Required Actions (a) Subject to the terms and conditions of this Agreement, SJW, Merger Sub and CTWS shall use its respective reasonable best efforts to take, or cause to be taken, all actions, and do, or cause to be done, and assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to carry out the intent and purposes of this Agreement and to consummate and make effective, as soon as reasonably practicable, the Merger and the other transactions contemplated by this Agreement.
(b) Without limiting the generality of Section 6.03(a), SJW and the SJW Board and CTWS and the CTWS Board, as the case may be, shall use their respective reasonable best efforts to (x) take all action reasonably appropriate to ensure that no takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Merger or any other transaction contemplated by this Agreement and (y) if any takeover statute or similar statute or regulation becomes applicable to this Agreement, the Merger or any other transaction contemplated by this Agreement, take all action reasonably appropriate to ensure that the Merger and the other transactions contemplated by this Agreement may be consummated as promptly as reasonably practicable on the terms contemplated by this Agreement.
(c) Without limiting the generality of Section 6.03(a):
(i) As promptly as reasonably practicable following the date of this Agreement, SJW and CTWS each shall file with the United States Federal Trade Commission (the “FTC”) and the Antitrust Division of the United States Department of Justice (the “DOJ”) Notification and Report Forms relating to the transactions contemplated herein required by the HSR Act. Without limitation of Section 6.03(c)(ii) below, SJW and CTWS each shall use reasonable best efforts to obtain early termination of any waiting period under the HSR Act and SJW and CTWS shall each, as promptly as reasonably practicable, (A) supply the other with any information which may be required in order to effectuate such filings and (B) supply any additional information which reasonably may be required by the FTC or the DOJ.
(ii) Each of SJW and CTWS shall use reasonable best efforts to prepare and file, or cause to be prepared and filed, as promptly as reasonably practicable after the date of this Agreement, all filings, submissions and registrations required to be made to the PURA and the MPUC, and all other applications, notices, registrations, filings, reports and other documents required to be filed with any Governmental Entity with respect to the Merger and the other transactions contemplated by this Agreement, including all SJW Regulatory Approvals and all CTWS Regulatory Approvals. Each of CTWS and SJW shall, as promptly as reasonably practicable, (A) supply the other with any information which reasonably may be required in order to effectuate such filings, (B) supply any additional information which reasonably may be required by a Governmental Entity of any jurisdiction and which the parties may reasonably deem appropriate, and (C) subject to applicable Law and the instructions of any Governmental Entity, keep each other apprised of the status of matters relating to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by the SJW or CTWS, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. No party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect to any such filings, investigation or other inquiry without using reasonable best efforts to give (to the extent feasible and appropriate) the other party prior notice of the meeting or conversation and, unless prohibited by such Governmental Entity, a reasonable opportunity to attend or participate. Subject to applicable Law and the instructions of any Governmental Entity, the parties will consult and cooperate with one another and permit the other party or its counsel to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication by such party to any Governmental Entity in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party in connection with proceedings under or relating to the HSR Act, other antitrust Laws or any applicable state Laws in connection with the Merger and the other transactions contemplated by this Agreement.
(iii) Each of SJW and CTWS shall (A) give the other party prompt notice of the commencement or threat of commencement of any legal proceeding by or before any Governmental Entity with respect to the Merger or any of the other transactions contemplated by this Agreement, (B) keep the other party informed as to the status of any such legal proceeding or threat, and (C) cooperate in all material respects with each other and shall use their respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, Judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger or the other transactions contemplated hereby.
(iv) Each of SJW and CTWS shall: (A) reasonably cooperate with the other party, execute and deliver such further documents, certificates, agreements and instruments and take such other actions as may be reasonably requested by the other party to evidence or reflect the transactions contemplated by this Agreement (including the execution and delivery of all documents, certificates, agreements and instruments reasonably necessary for all filings hereunder); (B) give all notices (if any) required to be made and given by such party in connection with the Merger and the other transactions contemplated by this Agreement; (C) use reasonable best efforts to obtain each approval, consent, ratification, permission, waiver of authorization (including any authorization of a Governmental Entity) required to be obtained from Governmental Entities pursuant to any applicable Law by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, including the SJW Regulatory Approvals and the CTWS Regulatory Approvals; and (D) obtain any approval, consent, ratification, permission, waiver or authorization required to be obtained from parties to any SJW Material Contract identified on Section 6.03(c)(iv) of the SJW Disclosure Letter or CTWS Material Contract identified on Section 6.03(c)(iv) of the CTWS Disclosure Letter, including by entering into and negotiating commercially reasonable definitive agreements with respect to such parties to such material Contracts, offering customary fees, discounts and other incentives to such parties on commercially reasonable terms and paying any customary expenses incurred in connection therewith; provided, however, that SJW and CTWS are not required to take any such action unless the effectiveness of the action is contingent upon the consummation of the Merger.
(d) Notwithstanding any other provision of this Agreement, SJW and the SJW Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action would, individually or in the aggregate, have or reasonably be expected to have a Regulatory Material Adverse Effect. In addition, neither SJW nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(d) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this Agreement.
(e) Notwithstanding any other provision of this Agreement, CTWS and the CTWS Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action would, individually or in the aggregate, have or reasonably be expected to have a Regulatory Material Adverse Effect. In addition, neither CTWS nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(e) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this Agreement.
(f) Notwithstanding any other provision of this Agreement, (i) neither SJW nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any SJW Takeover Proposal and (ii) neither CTWS nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any CTWS Takeover Proposal.
Permitted Actions Anything to the contrary in this Section 3 notwithstanding, any Claimholder may:
(i) if an Insolvency Proceeding has been commenced by or against any Grantor, file a claim, proof of claim or statement of interest with respect to (i) in the case of an ABL Claimholder, the ABL Debt, and (ii) in the case of a Term Claimholder, the Term Debt, and in each case, subject in all respects to this Agreement, the Collateral securing such Debt;
(ii) take any action (not adverse to the priority status of the Liens on the Priority Collateral held by the Priority Agent with respect thereto, or the rights of the Priority Agent or any other Priority Claimholder to undertake Enforcement Actions with respect thereto) in order to create or perfect its Lien in and to the Collateral;
(iii) file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any Person objecting to or otherwise seeking the disallowance of the claims of (i) in the case of a claim of an ABL Claimholder in respect of the ABL Debt, the ABL Claimholders, or (ii) in the case of a claim of a Term Claimholder in respect of the Term Debt, the Term Claimholders, in each case including any claims secured by the Collateral, if any, in each case, in accordance with the express provisions of this Agreement;
(iv) vote on any plan of reorganization and make any filings and motions that are, in each case, not in contravention of the express provisions of this Agreement, with respect to (A) in the case of an ABL Claimholder, the ABL Debt, and (B) in the case of a Term Claimholder, the Term Debt, and (in each case) the Collateral;
(v) join (but not exercise any control with respect to) any judicial foreclosure proceeding or other judicial lien enforcement proceeding with respect to the Priority Collateral of - 28 - WEIL:\96331350\2\35899.0561 the Priority Agent initiated by such Priority Agent to the extent that any such action could not reasonably be expected, in any material respect, to restrain, hinder, limit, delay for any material period or otherwise interfere with an Enforcement Action by such Priority Agent (it being understood that neither the Junior Agent nor any Junior Claimholder shall be entitled to receive any proceeds from the Priority Collateral unless otherwise expressly permitted herein);
(vi) the Term Agent or any Term Claimholder may exercise any of its rights or remedies with respect to the ABL Priority Collateral in accordance with the Term Documents after the termination of the ABL Priority Standstill Period to the extent permitted by Section 3.1 above; and
(vii) the ABL Agent or any ABL Claimholder may exercise any of its rights or remedies with respect to the Term Priority Collateral in accordance with the ABL Documents after the termination of the Term Priority Standstill Period to the extent permitted by Section 3.2 above.
Certain Notifications and Required Actions After the date of this Agreement, the Company shall promptly advise the Representative in writing of: (i) the receipt of any comments of, or requests for additional or supplemental information from, the Commission; (ii) the time and date of any filing of any post-effective amendment to the Registration Statement or any amendment or supplement to any preliminary prospectus, the Time of Sale Prospectus, the Prospectus or the Exchange Act Registration Statement; (iii) the time and date that any post-effective amendment to the Registration Statement becomes effective; and (iv) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any amendment or supplement to any preliminary prospectus, the Time of Sale Prospectus, the Prospectus or the Exchange Act Registration Statement or of any order preventing or suspending the use of any preliminary prospectus, the Time of Sale Prospectus, or the Prospectus, or of any proceedings to remove, suspend or terminate from listing or quotation the Units from any securities exchange upon which they are listed for trading or included or designated for quotation, or of the threatening or initiation of any proceedings for any of such purposes. If, at any time, the Commission shall enter any such stop order, the Company will use its best efforts to obtain the lifting of such order at the earliest possible moment. Additionally, the Company agrees that it shall comply in all material respects with all applicable provisions of Rule 424(b), Rule 433 and Rule 430A under the Securities Act and will use its reasonable efforts to confirm that any filings made by the Company under Rule 424(b) or Rule 433 were received in a timely manner by the Commission.
Financial Covenant Required Actual Complies Maintain as indicated:
Restricted Actions Prior to the conversion of, or redemption of, the Series D Shares (other than with respect to Section 8.1(e) which shall survive the conversion of the Series D Shares and shall terminate on the date that no Securities are outstanding), without the prior written consent of the holders of a majority of the Series D Shares (other than with respect to Section 8.1(e) which shall require the prior written consent of the holders of a majority of the Underlying Common Stock), the Company shall not, nor shall the Company suffer or permit any member of the Company Group to, directly or indirectly:
(a) use the proceeds from the sale of the Series D Shares and the Warrants hereunder other than (i) to pay the Closing Fee, the CRP Fee and other fees and expenses associated with the transactions contemplated by this Agreement and the Related Documents, (ii) for Permitted Acquisitions and (iii) for working capital and general corporate purposes;
(b) prior to the third anniversary of the Initial Closing Date, consummate a Company Sale unless the amount of cash consideration and the Market Price (as of the date of receipt) of any other consideration received by the holders of the Underlying Common Stock, in the aggregate, in such Company Sale, plus the aggregate value of any cash hereafter distributed or issued as a dividend or distribution with respect to any of the Securities is equal to 175% of the aggregate amount of capital invested in the Securities;
(c) incur, create, assume or in any way become liable for any Indebtedness for Borrowed Money, Capital Leases or Guarantees unless at the time of and after giving pro forma effect to such incurrence and the application of proceeds therefrom, the ratio of the Company’s Indebtedness for Borrowed Money to EBITDA would be less than or equal to 2.0 to 1.0. Solely for purposes of this Section 8.1(c), (x) Indebtedness for Borrowed Money shall mean all obligations of the Company Group for borrowed money which should be classified upon the obligor’s balance sheet as liabilities, the present value of any Capital Leases and the amount of all Guarantees (whether or not required to be reflected on such obligor’s balance sheet as liabilities), in each case as determined in accordance with GAAP, and (y) EBITDA shall mean the net income of the Company Group (including in the “Company Group” for all purposes of this Section 8.1(c)(y), MAI Systems Corporation and its direct and indirect subsidiaries, for the entire period being measured, regardless of whether such period includes time periods preceding the acquisition of MAI Systems Corporation by the Company), (A) adjusted for the elimination of the following items if, and only if, such items shall never require the expenditure of cash by any member of the Company Group: (1) non-cash interest; (2) non-cash employee compensation expense and (3) nonrecurring non-cash charges, (B) minus any extraordinary gains and other non-recurring gains and (C) plus to the extent deducted from net income (1) income tax expense; (2) depreciation and amortization expense and (3) the aggregate cash interest expense of the Company Group paid, payable or accrued for such period, all of which calculations shall be determined in accordance with GAAP based on the consolidated financial statements of the Company Group for the 12 month period ending on the last day of the fiscal quarter for which the most recent financial statements have been delivered to the Purchasers pursuant to Section 8.3; provided, that notwithstanding the foregoing provisions of this Section 8.1(c), (x) the Company may incur Indebtedness under Capital Leases in an amount not to exceed $1,000,000 in the aggregate outstanding at any time, and (y) the Company may incur Indebtedness under that certain Credit Agreement, dated as of the date of this Agreement, by and between the Company, certain Subsidiaries of the Company, the lenders named therein, and Xxxxx Fargo Foothill, Inc., as Arranger and Administrative Agent in effect on the date hereof (the “Senior Facility”) even though the Ratio will exceed 2.0 to 1.0, if such Indebtedness is incurred to finance Permitted Acquisitions or for working capital and general corporate purposes on or after the date of this Amendment and either
(i) following such incurrence, the aggregate amount of Indebtedness outstanding under the Senior Facility does not exceed $23,000,000; or
(ii) such Indebtedness under the Senior Facility (A) is incurred at any time during the period beginning on March 31, 2007 and ending on Xxxxxxxx 00, 0000, (x) does not exceed $30,000,000 and (c) is incurred when the Company’s EBITDA for the twelve month period ended on the most recently ended fiscal quarter equals or exceeds the Minimum EBITDA Targets set forth opposite the date below that corresponds to the most recently ended fiscal quarter prior to the date of the borrowing: March 31, 2007 $ 9,000,000 June 30, 2007 $ 9,000,000 September 30, 2007 $ 10,701,744 December 31, 2007 $ 11,862,744 (d) from and after the third anniversary of the Initial Closing Date, consummate a Company Sale unless the amount of cash consideration and the Market Price (as of the date of receipt) of any other consideration received by the holders of the Series D Preferred Stock, in the aggregate, in such Company Sale is at least equal to the Series D Redemption Price for all such shares of Series D Preferred Stock;
Prohibited Actions The Company agrees that it will not take any action which would entitle the Warrantholder to an adjustment of the Exercise Price if the total number of shares of Common Stock issuable after such action upon exercise of this Warrant, together with all shares of Common Stock then outstanding and all shares of Common Stock then issuable upon the exercise of all outstanding options, warrants, conversion and other rights, would exceed the total number of shares of Common Stock then authorized by its Charter.
How are Required Minimum Distributions Computed A required minimum distribution (“RMD”) is determined by dividing the account balance (as of the prior calendar year end) by the distribution period. For lifetime RMDs, there is a uniform distribution period for almost all IRA owners of the same age. The uniform distribution period table is based on the joint life and last survivor expectancy of an individual and a hypothetical beneficiary 10 years younger. However, if the IRA owner’s sole beneficiary is his/her spouse and the spouse is more than 10 years younger than the account owner, then a longer distribution period based upon the joint life and last survivor life expectancy of the IRA owner and spouse will apply. An IRA owner may, however, elect to take more than his/her RMD at any time.
Permitted Acts Nothing in this Agreement shall be construed to limit the ability of the Placement Agent, its officers, directors, employees, agents, associated persons and any individual or entity “controlling,” controlled by,” or “under common control” with the Placement Agent (as those terms are defined in Rule 405 under the Securities Act) to conduct its business including without limitation the ability to pursue, investigate, analyze, invest in, or engage in investment banking, financial advisory or any other business relationship with any individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
Existing Term Lenders / Cashless Settlement Each undersigned Term Lender hereby irrevocably and unconditionally (i) consents to convert 100% of the outstanding principal amount of the Term Loans held by such Term Lender (or such lesser amount allocated to such Lender by the Administrative Agent) into a Term B-1 Loan in a like principal amount via a cashless roll and (ii) consents to the terms of the Amendment and the Amended Credit Agreement.
No Action Except Under Specified Documents The Interim Eligible Lender Trustee shall not otherwise deal with the Interim Trust Loans except in accordance with the powers granted to and the authority conferred upon the Interim Eligible Lender Trustee pursuant to this Agreement, the Purchase Agreements and the Sale Agreement.
