock after the Distribution, other than through stock purchases meeting the requirements of Section 4.05(1)(b) of Revenue Procedure 96-30 (without regard to the effect of Revenue Procedure 2003-48 on Revenue Procedure 96-30); (h) take any action or fail to take any action, or permit any other CRG Party or Fiesta Party to take any action or fail to take any action, that is inconsistent with any representation or covenant made in the IRS Ruling or in any Tax Representation Letter, or that is inconsistent with any ruling or opinion in the IRS Ruling or any Tax Opinion; or (i) take any action or permit any other CRG Party or Fiesta Party to take any action (including any transactions with a third-party or any transaction with any Fiesta Party) that, individually or in the aggregate (taking into account other transactions described in this Section 5.3) would be reasonably likely to jeopardize Tax-Free Status; provided, however, that CRG and Fiesta shall be permitted to take such action or one or more actions set forth in the foregoing clauses (a) through (i) if, prior to taking any such actions, the Party taking the action (the “Acting Party”) set forth in the foregoing clauses (a) through (k) shall (1) have received a favorable private letter ruling from the IRS, or a ruling from another Taxing Authority that confirms that such action or actions will not result in Distribution Taxes, taking into account such actions and any other relevant transactions in the aggregate (a “Post-Distribution Ruling”), in form and substance satisfactory to the other Party (the “Non-Acting Party”) in its discretion, which discretion shall be reasonably exercised in good faith solely to prevent the imposition on the Non-Acting Party, or responsibility for payment by the Non-Acting Party, of Distribution Taxes or (2) have received an Unqualified Tax Opinion that confirms that such action or actions will not result in Distribution Taxes, taking into account such actions and any other relevant transactions in the aggregate, in form and substance satisfactory to the Non-Acting Party, acting reasonably and in good faith solely to prevent the imposition on the Non-Acting Party, or responsibility for payment by the Non-Acting Party, of Distribution Taxes. The Acting Party shall provide a copy of the Post-Distribution Ruling or the Unqualified Tax Opinion described in this paragraph to the Non-Acting Party as soon as practicable prior to taking or failing to take any action set forth in the foregoing clause (a) through (i). The Non-Acting Party’s evaluation of a Post-Distribution Ruling or Unqualified Tax Opinion may consider, among other factors, the appropriateness of any underlying assumptions, representations, and covenants made in connection with such Post-Distribution Ruling or Unqualified Tax Opinion. The Acting Party shall bear all costs and expenses of securing any such Post-Distribution Ruling or Unqualified Tax Opinion and shall reimburse the Non-Acting Party for all reasonable out-of-pocket costs and expenses that the Non-Acting Party may incur in good faith in seeking to obtain or evaluate any such Post-Distribution Ruling or Unqualified Tax Opinion.

Limits on Proposed Acquisition Transactions and Other Transactions During Restricted Period. (a) During the Restricted Period, neither CRG nor Fiesta shallParent and HY: (ai) enter into, or permit shall continue and cause to be entered continued the active conduct of the Coal Mining Business and the Lift Truck Business, in each case taking into on its behalf, any agreement, understanding, arrangement, or substantial negotiations (within the meaning of account Section 355(e355(b)(3) of the Code and as conducted immediately prior to the Treasury Regulations promulgated thereunder) regarding a Proposed Acquisition TransactionDistribution; (bii) shall not voluntarily dissolve, liquidate, or partially liquidate (including any action that is treated as a liquidation for federal Income Tax purposes); (iii) shall not enter into any Proposed Acquisition TransactionTransaction or, approve any Proposed Acquisition Transaction for any purposeTransaction, or allow permit any Proposed Acquisition Transaction to occur with respect to CRG or Fiestaoccur; (civ) merge or consolidate with any other Person or liquidate or partially liquidate; or approve or allow any merger, consolidation, liquidation, or partial liquidation of any of the Active Business Entities; (d) approve or allow the discontinuance, cessation, or sale or other transfer (to an Affiliate or otherwise) of, or a material change in, any Active Business; (e) approve or allow the sale, issuance, or other disposition (to an Affiliate or otherwise), directly or indirectly, of any share of, or other equity interest or an instrument convertible into an equity interest in, any of the Active Business Entities; (f) sell shall not redeem or otherwise dispose of assets in manner which would adversely affect Tax-Free Status; repurchase (g) purchase, directly or through an Affiliate) any Affiliatestock, any of its outstanding stock after or rights to acquire stock, except to the Distribution, other than through stock purchases meeting the requirements of extent such repurchases satisfy Section 4.05(1)(b) of Revenue Procedure 96-30 (without regard as in effect prior to the effect amendment of such Revenue Procedure by Revenue Procedure 2003-48 on (provided, however, that the fact that any such redemption or repurchase satisfies Section 4.05(1)(b) of Revenue Procedure 96-3030 shall not prevent such redemption or repurchase from being considered, or taken into account for purposes of another transaction constituting, a Proposed Acquisition Transaction, in which case clause (iii) shall apply); (hv) shall not amend its certificate of incorporation (or other organizational documents), or take any other action or approve or permit the taking of any action, whether through a stockholder vote or otherwise, affecting the relative voting rights of the capital stock (including through the conversion of any capital stock into another class of capital stock); (vi) shall not issue shares of a new class of nonvoting stock; (vii) shall not merge or consolidate with any other Person; provided, however, that if Parent or HY acquires equity of another Person in a transaction that is not otherwise described in clauses (i) through (vi), (viii), or (ix) of this Section 6.2(a), then the merger or consolidation of such Person with and into Parent or HY (with Parent or HY surviving), as applicable, shall not constitute a merger or consolidation described in this clause (vii); (viii) shall not sell, transfer, or otherwise dispose of or agree to, sell, transfer or otherwise dispose of (including in any transaction treated for U.S. federal Income Tax purposes as a sale, transfer or disposition, and including any sale, transfer or other disposition to an Subsidiary or otherwise) assets (including, any shares of capital stock of a Subsidiary) that, in the aggregate, constitute more than 35% of its consolidated gross or net assets. The foregoing sentence shall not apply to (A) sales, transfers, or dispositions of assets in the Ordinary Course of Business, (B) any cash paid to acquire assets from an unrelated Person in an arm’s-length transaction, (C) any assets transferred to a Person that is disregarded as an entity separate from the transferor for U.S. federal Income Tax purposes or (D) any mandatory or optional repayment (or pre-payment) of any indebtedness of such company. The percentages of consolidated gross and net assets sold, transferred, or otherwise disposed of, shall be based on the fair market value of the gross or net assets, as the case may be, of Parent and HY, as applicable, as of the Distribution Date. For purposes of this Section 6.2(a)(viii), a merger of Parent or HY with and into any Person shall constitute a disposition of all of the assets of Parent or HY, respectively; (ix) shall not take any other action or actions (including any action or fail transaction that would be reasonably likely to take any action, or permit any other CRG Party or Fiesta Party to take any action or fail to take any action, that is be inconsistent with any representation or covenant made in the IRS Ruling or in any Tax Representation Letter, or that is inconsistent with any ruling or opinion in the IRS Ruling or any Tax Opinion; or (iMaterials) take any action or permit any other CRG Party or Fiesta Party to take any action (including any transactions with a third-party or any transaction with any Fiesta Party) that, individually or which in the aggregate (and taking into account any other transactions described in this Section 5.36.2(a)) would be reasonably likely to have the effect of causing or permitting one or more Persons (whether or not acting in concert) to acquire directly or indirectly stock representing a Fifty-Percent or Greater Interest in Parent or HY or otherwise jeopardize the Tax-Free Status; providedStatus of the Transactions. (b) Notwithstanding the restrictions imposed by Section 6.2(a), howeverduring the Restriction Period, that CRG Parent and Fiesta HY shall be permitted to take such action or one or more actions set forth in the foregoing clauses (ai) through (i) ix), if, prior to taking any such actions, the Party taking the action (the “Acting Party”) set forth in the foregoing clauses (ai) through (kix) shall (1) have received a favorable private letter ruling from the IRS, or a ruling from another appropriate Taxing Authority that confirms that such action or actions will not result in Distribution Taxesaffect the Tax-Free Status of the Transactions, taking into account such actions and any other relevant transactions in the aggregate (a “Post-Distribution Ruling”), in form and substance satisfactory to the other Party (the “Non-Acting Party”) in its discretion), which discretion shall be reasonably exercised in good faith solely to prevent the imposition on the Non-Acting Party, or responsibility for payment by the Non-Acting Party, of Distribution Taxes or (2) have received an Unqualified Tax Opinion that confirms that such action or actions will not result affect the Tax-Free Status of the Transactions, or (3) the Non-Acting Party shall have waived in Distribution Taxeswriting the requirement to obtain such ruling or opinion. In determining whether a ruling or opinion is satisfactory, taking into account such actions and any other relevant transactions in the aggregateNon-Acting Party shall exercise its discretion, in form good faith, solely to preserve the Tax-Free Status of the Transactions and substance satisfactory to may consider, among other factors, the appropriateness of any underlying assumptions or representations used as a basis for the ruling or opinion and the Non-Acting Party, acting reasonably and in good faith solely to prevent the imposition ’s views on the Non-Acting Party, substantive merits of such ruling or responsibility for payment by the Non-Acting Party, of Distribution Taxesopinion. The Acting Party shall provide a copy of the Post-Distribution Ruling or the Unqualified Tax Opinion described in this paragraph to the Non-Acting Party as soon as practicable prior to taking or failing to take any action set forth in the foregoing clause (ai) through (iix). The Non-Acting Party’s evaluation of a Post-Distribution Ruling or Unqualified Tax Opinion may consider, among other factors, the appropriateness of any underlying assumptions, representations, and covenants made in connection with such Post-Distribution Ruling or Unqualified Tax Opinion. The Acting Party shall bear all costs and expenses of securing any such Post-Distribution Ruling or Unqualified Tax Opinion and shall reimburse the Non-Acting Party for all reasonable out-of-pocket costs and expenses that the Non-Acting Party may incur in good faith in seeking to obtain or evaluate any such Post-Distribution Ruling or Unqualified Tax Opinion.

Limits on Proposed Acquisition Transactions and Other Transactions During Restricted Period. During the Restricted Period, neither CRG nor Fiesta shallColumbia shall not, in a single transaction or Series of Transactions: (a) enter into, or permit to be entered into on its behalf, any agreement, understanding, arrangementapprove, or substantial negotiations (within the meaning of Section 355(e) of the Code and the Treasury Regulations promulgated thereunder) regarding a allow to occur any Proposed Acquisition Transaction; (b) enter into any Proposed Acquisition Transaction, approve any Proposed Acquisition Transaction for any purpose, or allow any Proposed Acquisition Transaction to occur with respect to CRG or Fiesta; (c) merge or consolidate with any other Person Person, or liquidate or partially liquidate; , or approve or allow to occur any merger, consolidation, liquidation, or partial liquidation of any of the Active Business EntitiesEntity; (dc) approve or allow to occur the discontinuance, cessation, or sale or other transfer (to an Affiliate or otherwise) of, or a material change in, any the Active Business; (ed) approve or allow to occur the saleissuance (including to an Affiliate that is not wholly-owned, issuancedirectly or indirectly, by the transferor) of any Stock or an instrument convertible into Stock in Columbia, MLP GP, OpCo GP, Columbia OpCo or MLP; (e) sell or otherwise directly or indirectly dispose of more than 30 percent of its consolidated gross or net assets, or approve or allow the sale or other disposition (to an Affiliate or otherwise), directly ) of more than 30 percent of the Stock or indirectly, the consolidated gross or net assets of any share ofActive Business Entity (in each case, or other equity interest or an instrument convertible into an equity interest in, any excluding sales of assets in the ordinary course of business and measured based on fair market values as of the Active Business EntitiesDistribution Date); (f) sell amend its certificate of incorporation (or otherwise dispose other organizational documents), or take any other action or approve or allow to occur the taking of assets in manner which would adversely affect Tax-Free Statusany action, whether through a stockholder vote or otherwise, affecting the voting rights of the owners of its Stock or the Stock of MLP GP, OpCo GP, Columbia OpCo or MLP; (g) purchase, directly or through any Affiliate, any of its outstanding stock Stock after the Distribution, other than through stock Stock purchases meeting the requirements of Section 4.05(1)(b) of Revenue Procedure 96-30 (without regard to the effect of Revenue Procedure 2003-48 on Revenue Procedure 96-30); (h) take any action or fail to take any action, or permit any other CRG Party or Fiesta Columbia Party to take any action or fail to take any action, that is inconsistent with any representation made or covenant made assumption in the IRS Ruling or in any Tax Representation LetterLetters, or that is inconsistent with any ruling or opinion in the IRS Ruling or any Tax OpinionOpinions; or (i) take any action or permit any other CRG Party or Fiesta Columbia Party to take any action (including any transactions with a third-party or any transaction with any Fiesta Party) that, individually or in the aggregate (taking into account other transactions described in this Section 5.35.4 or otherwise contemplated by the Parties) would be reasonably likely to jeopardize Tax-Free Status; provided, however, that CRG and Fiesta shall be permitted to take such action or one or more actions set forth in the foregoing clauses (a) through (i) if, prior to taking any such actions, the Party taking the action (the “Acting Party”) set forth in the foregoing clauses (a) through (k) shall (1) have received a favorable private letter ruling from the IRS, or a ruling from another Taxing Authority that confirms that such action or actions will not result in Distribution Taxes, taking into account such actions and any other relevant transactions in the aggregate (a “Post-Distribution Ruling”), in form and substance satisfactory to the other Party (the “Non-Acting Party”) in its discretion, which discretion shall be reasonably exercised in good faith solely to prevent the imposition on the Non-Acting Party, or responsibility for payment by the Non-Acting Party, of Distribution Taxes or (2) have received an Unqualified Tax Opinion that confirms that such action or actions will not result in Distribution Taxes, taking into account such actions and any other relevant transactions in the aggregate, in form and substance satisfactory to the Non-Acting Party, acting reasonably and in good faith solely to prevent the imposition on the Non-Acting Party, or responsibility for payment by the Non-Acting Party, of Distribution Taxes. The Acting Party shall provide a copy of the Post-Distribution Ruling or the Unqualified Tax Opinion described in this paragraph to the Non-Acting Party as soon as practicable prior to taking or failing to take any action set forth in the foregoing clause (a) through (i). The Non-Acting Party’s evaluation of a Post-Distribution Ruling or Unqualified Tax Opinion may consider, among other factors, the appropriateness of any underlying assumptions, representations, and covenants made in connection with such Post-Distribution Ruling or Unqualified Tax Opinion. The Acting Party shall bear all costs and expenses of securing any such Post-Distribution Ruling or Unqualified Tax Opinion and shall reimburse the Non-Acting Party for all reasonable out-of-pocket costs and expenses that the Non-Acting Party may incur in good faith in seeking to obtain or evaluate any such Post-Distribution Ruling or Unqualified Tax Opinion.

Limits on Proposed Acquisition Transactions and Other Transactions During Restricted Period. During the Restricted Period, neither CRG nor Fiesta shallCabinets shall not: (a) enter into, or permit to be entered into on its behalf, any agreement, understanding, arrangement, or substantial negotiations (within the meaning of Section 355(e) of the Code and the Treasury Regulations promulgated thereunder) with a Restricted Person regarding a Proposed Acquisition Transaction; (b) enter into any Proposed Acquisition Transaction, approve any Proposed Acquisition Transaction for any purpose, or allow any Proposed Acquisition Transaction to occur with respect to CRG or Fiestaoccur; (c) merge or consolidate with any other Person or liquidate or partially liquidate; liquidate or approve or allow any merger, consolidation, liquidation, or partial liquidation of any of the Active Business EntitiesEntities (other than a merger, consolidation or liquidation undertaken in connection with any internal restructuring as long as such action does not cause the Cabinets “separate affiliated group” (as defined in Section 355(b)(3) of the Code) to cease conducting the Active Business being conducted by such Active Business Entity; (d) approve or allow (i) the discontinuance, cessation, or sale or other transfer (to an Affiliate or otherwise) ofof any Active Business (other than a sale or other transfer undertaken in connection with any internal restructuring transaction so long as such action does not cause the Cabinets separate affiliated group to cease conducting the Active Business), or (ii) the discontinuance, cessation, or a material change in, any Active Business; (e) approve or allow the sale, issuance, or other disposition (to an Affiliate or otherwise), directly or indirectly, of any share of, or other equity interest or an instrument convertible into an equity interest in, any of the Active Business EntitiesEntities (other than a sale, issuance or other disposition undertaken in connection with any internal restructuring transaction as long as such action does not cause the Cabinets separate affiliated group to cease conducting the Active Business being conducted by such Active Business Entity); (f) sell or otherwise dispose of more than 40 percent of its consolidated gross or net assets, or approve or allow the sale or other disposition (to an Affiliate or otherwise) of more than 40 percent of its consolidated gross or net assets or more than 40 percent of the consolidated gross or net assets of any of the Active Business Entities (in manner which would adversely affect Tax-Free Statuseach case, excluding sales in the ordinary course of business and measured based on fair market values as of the Distribution Date); (g) amend its certificate of incorporation (or other organizational documents), or take any other action or approve or allow the taking of any action, whether through a stockholder vote or otherwise, affecting the voting rights of Cabinets; (h) issue shares of a new class of nonvoting stock or approve or allow Cabinets to issue shares of a new class of nonvoting stock; (i) purchase, directly or through any Affiliate, any of its outstanding stock after the Distribution, other than through stock purchases meeting the requirements of Section 4.05(1)(b) of Revenue Procedure 96-30 (without regard to the effect of Revenue Procedure 2003-48 on Revenue Procedure 96-30); (hj) take any action or fail to take any action, or permit any other CRG Party or Fiesta Cabinets Party to take any action or fail to take any action, that is inconsistent with any representation or covenant made in the IRS Ruling or in any Tax Representation Letter, or that is inconsistent with any ruling or opinion in the IRS Ruling or any the Tax OpinionOpinions; or (ik) take any action or permit any other CRG Party or Fiesta Cabinets Party to take any action (including any transactions with a third-party or any transaction with any Fiesta Cabinets Party) that, individually or in the aggregate (taking into account other transactions described in this Section 5.35.4) would be reasonably likely to jeopardize Tax-Free Statusthe Intended Tax Treatment; provided, however, that CRG and Fiesta Cabinets shall be permitted to take such action or one or more actions set forth in the foregoing clauses (a) through (ij) if, prior to taking any such actions, the Party taking the action (the “Acting Party”) set forth in the foregoing clauses (a) through (k) Cabinets shall (1) have received a favorable private letter ruling from the IRS, or a ruling from another Taxing Authority IRS that confirms that such action or actions will not result in Distribution Taxes, taking into account such actions and any other relevant transactions in the aggregate (a “Post-Distribution Ruling”), in form and substance satisfactory to the other Party (the “Non-Acting Party”) Fortune Brands in its discretion, which discretion shall be reasonably exercised in good faith solely to prevent the imposition on the Non-Acting PartyFortune Brands, or responsibility for payment by the Non-Acting PartyFortune Brands, of Distribution Taxes or (2) have received an Unqualified Tax Opinion that confirms that such action or actions will not result in Distribution Taxes, taking into account such actions and any other relevant transactions in the aggregate, in form and substance satisfactory to the Non-Acting PartyFortune Brands, acting reasonably and in good faith solely to prevent the imposition on the Non-Acting PartyFortune Brands, or responsibility for payment by the Non-Acting PartyFortune Brands, of Distribution Taxes. The Acting Party Cabinets shall provide a copy of the Post-Distribution Ruling or the Unqualified Tax Opinion described in this paragraph to the Non-Acting Party Fortune Brands as soon as practicable prior to taking or failing to take any action set forth in the foregoing clause clauses (a) through (ij). The Non-Acting PartyFortune Brands’s evaluation of a Post-Distribution Ruling or Unqualified Tax Opinion may consider, among other factors, the appropriateness of any underlying assumptions, representations, and covenants made in connection with such Post-Distribution Ruling or Unqualified Tax Opinion. The Acting Party Cabinets shall bear all costs and expenses of securing any such Post-Distribution Ruling or Unqualified Tax Opinion and shall reimburse the Non-Acting Party Fortune Brands for all reasonable out-of-pocket costs and expenses that the Non-Acting Party Fortune Brands may incur in good faith in seeking to obtain or evaluate any such Post-Distribution Ruling or Unqualified Tax Opinion.