Company Interim Operations. Except as set forth in the Company -------------------------- Disclosure Schedule or as otherwise expressly contemplated hereby, without the prior consent of Acquiror (which consent shall not be unreasonably withheld or delayed), from the date hereof until the Effective Time, the Company shall, and shall cause each of its Material Subsidiaries to, conduct their business in all material respects in the ordinary course consistent with past practice (with such changes as the Company determines in good faith are necessary or advisable with respect to (w) changes in U.S. or global economic, industry or political conditions, (x) changes in U.S. or global financial markets or conditions, (y) any generally applicable change in Law or interpretation of any thereof and/or (z) the announcement of this Agreement or the transactions contemplated hereby or the Company's performance of its obligations under this Agreement and compliance with the covenants set forth herein), and shall use commercially reasonable efforts to (i) preserve intact its present business organization, (ii) maintain in effect all material Permits that are required for the Company or such Material Subsidiary to carry on its business, (iii) keep available the services of its present key officers and employees, and (iv) preserve existing relationships with its material customers, lenders, suppliers and others having material business relationships with it. Without limiting the generality of the foregoing, except as set forth in the Company Disclosure Schedule or as otherwise expressly contemplated by this Agreement, from the date hereof until the Effective Time, without the prior consent of Acquiror, the Company shall not, nor shall it permit any of its Subsidiaries, directly or indirectly, to: (a) amend the Company's or any Subsidiary's certificate of incorporation or by-laws (or equivalent organizational documents); (i) split, combine or reclassify any shares of capital stock of the Company or amend the terms of any rights, warrants or options to acquire its securities, (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 Equity Interests, or (iii) redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any of its securities or any rights, warrants or options to acquire its securities, except for ordinary course dividends by Company Subsidiaries or, with respect to clause (iii) only, pursuant to the existing terms of any Company Employee Plan or Foreign Plan or any agreement executed pursuant thereto; (c) issue, deliver, sell, or authorize the issuance, delivery or sale of, its Equity Interests or any securities convertible into or exercisable for, or any rights, warrants or options to acquire, its Equity Interests, other than, (i) in connection with directors' qualifying shares, (ii) the issuance of Company Shares upon the exercise of stock options granted prior to the date hereof or in accordance with their present terms, and (iii) the issuance of Company Shares in exchange for CBRE Stock Fund Units allocated under the Deferred Compensation Plan prior to the date hereof, in accordance with the terms of the Deferred Compensation Plan; (d) acquire (whether pursuant to merger, stock or asset purchase or otherwise) in one transaction or series of related transactions any Person, any Equity Interests of any Person, any division or business of any Person or all or substantially all of the assets of any Person for consideration having a fair market value in excess of $5.0 million in any single or series of related transactions or $15.0 million in the aggregate; (e) sell, lease, encumber or otherwise dispose of any assets which are material to the Company and its Subsidiaries, taken as a whole, other than (i) sales in the ordinary course of business consistent with past practice, (ii) equipment and property no longer used in the operation of the Company's business, (iii) assets related to discontinued operations, and (iv) contributions or other transfers of assets to any Joint Venture permitted by Section 6.1(d) hereof;
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Blum Capital Partners Lp), Agreement and Plan of Merger (Fs Equity Partners Iii Lp), Agreement and Plan of Merger (Cbre Holding Inc)
Company Interim Operations. Except as set forth in the Company -------------------------- Disclosure Schedule or as otherwise expressly contemplated hereby, without the prior consent of Acquiror (which consent shall not be unreasonably withheld or delayed), from the date hereof until the Effective Time, the Company shall, and shall cause each of its Material Subsidiaries to, conduct their business in all material respects in the ordinary course consistent with past practice (with such changes as the Company determines in good faith are necessary or advisable with respect to (w) changes in U.S. or global economic, industry or political conditions, (x) changes in U.S. or global financial markets or conditions, (y) any generally applicable change in Law or interpretation of any thereof and/or (z) the announcement of this Agreement or the transactions contemplated hereby or the Company's performance of its obligations under this Agreement and compliance with the covenants set forth herein), and shall use commercially reasonable efforts to (i) preserve intact its present business organization, (ii) maintain in effect all material Permits that are required for the Company or such Material Subsidiary to carry on its business, (iii) keep available the services of its present key officers and employees, and (iv) preserve existing relationships with its material customers, lenders, suppliers and others having material business relationships with it. Without limiting the generality of the foregoing, except as set forth in the Company Disclosure Schedule or as otherwise expressly contemplated by this Agreement, from the date hereof until the Effective Time, without the prior consent of Acquiror, the Company shall not, nor shall it permit any of its Subsidiaries, directly or indirectly, to:
(a) amend the Company's or any Subsidiary's certificate of incorporation or by-laws (or equivalent organizational documents);
(i) split, combine or reclassify any shares of capital stock of the Company or amend the terms of any rights, warrants or options to acquire its securities, (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 Equity Interests, or (iii) redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any of its securities or any rights, warrants or options to acquire its securities, except for ordinary course dividends by Company Subsidiaries or, with respect to clause (iii) only, pursuant to the existing terms of any Company Employee Plan or Foreign Plan or any agreement executed pursuant thereto;
(c) issue, deliver, sell, or authorize the issuance, delivery or sale of, its Equity Interests or any securities convertible into or exercisable for, or any rights, warrants or options to acquire, its Equity Interests, other than, (i) in connection with directors' qualifying shares, (ii) the issuance of Company Shares upon the exercise of stock options granted prior to the date hereof or in accordance with their present terms, and (iii) the issuance of Company Shares in exchange for CBRE CBC Stock Fund Units allocated under the Deferred Compensation Plan prior to the date hereof, in accordance with the terms of the Deferred Compensation Plan;
(d) acquire (whether pursuant to merger, stock or asset purchase or otherwise) in one transaction or series of related transactions any Person, any Equity Interests of any Person, any division or business of any Person or all or substantially ssubstantially all of the assets of any Person for consideration having a fair market value in excess of $5.0 million in any single or series of related transactions or $15.0 million in the aggregate;
(e) sell, lease, encumber or otherwise dispose of any assets which are material to the Company and its Subsidiaries, taken as a whole, other than (i) sales in the ordinary course of business consistent with past practice, (ii) equipment and property no longer used in the operation of the Company's business, (iii) assets related to discontinued operations, and (iv) contributions or other transfers of assets to any Joint Venture permitted by Section 6.1(d) hereof; provided, however, that the consent of Acquiror to do any of the foregoing shall not be unreasonably withheld;
(f) (i) (A) incur any indebtedness for borrowed money, except to fund working capital in the ordinary course consistent with past practice under the Company's existing credit facilities, (B) issue or sell any debt securities (except intercompany debt securities) or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, (C) make any loans, advances (other than to employees of and consultants to the Company in the ordinary ccourse of business) or capital contributions to, or, except as permitted by 6.1(d), investments in, any other Person, other than to the Company or any Subsidiary of the Company or (D) assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any Person (other than obligations of Subsidiaries and the endorsements of negotiable instruments for collection in the ordinary course of business consistent with past practice), or (ii) enter into or materially amend any contract, agreement, commitment or arrangements to effect any of the transactions prohibited by this Section 6.1(f);
(g) except in the ordinary course of business consistent with past practice, (i) materially amend, modify or terminate any material contract, agreement or arrangement of the Company or any of its Material Subsidiaries or (ii) otherwise waive, release or assign any material rights, claims or benefits of the Company or any of its Material Subsidiaries thereunder; provided, however, that the consent of Acquiror to do any of the forgoing shall not be unreasonably withheld;
(i) except as required by Law or any existing agreement, increase the amount of compensation of any director or executive officer of the Company, (ii) except as required by Law, an agreement existing on the date hereof or pursuant to a Company severance policy existing on the date hereof, grant any severance or termination pay to any director or senior officer of the Company or any Material Subsidiary, (iii) adopt any additional material employee benefit plan or (iv) except as may be required by Law or as necessary to comply with the terms of this Agreement, amend in any material respect any Company Employee Plan or Foreign Plan; provided, however, that the consent of Acquiror to do any of the forgoing shall not be unreasonably withheld;
(i) materially change the Company's methods of accounting in effect at September 30, 2000, except as required by changes in GAAP or by Regulation S-X of the Exchange Act, as concurred in by its independent public accountants; provided, however, that the consent of Acquiror to do any of the forgoing shall not be unreasonably withheld;
(i) settle, pay or discharge, any litigation, investigation, arbitration, proceeding or other claim that is material to the business, financial condition or results of operations of the Company and its Subsidiaries, taken as a whole or (ii) settle, pay or discharge any Claim against the Company with respect to or arising out of the transactions contemplated by this Agreement;
(k) other than in the ordinary course of business consistent with past practice, (i) make any material Tax election or take any position on any Company Return filed on or after the date of this Agreement or adopt any method therein that is materially inconsistent with elections made, positions taken or methods used in preparing or filing similar returns in prior periods, (ii) enter into any settlement or compromise of any material Tax liability that in either case is material to the business of the Company and its Subsidiaries, taken as a whole, (iii) file any amended Company Return with respect to any material Tax, (iv) change any annual Tax accounting period, (v) enter into any closing agreement relating to any material Tax or (vi) surrender any right to claim a material Tax refund;
(l) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger); and
(m) agree or commit to do any of the foregoing; provided that the limitations set forth in Sections 6.1(b) through 6.1(g) and Section 6.1(l) shall not apply to any action, transaction or event occurring exclusively between the Company and any Company Subsidiary or exclusively between any Company Subsidiaries.
Appears in 3 contracts
Samples: Merger Agreement (Wirta Raymond E), Merger Agreement (Koll Donald M), Merger Agreement (White W Brett)
Company Interim Operations. Except The Company covenants and agrees -------------------------- as set forth in to itself and its Subsidiaries that, after the date hereof and prior to the date on which Purchaser Representatives are elected to the Board of Directors of the Company -------------------------- Disclosure Schedule in accordance with Section 1.3(a) hereof and represent at least a majority of such directors (unless Parent or the Company, as the case may be, shall otherwise expressly contemplated herebyapprove in writing, without the prior consent of Acquiror (which consent approval shall not be unreasonably withheld or delayed), from the date hereof until the Effective Time, the Company shall, and shall cause each of its Material Subsidiaries to, conduct their business in all material respects in the ordinary course consistent with past practice (with such changes as the Company determines in good faith are necessary or advisable with respect to (w) changes in U.S. or global economic, industry or political conditions, (x) changes in U.S. or global financial markets or conditions, (y) any generally applicable change in Law or interpretation of any thereof and/or (z) the announcement of this Agreement or the transactions contemplated hereby or the Company's performance of its obligations under this Agreement and compliance with the covenants set forth herein), and shall use commercially reasonable efforts to (i) preserve intact its present business organization, (ii) maintain in effect all material Permits that are required for the Company or such Material Subsidiary to carry on its business, (iii) keep available the services of its present key officers and employees, and (iv) preserve existing relationships with its material customers, lenders, suppliers and others having material business relationships with it. Without limiting the generality of the foregoing, except as set forth in the Company Disclosure Schedule or as otherwise expressly contemplated by this Agreement, from the date hereof until the Effective Time, without the prior consent Agreement and except as set forth in Section 6.1 of Acquiror, the Company Disclosure Letter):
(a) the business of it and its Subsidiaries shall notbe conducted in the ordinary and usual course consistent with past practice and it and its Subsidiaries shall use all reasonable best efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, nor suppliers, distributors, creditors, lessors, employees and business associates;
(b) it shall it permit not (i) issue, sell, pledge, dispose of or encumber any capital stock in any of its Subsidiaries, directly or indirectly, to:
; (aii) amend the Company's articles or any Subsidiary's certificate of incorporation or by-laws regulations or bylaws of the Company or any of its Subsidiaries; (or equivalent organizational documents);
(iiii) split, combine or reclassify any the outstanding shares of capital stock of the Company or amend the terms any of any rights, warrants or options to acquire its securities, Subsidiaries; (iiiv) declare, set aside or pay any dividend or other distribution (whether payable in cash, stock or property or any combination thereof) in respect of any capital stock other than dividends from its Equity Interests, direct or indirect wholly-owned Subsidiaries; or (iiiv) redeem, repurchase or otherwise acquire or offer to redeemamend the terms of, repurchase, redeem or otherwise acquire acquire, or permit any of its securities Subsidiaries to purchase or any rights, warrants or options to acquire its securitiesotherwise acquire, except for ordinary course dividends by Company Subsidiaries or, in connection with respect to clause (iii) only, the Stock Plans or pursuant to the existing terms Share Repurchase Agreement, any shares of any Company Employee Plan or Foreign Plan or any agreement executed pursuant thereto;
(c) issue, deliver, sell, or authorize the issuance, delivery or sale of, its Equity Interests capital stock or any securities convertible into or exchangeable or exercisable for any shares of its capital stock;
(c) neither it nor any of its Subsidiaries shall (i) issue, sell, pledge, dispose of or encumber any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any rights, warrants or options kind to acquire, any shares of its Equity Interests, capital stock of any class or any Voting Debt or any other than, property or assets (i) in connection with directors' qualifying shares, other than Shares issuable pursuant to options outstanding on the date hereof under the Stock Plans or upon conversion of the Debentures or exercise of the Warrants); (ii) other than in the issuance ordinary and usual course of Company Shares upon the exercise business consistent with past practice, transfer, lease, license, guarantee, sell, mortgage, pledge, dispose of or encumber any other property or assets (including capital stock options granted prior to the date hereof or in accordance with their present terms, and (iii) the issuance of Company Shares in exchange for CBRE Stock Fund Units allocated under the Deferred Compensation Plan prior to the date hereof, in accordance with the terms of the Deferred Compensation Plan;
(d) acquire (whether pursuant to merger, stock or asset purchase or otherwise) in one transaction or series of related transactions any Person, any Equity Interests of any Person, of its Subsidiaries) or incur or modify any division indebtedness or business of any Person or all or substantially all of the assets of any Person for consideration having a fair market value other liability in excess of $5.0 million in 1,000,000; (iii) make any single loans or series of related transactions or $15.0 million in the aggregate;
(e) selladvances to any person, lease, encumber or otherwise dispose of any assets which are material except to the Company and its Subsidiaries, taken as a whole, other than (i) sales employees in the ordinary course of business consistent with past practice; or (iv) make or authorize or commit for any capital expenditures other than in the ordinary and usual course of business consistent with past practice or in amounts less than $200,000 individually and $1,000,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets or stock of any other Person or entity;
(d) neither it nor any of its Subsidiaries shall terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plans or increase the salary, wage, bonus or other compensation of any employees except increases occurring in the ordinary and usual course of business consistent with past practice (which shall include normal periodic performance reviews and related compensation and benefit increases) or enter into any new employment or severance agreement with any director, officer or other employee of the Company or of any of its Subsidiaries except (i) with respect to the individuals listed in Section 6.1(d) of the Company Disclosure Letter or (ii) equipment and property no longer used with respect to the renewal of any existing agreement by operation of its terms in the operation ordinary and usual course of business consistent with past practice;
(e) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation, except for settlements or compromises made in the ordinary course of business consistent with past practice involving payments by the Company or any of its Subsidiaries not in excess of $200,000 individually or $1,000,000 in the aggregate, or, except in the ordinary and usual course of business consistent with past practice, modify, amend or terminate any of its material Contracts or waive, release or assign any material rights or claims;
(f) neither it nor any of its Subsidiaries shall make any Tax election or agree to an extension of a statute of limitations for any assessments of federal income tax or material state corporate income or franchise tax or permit any insurance policy naming it as a beneficiary or loss- payable payee to be canceled or terminated except in the ordinary and usual course of business;
(g) neither it nor its Subsidiaries shall take any action, other than as required by GAAP, to change accounting policies or procedures or cash maintenance policies or procedures;
(h) neither it nor its Subsidiaries shall take any action that would be reasonably likely to impede or delay the Transactions or adversely affect the parties' ability to consummate the Transactions;
(i) neither it nor its Subsidiaries shall take any action that would be reasonably likely to diminish the value to the Company of the Company's businessnet operating losses set forth in the September 30, 1997 financial statements included in the Company Reports, except for the consummation of the Transactions; and
(iiij) assets related neither it nor any of its Subsidiaries shall authorize or enter into an agreement to discontinued operations, and (iv) contributions or other transfers do any of assets to any Joint Venture permitted by Section 6.1(d) hereof;the foregoing.
Appears in 3 contracts
Samples: Merger Agreement (International Technology Corp), Merger Agreement (Ohm Corp), Merger Agreement (Ohm Corp)
Company Interim Operations. Except as set forth in the Company -------------------------- Disclosure Schedule or as otherwise expressly contemplated hereby, without the prior consent of Acquiror (which consent shall not be unreasonably withheld or delayed), from the date hereof until the Effective Time, the Company shall, and shall cause each of its Material Subsidiaries to, conduct their business in all material respects in the ordinary course consistent with past practice (with such changes as the Company determines in good faith are necessary or advisable with respect to (w) changes in U.S. or global economic, industry or political conditions, (x) changes in U.S. or global financial markets or conditions, (y) any generally applicable change in Law or interpretation of any thereof and/or (z) the announcement of this Agreement or the transactions contemplated hereby or the Company's performance of its obligations under this Agreement and compliance with the covenants set forth herein), and shall use commercially reasonable efforts to (i) preserve intact its present business organization, (ii) maintain in effect all material Permits that are required for the Company or such Material Subsidiary to carry on its business, (iii) keep available the services of its present key officers and employees, and (iv) preserve existing relationships with its material customers, lenders, suppliers and others having material business relationships with it. Without limiting the generality of the foregoing, except as set forth in the Company Disclosure Schedule or as otherwise expressly contemplated by this Agreement, from the date hereof until the Effective Time, without the prior consent of Acquiror, the Company shall not, nor shall it permit any of its Subsidiaries, directly or indirectly, to:
(a) amend the Company's or any Subsidiary's certificate of incorporation or by-laws (or equivalent organizational documents);
(i) split, combine or reclassify any shares of capital stock of the Company or amend the terms of any rights, warrants or options to acquire its securities, (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 Equity Interests, or (iii) redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any of its securities or any rights, warrants or options to acquire its securities, except for ordinary course dividends by Company Subsidiaries or, with respect to clause (iii) only, pursuant to the existing terms of any Company Employee Plan or Foreign Plan or any agreement executed pursuant thereto;
(c) issue, deliver, sell, or authorize the issuance, delivery or sale of, its Equity Interests or any securities convertible into or exercisable for, or any rights, warrants or options to acquire, its Equity Interests, other than, (i) in connection with directors' qualifying shares, (ii) the issuance of Company Shares upon the exercise of stock options granted prior to the date hereof or in accordance with their present terms, and (iii) the issuance of Company Shares in exchange for CBRE Stock Fund Units allocated under the Deferred Compensation Plan prior to the date hereof, in accordance with the terms of the Deferred Compensation Plan;
(d) acquire (whether pursuant to merger, stock or asset purchase or otherwise) in one transaction or series of related transactions any Person, any Equity Interests of any Person, any division or business of any Person or all or substantially all of the assets of any Person for consideration having a fair market value in excess of $5.0 million in any single or series of related transactions or $15.0 million in the aggregate;
(e) sell, lease, encumber or otherwise dispose of any assets which are material to the Company and its Subsidiaries, taken as a whole, other than (i) sales in the ordinary course of business consistent with past practice, (ii) equipment and property no longer used in the operation of the Company's business, (iii) assets related to discontinued operations, and (iv) contributions or other transfers of assets to any Joint Venture permitted by Section 6.1(d) hereof; provided, however, that the consent of Acquiror to do any of the foregoing shall not be unreasonably withheld;
(f) (i) (A) incur any indebtedness for borrowed money, except to fund working capital in the ordinary course consistent with past practice under the Company's existing credit facilities, (B) issue or sell any debt securities (except intercompany debt securities) or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, (C) make any loans, advances (other than to employees of and consultants to the Company in the ordinary course of business) or capital contributions to, or, except as permitted by 6.1(d), investments in, any other Person, other than to the Company or any Subsidiary of the Company or (D) assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any Person (other than obligations of Subsidiaries and the endorsements of negotiable instruments for collection in the ordinary course of business consistent with past practice), or (ii) enter into or materially amend any contract, agreement, commitment or arrangements to effect any of the transactions prohibited by this Section 6.1(f);
(g) except in the ordinary course of business consistent with past practice, (i) materially amend, modify or terminate any material contract, agreement or arrangement of the Company or any of its Material Subsidiaries or (ii) otherwise waive, release or assign any material rights, claims or benefits of the Company or any of its Material Subsidiaries thereunder; provided, however, that the consent of Acquiror to do any of the forgoing shall not be unreasonably withheld;
(i) except as required by Law or any existing agreement, increase the amount of compensation of any director or executive officer of the Company, (ii) except as required by Law, an agreement existing on the date hereof or pursuant to a Company severance policy existing on the date hereof, grant any severance or termination pay to any director or senior officer of the Company or any Material Subsidiary, (iii) adopt any additional material employee benefit plan or (iv) except as may be required by Law or as necessary to comply with the terms of this Agreement, amend in any material respect any Company Employee Plan or Foreign Plan; provided, however, that the consent of Acquiror to do any of the forgoing shall not be unreasonably withheld;
(i) materially change the Company's methods of accounting in effect at September 30, 2000, except as required by changes in GAAP or by Regulation S-X of the Exchange Act, as concurred in by its independent public accountants; provided, however, that the consent of Acquiror to do any of the forgoing shall not be unreasonably withheld;
(i) settle, pay or discharge, any litigation, investigation, arbitration, proceeding or other claim that is material to the business, financial condition or results of operations of the Company and its Subsidiaries, taken as a whole or (ii) settle, pay or discharge any Claim against the Company with respect to or arising out of the transactions contemplated by this Agreement;
(k) other than in the ordinary course of business consistent with past practice, (i) make any material Tax election or take any position on any Company Return filed on or after the date of this Agreement or adopt any method therein that is materially inconsistent with elections made, positions taken or methods used in preparing or filing similar returns in prior periods, (ii) enter into any settlement or compromise of any material Tax liability that in either case is material to the business of the Company and its Subsidiaries, taken as a whole, (iii) file any amended Company Return with respect to any material Tax, (iv) change any annual Tax accounting period, (v) enter into any closing agreement relating to any material Tax or (vi) surrender any right to claim a material Tax refund;
(l) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger); and
(m) agree or commit to do any of the foregoing; provided that the limitations set forth in Sections 6.1(b) through 6.1(g) and Section 6.1(l) shall not apply to any action, transaction or event occurring exclusively between the Company and any Company Subsidiary or exclusively between any Company Subsidiaries.
Appears in 3 contracts
Samples: Merger Agreement (Koll Donald M), Agreement and Plan of Merger (Koll Donald M), Agreement and Plan of Merger (Wirta Raymond E)
Company Interim Operations. Except as set forth in the Company -------------------------- Disclosure Schedule or as otherwise expressly contemplated hereby, without the prior consent of Acquiror (which consent shall not be unreasonably withheld or delayed), from the date hereof until the Effective Time, the Company shall, and shall cause each of its Material Subsidiaries to, conduct their business in all material respects in the ordinary course consistent with past practice (with such changes as the Company determines in good faith are necessary or advisable with respect to (w) changes in U.S. or global economic, industry or political conditions, (x) changes in U.S. or global financial markets or conditions, (y) any generally applicable change in Law or interpretation of any thereof and/or (z) the announcement of this Agreement or the transactions contemplated hereby or the Company's performance of its obligations under this Agreement and compliance with the covenants set forth herein), and shall use commercially reasonable efforts to (i) preserve intact its present business organization, (ii) maintain in effect all material Permits that are required for the Company or such Material Subsidiary to carry on its business, (iii) keep available the services of its present key officers and employees, and (iv) preserve existing relationships with its material customers, lenders, suppliers and others having material business relationships with it. Without limiting the generality of the foregoing, except as set forth in the Company Disclosure Schedule or as otherwise expressly contemplated by this Agreement, from the date hereof until the Effective Time, without the prior consent of Acquiror, the Company shall not, nor shall it permit any of its Subsidiaries, directly or indirectly, to:
(a) amend the Company's or any Subsidiary's certificate of incorporation or by-laws (or equivalent organizational documents);
(i) split, combine or reclassify any shares of capital stock of the Company or amend the terms of any rights, warrants or options to acquire its securities, (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 Equity Interests, or (iii) redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any of its securities or any rights, warrants or options to acquire its securities, except for ordinary course dividends by Company Subsidiaries or, with respect to clause (iii) only, pursuant to the existing terms of any Company Employee Plan or Foreign Plan or any agreement executed pursuant thereto;
(c) issue, deliver, sell, or authorize the issuance, delivery or sale of, its Equity Interests or any securities convertible into or exercisable for, or any rights, warrants or options to acquire, its Equity Interests, other than, (i) in connection with directors' qualifying shares, (ii) the issuance of Company Shares upon the exercise of stock options granted prior to the date hereof or in accordance with their present terms, and (iii) the issuance of Company Shares in exchange for CBRE Stock Fund Units allocated under the Deferred Compensation Plan prior to the date hereof, in accordance with the terms of the Deferred Compensation Plan;
(d) acquire (whether pursuant to merger, stock or asset purchase or otherwise) in one transaction or series of related transactions any Person, any Equity Interests of any Person, any division or business of any Person or all or substantially all of the assets of any Person for consideration having a fair market value in excess of $5.0 million in any single or series of related transactions or $15.0 million in the aggregate;
(e) sell, lease, encumber or otherwise dispose of any assets which are material to the Company and its Subsidiaries, taken as a whole, other than (i) sales in the ordinary course of business consistent with past practice, (ii) equipment and property no longer used in the operation of the Company's business, (iii) assets related to discontinued operations, and (iv) contributions or other transfers of assets to any Joint Venture permitted by Section 6.1(d) hereof; provided, however, that the consent of Acquiror to do any of the foregoing shall not be unreasonably withheld;
(f) (i) (A) incur any indebtedness for borrowed money, except to fund working capital in the ordinary course consistent with past practice under the Company's existing credit facilities, (B) issue or sell any debt securities (except intercompany debt securities) or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, (C) make any loans, advances (other than to employees of and consultants to the Company in the ordinary course of business) or capital contributions to, or, except as permitted by 6.1(d), investments in, any other Person, other than to the Company or any Subsidiary of the Company or (D) assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any Person (other than obligations of Subsidiaries and the endorsements of negotiable instruments for collection in the ordinary course of business consistent with past practice), or (ii) enter into or materially amend any contract, agreement, commitment or arrangements to effect any of the transactions prohibited by this Section 6.1(f);
(g) except in the ordinary course of business consistent with past practice, (i) materially amend, modify or terminate any material contract, agreement or arrangement of the Company or any of its Material Subsidiaries or (ii) otherwise waive, release or assign any material rights, claims or benefits of the Company or any of its Material Subsidiaries thereunder; provided, however, that the consent of Acquiror to do any of the forgoing shall not be unreasonably withheld;
(i) except as required by Law or any existing agreement, increase the amount of compensation of any director or executive officer of the Company, (ii) except as required by Law, an agreement existing on the date hereof or pursuant to a Company severance policy existing on the date hereof, grant any severance or termination pay to any director or senior officer of the Company or any Material Subsidiary, (iii) adopt any additional material employee benefit plan or (iv) except as may be required by Law or as necessary to comply with the terms of this Agreement, amend in any material respect any Company Employee Plan or Foreign Plan; provided, however, that the consent of Acquiror to do any of the forgoing shall not be unreasonably withheld;
(i) materially change the Company's methods of accounting in effect at September 30, 2000, except as required by changes in GAAP or by Regulation S-X of the Exchange Act, as concurred in by its independent public accountants; provided, however, that the consent of Acquiror to do any of the forgoing shall not be unreasonably withheld;
(i) settle, pay or discharge, any litigation, investigation, arbitration, proceeding or other claim that is material to the business, financial condition or results of operations of the Company and its Subsidiaries, taken as a whole or (ii) settle, pay or discharge any Claim against the Company with respect to or arising out of the transactions contemplated by this Agreement;
(k) other than in the ordinary course of business consistent with past practice, (i) make any material Tax election or take any position on any Company Return filed on or after the date of this Agreement or adopt any method therein that is materially inconsistent with elections made, positions taken or methods used in preparing or filing similar returns in prior periods, (ii) enter into any settlement or compromise of any material Tax liability that in either case is material to the business of the Company and its Subsidiaries, taken as a whole, (iii) file any amended Company Return with respect to any material Tax, (iv) change any annual Tax accounting period, (v) enter into any closing agreement relating to any material Tax or (vi) surrender any right to claim a material Tax refund;
(l) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger); and
(m) agree or commit to do any of the foregoing; provided that the limitations set forth in Sections 6.1(b) through 6.1(g) and Section 6.1(l) shall not apply to any action, transaction or event occurring exclusively between the Company and any Company Subsidiary or exclusively between any Company Subsidiaries.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Cbre Holding Inc), Agreement and Plan of Merger (Fs Equity Partners Iii Lp), Agreement and Plan of Merger (Blum Capital Partners Lp)
Company Interim Operations. Except as set forth Unless otherwise directed, requested or approved in the Company -------------------------- Disclosure Schedule or as otherwise expressly contemplated hereby, without the prior consent of Acquiror (which consent shall not be unreasonably withheld or delayed), from the date hereof until the Effective Time, the Company shall, writing by Parent and shall cause each of its Material Subsidiaries to, conduct their business in all material respects in the ordinary course consistent with past practice (with such changes as the Company determines in good faith are necessary or advisable with respect to (w) changes in U.S. or global economic, industry or political conditions, (x) changes in U.S. or global financial markets or conditions, (y) any generally applicable change in Law or interpretation of any thereof and/or (z) the announcement of this Agreement or the transactions contemplated hereby or the Company's performance of its obligations under this Agreement and compliance with the covenants set forth herein), and shall use commercially reasonable efforts to (i) preserve intact its present business organization, (ii) maintain in effect all material Permits that are required for the Company or such Material Subsidiary to carry on its business, (iii) keep available the services of its present key officers and employees, and (iv) preserve existing relationships with its material customers, lenders, suppliers and others having material business relationships with it. Without limiting the generality of the foregoing, except as set forth in the Company Disclosure Schedule or as otherwise expressly contemplated by this AgreementAgreement or as disclosed in Section 4.1 of the Company Disclosure Letter, from the Company covenants and agrees that, after the date hereof until and prior to the Effective Time, without the prior consent of Acquiror, the Company shall not, nor shall it permit any of its Subsidiaries, directly or indirectly, to:
(a) amend it shall use its commercially reasonable efforts to conduct its business in the ordinary and usual course; PROVIDED, HOWEVER, it shall pay or settle (i) on or before the Effective Time all of its "outstanding obligations" as of the date hereof, and (ii) all of its "outstanding obligations" incurred from the date hereof through the Effective Time as they come due in accordance with their terms. For purposes of this Section 4.1(a), "outstanding obligations" shall exclude (1) any indirect expenses and upcharges to Parent under the intercompany agreements for calendar year 2001, (2) any salary payments accrued for calendar year 2001 to the President of the Company, (3) any transaction costs related to the Merger, (4) any moving costs related to the relocation of the Company's or any Subsidiary's certificate operations to New Jersey, and (5) in the event that the Company has not received a net amount of incorporation or by-laws (or equivalent organizational documents)$400,000 as reimbursement in connection with the cancellation of the New York City lease prior to the Effective Time, outstanding obligations as of the Effective Time equal to the difference between the amount of the reimbursement actually received by the Company and $400,000;
(b) it shall not (i) amend its charter or bylaws; (ii) split, combine or reclassify any its outstanding shares of capital stock of the Company or amend the terms of any rightsstock; (iii) authorize, warrants or options to acquire its securities, (ii) declare, set aside or pay any dividend or other distribution (whether payable in cash, stock or property or any combination thereof) in respect of its Equity Interests, any capital stock; or (iiiiv) redeemrepurchase, repurchase redeem or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any shares of its securities or any rights, warrants or options to acquire its securitiescapital stock, except for ordinary course dividends by in connection with cashless exercise of Company Subsidiaries or, with respect to clause (iii) only, pursuant to the existing terms of any Company Employee Plan or Foreign Plan or any agreement executed pursuant theretoOptions;
(c) it shall not (i) issue, deliver, sell, pledge, dispose of or authorize the issuance, delivery or sale encumber any shares of, its Equity Interests or any securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights or agreements of any rights, warrants or options kind to acquire, any shares of its Equity Interests, capital stock of any class or any Voting Debt or any other than, material property or assets (i) in connection with directors' qualifying shares, other than Common Shares issuable pursuant to options outstanding on the date hereof under the Stock Plans and as contemplated by Section 4.7); or (ii) other than in the issuance ordinary and usual course of Company Shares upon the exercise business, transfer, lease, license, guarantee, sell, mortgage, pledge, dispose of stock options granted prior to the date hereof or in accordance with their present terms, and encumber any material property or assets or incur or modify any material indebtedness or other liability; or (iii) the issuance incur any long-term indebtedness; or (iv) make any acquisition of, or investment in, assets or stock of Company Shares in exchange for CBRE Stock Fund Units allocated under the Deferred Compensation Plan prior to the date hereof, in accordance with the terms of the Deferred Compensation Planany other Person or entity;
(d) acquire (whether pursuant to mergerit shall not establish, stock adopt or asset purchase enter into, Compensation and Benefit Plans except as may be required by law, or otherwise) contractual obligations in one transaction or series of related transactions any Person, any Equity Interests of any Person, any division or business of any Person or all or substantially all effect as of the assets date of any Person for consideration having a fair market value in excess of $5.0 million in any single this Agreement, or series of related transactions or $15.0 million in the aggregateas contemplated by this Agreement;
(e) sellit shall not terminate or make any new, leaseor accelerate the vesting or payment of any existing, encumber grants or awards under, or amend or otherwise dispose of modify, any assets which are material to the Company Compensation and its Subsidiaries, taken as a whole, other than (i) sales Benefit Plans except in the ordinary course of business to persons other than officers and directors of the Company consistent with past practicepractice or as may be required by law, or contractual obligations in effect as of the date of this Agreement, or as contemplated by this Agreement;
(f) it shall not increase the salary, wage, bonus or other compensation of any employees other than normal base wage and base salary increases (but not as to officers and directors of the Company) in the ordinary and usual course of business or increases in connection with promotions in the normal course of business and it shall not enter into any new severance arrangements with its employees;
(g) it shall not (i) settle or compromise any material claims or litigation; (ii) pay, discharge, settle or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction of claims, liabilities or obligations in the ordinary and usual course of business; or (iii) make or change a Tax or accounting principle, practice or method unless required by GAAP or other Applicable Law, make or revoke any Tax election unless required by Applicable Law, or resolve any Tax audit or other similar proceeding;
(h) it shall not permit any insurance policy naming it as a beneficiary or loss-payable payee to be canceled or terminated except in the ordinary and usual course of business;
(i) it shall not enter into any agreement containing any provision or covenant limiting in any material respect the ability of the Company or affiliate to (i) sell any products or services of or to any other person, (ii) equipment and property no longer used engage in the operation any line of the Company's business, or (iii) assets related compete with any person; and
(j) it shall not authorize or enter into an agreement to discontinued operations, and (iv) contributions or other transfers do any of assets to any Joint Venture permitted by Section 6.1(d) hereof;the foregoing.
Appears in 2 contracts
Samples: Merger Agreement (Vitamin Shoppe Industries), Merger Agreement (Vitaminshoppe Com Inc)
Company Interim Operations. Except The Company covenants and agrees as to itself and its Subsidiaries that, after the date hereof and prior to the Effective Time, except as expressly contemplated by this Agreement or as set forth in the Company -------------------------- Disclosure on Schedule 7.1 or as otherwise expressly contemplated hereby, without except with the prior written consent of Acquiror (Parent, which consent shall not be unreasonably withheld delayed, conditioned or delayed), from the date hereof until the Effective Time, the Company shall, and shall cause each of its Material Subsidiaries to, conduct their business in all material respects in the ordinary course consistent with past practice (with such changes as the Company determines in good faith are necessary or advisable with respect to (w) changes in U.S. or global economic, industry or political conditions, (x) changes in U.S. or global financial markets or conditions, (y) any generally applicable change in Law or interpretation of any thereof and/or (z) the announcement of this Agreement or the transactions contemplated hereby or the Company's performance of its obligations under this Agreement and compliance with the covenants set forth herein), and shall use commercially reasonable efforts to (i) preserve intact its present business organization, (ii) maintain in effect all material Permits that are required for the Company or such Material Subsidiary to carry on its business, (iii) keep available the services of its present key officers and employees, and (iv) preserve existing relationships with its material customers, lenders, suppliers and others having material business relationships with it. Without limiting the generality of the foregoing, except as set forth in the Company Disclosure Schedule or as otherwise expressly contemplated by this Agreement, from the date hereof until the Effective Time, without the prior consent of Acquiror, the Company shall not, nor shall it permit any of its Subsidiaries, directly or indirectly, towithheld:
(a) the business of the Company and its Subsidiaries shall be conducted in the ordinary and usual course and, to the extent consistent therewith, the Company and its Subsidiaries shall use their respective commercially reasonable efforts to preserve their respective business organizations substantially intact and substantially maintain their existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associates;
(b) the Company shall not (i) issue, sell, pledge, dispose of or encumber any capital stock owned by it in any of its Subsidiaries; (ii) amend the Company's or any Subsidiary's certificate its articles of incorporation or by-laws code of regulations; (or equivalent organizational documents);
(iiii) split, combine or reclassify any its outstanding shares of capital stock of the Company or amend the terms of any rights, warrants or options to acquire its securities, stock; (iiiv) declare, set aside or pay any dividend or other distribution (whether payable in cash, stock or property or any combination thereof) in respect of its Equity Interestsany capital stock; or (v) repurchase, redeem or otherwise acquire, except in connection with the Stock Plans or employment arrangements, or (iii) redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire permit any of its securities Subsidiaries to purchase or otherwise acquire, any rights, warrants or options to acquire shares of its securities, except for ordinary course dividends by Company Subsidiaries or, with respect to clause (iii) only, pursuant to the existing terms of any Company Employee Plan or Foreign Plan or any agreement executed pursuant thereto;
(c) issue, deliver, sell, or authorize the issuance, delivery or sale of, its Equity Interests capital stock or any securities convertible into or exchangeable or exercisable for any shares of its capital stock;
(c) neither the Company nor any of its Subsidiaries shall (i) issue, sell, pledge, dispose of or encumber any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any rights, warrants or options kind to acquire, any shares of its Equity Interests, capital stock of any class or any Voting Debt or any other than, property or assets (i) in connection with directors' qualifying shares, other than the issuance of shares of Common Stock pursuant to the Company Options); (ii) the issuance transfer, lease, license, guarantee, sell, mortgage, pledge, dispose of Company Shares upon the exercise or encumber any other property or assets (including capital stock of stock options granted prior to the date hereof any of its Subsidiaries) or in accordance with their present terms, and incur or modify any material indebtedness or other liability; or (iii) make any commitments for, make or authorize any capital expenditures involving amounts in excess of $100,000 in the issuance aggregate or, by any means, make any commitments for, make or authorize any acquisition of, or investment in, assets or stock of Company Shares in exchange for CBRE Stock Fund Units allocated under the Deferred Compensation Plan prior to the date hereof, in accordance with the terms of the Deferred Compensation Plan;any other Person.
(d) acquire (whether pursuant to mergerexcept as may be required by existing contractual commitments, stock as contemplated by this Agreement or asset purchase or otherwise) in one transaction or series of related transactions any Personas required by applicable law, any Equity Interests of any Person, any division or business of any Person or all or substantially all of the assets of any Person for consideration having a fair market value in excess of $5.0 million in any single or series of related transactions or $15.0 million in the aggregate;
(e) sell, lease, encumber or otherwise dispose of any assets which are material to neither the Company and nor any of its Subsidiaries, taken as a whole, other than Subsidiaries shall (i) sales hire any new management employees; (ii) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees; (iii) enter into or guarantee any loans to employees; or (iv) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plans or increase or accelerate the salary, wage, bonus or other compensation of any employees, officers or directors (except for increases in salaries, wages and cash bonuses of nonexecutive employees made in the ordinary course of business consistent with past practice) or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;
(iie) equipment and property no longer used neither the Company nor any of its Subsidiaries shall settle or compromise any claims or litigation or modify, amend or terminate any of the Company Material Contracts or waive, release or assign any rights or claims;
(f) neither the Company nor any of its Subsidiaries shall make any material Tax election or permit any insurance policy naming it as a beneficiary or loss-payable payee to be canceled or terminated, except in the operation ordinary and usual course of business;
(g) except as may be required as a result of a change in law or GAAP, neither the Company nor any of its Subsidiaries shall change any of the Company's businessaccounting practices or principles used by it;
(h) neither the Company nor any of its Subsidiaries shall adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries not constituting an inactive Subsidiary;
(iiii) assets related to discontinued operationsneither the Company nor any of its Subsidiaries will offer to, or enter into an agreement to, do any of the foregoing; and
(j) the Company shall not, and (iv) contributions shall not permit any of its Subsidiaries to, take any action that would, or other transfers that could reasonably be expected to, result in any of assets to any Joint Venture permitted by the representations or warranties of the Company in Section 6.1(d) hereof;6.1 becoming untrue.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Liqui Box Corp), Merger Agreement (Davis Samuel B)
Company Interim Operations. Except as set forth in the Company -------------------------- Disclosure Schedule or as otherwise expressly contemplated hereby, without the prior consent of Acquiror (which consent shall not be unreasonably withheld or delayed), from the date hereof until the Effective Time, the Company shall, and shall cause each of its Material Subsidiaries to, conduct their business in all material respects in the ordinary course consistent with past practice (with such changes as the Company determines in good faith are necessary or advisable with respect to (w) changes in U.S. or global economic, industry or political conditions, (x) changes in U.S. or global financial markets or conditions, (y) any generally applicable change in Law or interpretation of any thereof and/or (z) the announcement of this Agreement or the transactions contemplated hereby or the Company's performance of its obligations under this Agreement and compliance with the covenants set forth herein), and shall use commercially reasonable efforts to (i) preserve intact its present business organization, (ii) maintain in effect all material Permits that are required for the Company or such Material Subsidiary to carry on its business, (iii) keep available the services of its present key officers and employees, and (iv) preserve existing relationships with its material customers, lenders, suppliers and others having material business relationships with it. Without limiting the generality of the foregoing, except as set forth in the Company Disclosure Schedule or as otherwise expressly contemplated by this Agreement, from the date hereof until the Effective Time, without the prior consent of Acquiror, the Company shall not, nor shall it permit any of its Subsidiaries, directly or indirectly, to:
(a) amend the Company's or any Subsidiary's certificate of incorporation or by-laws (or equivalent organizational documents);
(i) split, combine or reclassify any shares of capital stock of the Company or amend the terms of any rights, warrants or options to acquire its securities, (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 Equity Interests, or (iii) redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any of its securities or any rights, warrants or options to acquire its securities, except for ordinary course dividends by Company Subsidiaries or, with respect to clause (iii) only, pursuant to the existing terms of any Company Employee Plan or Foreign Plan or any agreement executed pursuant thereto;
(c) issue, deliver, sell, or authorize the issuance, delivery or sale of, its Equity Interests or any securities convertible into or exercisable for, or any rights, warrants or options to acquire, its Equity Interests, other than, (i) in connection with directors' qualifying shares, (ii) the issuance of Company Shares upon the exercise of stock options granted prior to the date hereof or in accordance with their present terms, and (iii) the issuance of Company Shares in exchange for CBRE CBC Stock Fund Units allocated under the Deferred Compensation Plan prior to the date hereof, in accordance with the terms of the Deferred Compensation Plan;
(d) acquire (whether pursuant to merger, stock or asset purchase or otherwise) in one transaction or series of related transactions any Person, any Equity Interests of any Person, any division or business of any Person or all or substantially all of the assets of any Person for consideration having a fair market value in excess of $5.0 million in any single or series of related transactions or $15.0 million in the aggregate;
(e) sell, lease, encumber or otherwise dispose of any assets which are material to the Company and its Subsidiaries, taken as a whole, other than (i) sales in the ordinary course of business consistent with past practice, (ii) equipment and property no longer used in the operation of the Company's business, (iii) assets related to discontinued operations, and (iv) contributions or other transfers of assets to any Joint Venture permitted by Section 6.1(d) hereof; provided, however, that the consent of Acquiror to do any of the foregoing shall not be unreasonably withheld;
(f) (i) (A) incur any indebtedness for borrowed money, except to fund working capital in the ordinary course consistent with past practice under the Company's existing credit facilities, (B) issue or sell any debt securities (except intercompany debt securities) or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, (C) make any loans, advances (other than to employees of and consultants to the Company in the ordinary course of business) or capital contributions to, or, except as permitted by 6.1(d), investments in, any other Person, other than to the Company or any Subsidiary of the Company or (D) assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any Person (other than obligations of Subsidiaries and the endorsements of negotiable instruments for collection in the ordinary course of business consistent with past practice), or (ii) enter into or materially amend any contract, agreement, commitment or arrangements to effect any of the transactions prohibited by this Section 6.1(f);
(g) except in the ordinary course of business consistent with past practice, (i) materially amend, modify or terminate any material contract, agreement or arrangement of the Company or any of its Material Subsidiaries or (ii) otherwise waive, release or assign any material rights, claims or benefits of the Company or any of its Material Subsidiaries thereunder; provided, however, that the consent of Acquiror to do any of the forgoing shall not be unreasonably withheld;
(i) except as required by Law or any existing agreement, increase the amount of compensation of any director or executive officer of the Company, (ii) except as required by Law, an agreement existing on the date hereof or pursuant to a Company severance policy existing on the date hereof, grant any severance or termination pay to any director or senior officer of the Company or any Material Subsidiary, (iii) adopt any additional material employee benefit plan or (iv) except as may be required by Law or as necessary to comply with the terms of this Agreement, amend in any material respect any Company Employee Plan or Foreign Plan; provided, however, that the consent of Acquiror to do any of the forgoing shall not be unreasonably withheld;
(i) materially change the Company's methods of accounting in effect at September 30, 2000, except as required by changes in GAAP or by Regulation S-X of the Exchange Act, as concurred in by its independent public accountants; provided, however, that the consent of Acquiror to do any of the forgoing shall not be unreasonably withheld;
(i) settle, pay or discharge, any litigation, investigation, arbitration, proceeding or other claim that is material to the business, financial condition or results of operations of the Company and its Subsidiaries, taken as a whole or (ii) settle, pay or discharge any Claim against the Company with respect to or arising out of the transactions contemplated by this Agreement;
(k) other than in the ordinary course of business consistent with past practice, (i) make any material Tax election or take any position on any Company Return filed on or after the date of this Agreement or adopt any method therein that is materially inconsistent with elections made, positions taken or methods used in preparing or filing similar returns in prior periods, (ii) enter into any settlement or compromise of any material Tax liability that in either case is material to the business of the Company and its Subsidiaries, taken as a whole, (iii) file any amended Company Return with respect to any material Tax, (iv) change any annual Tax accounting period, (v) enter into any closing agreement relating to any material Tax or (vi) surrender any right to claim a material Tax refund;
(l) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger); and
(m) agree or commit to do any of the foregoing; provided that the limitations set forth in Sections 6.1(b) through 6.1(g) and Section 6.1(l) shall not apply to any action, transaction or event occurring exclusively between the Company and any Company Subsidiary or exclusively between any Company Subsidiaries.
Appears in 2 contracts
Samples: Merger Agreement (Cb Richard Ellis Services Inc), Merger Agreement (Wardlaw William M)
Company Interim Operations. Except as set forth in the Company -------------------------- Disclosure Schedule or as otherwise expressly contemplated hereby, without the prior consent of Acquiror (which consent shall not be unreasonably withheld or delayed), from the date hereof until the Effective Time, the Company shall, and shall cause each of its Material Subsidiaries to, conduct their business in all material respects in the ordinary course consistent with past practice (with such changes as the Company determines in good faith are necessary or advisable with respect to (w) changes in U.S. or global economic, industry or political conditions, (x) changes in U.S. or global financial markets or conditions, (y) any generally applicable change in Law or interpretation of any thereof and/or (z) the announcement of this Agreement or the transactions contemplated hereby or the Company's performance of its obligations under this Agreement and compliance with the covenants set forth herein), and shall use commercially reasonable efforts to (i) preserve intact its present business organization, (ii) maintain in effect all material Permits that are required for the Company or such Material Subsidiary to carry on its business, (iii) keep available the services of its present key officers and employees, and (iv) preserve existing relationships with its material customers, lenders, suppliers and others having material business relationships with it. Without limiting the generality of the foregoing, except as set forth in the Company Disclosure Schedule or as otherwise expressly contemplated by this Agreement, from the date hereof until the Effective Time, without the prior consent of Acquiror, the Company shall not, nor shall it permit any of its Subsidiaries, directly or indirectly, to:
(a) amend the Company's or any Subsidiary's certificate of incorporation or by-laws (or equivalent organizational documents);
(b) (i) split, combine or reclassify any shares of capital stock of the Company or amend the terms of any rights, warrants or options to acquire its securities, (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 Equity Interests, or (iii) redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any of its securities or any rights, warrants or options to acquire its securities, except for ordinary course dividends by Company Subsidiaries or, with respect to clause (iii) only, pursuant to the existing terms of any Company Employee Plan or Foreign Plan or any agreement executed pursuant thereto;
(c) issue, deliver, sell, or authorize the issuance, delivery or sale of, its Equity Interests or any securities convertible into or exercisable for, or any rights, warrants or options to acquire, its Equity Interests, other than, (i) in connection with directors' qualifying shares, (ii) the issuance of Company Shares upon the exercise of stock options granted prior to the date hereof or in accordance with their present terms, and (iii) the issuance of Company Shares in exchange for CBRE Stock Fund Units allocated under the Deferred Compensation Plan prior to the date hereof, in accordance with the terms of the Deferred Compensation Plan;
(d) acquire (whether pursuant to merger, stock or asset purchase or otherwise) in one transaction or series of related transactions any Person, any Equity Interests of any Person, any division or business of any Person or all or substantially all of the assets of any Person for consideration having a fair market value in excess of $5.0 million in any single or series of related transactions or $15.0 million in the aggregate;
(e) sell, lease, encumber or otherwise dispose of any assets which are material to the Company and its Subsidiaries, taken as a whole, other than (i) sales in the ordinary course of business consistent with past practice, (ii) equipment and property no longer used in the operation of the Company's business, (iii) assets related to discontinued operations, and (iv) contributions or other transfers of assets to any Joint Venture permitted by Section 6.1(d) hereof; provided, however, that the consent of Acquiror to do any of the foregoing shall not be unreasonably withheld;
(f) (i) (A) incur any indebtedness for borrowed money, except to fund working capital in the ordinary course consistent with past practice under the Company's existing credit facilities, (B) issue or sell any debt securities (except intercompany debt securities) or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, (C) make any loans, advances (other than to employees of and consultants to the Company in the ordinary course of business) or capital contributions to, or, except as permitted by 6.1(d), investments in, any other Person, other than to the Company or any Subsidiary of the Company or (D) assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any Person (other than obligations of Subsidiaries and the endorsements of negotiable instruments for collection in the ordinary course of business consistent with past practice), or (ii) enter into or materially amend any contract, agreement, commitment or arrangements to effect any of the transactions prohibited by this Section 6.1(f);
(g) except in the ordinary course of business consistent with past practice, (i) materially amend, modify or terminate any material contract, agreement or arrangement of the Company or any of its Material Subsidiaries or (ii) otherwise waive, release or assign any material rights, claims or benefits of the Company or any of its Material Subsidiaries thereunder; provided, however, that the consent of Acquiror to do any of the forgoing shall not be unreasonably withheld;
(i) except as required by Law or any existing agreement, increase the amount of compensation of any director or executive officer of the Company, (ii) except as required by Law, an agreement existing on the date hereof or pursuant to a Company severance policy existing on the date hereof, grant any severance or termination pay to any director or senior officer of the Company or any Material Subsidiary, (iii) adopt any additional material employee benefit plan or (iv) except as may be required by Law or as necessary to comply with the terms of this Agreement, amend in any material respect any Company Employee Plan or Foreign Plan; provided, however, that the consent of Acquiror to do any of the forgoing shall not be unreasonably withheld;
(i) materially change the Company's methods of accounting in effect at September 30, 2000, except as required by changes in GAAP or by Regulation S-X of the Exchange Act, as concurred in by its independent public accountants; provided, however, that the consent of Acquiror to do any of the forgoing shall not be unreasonably withheld;
(i) settle, pay or discharge, any litigation, investigation, arbitration, proceeding or other claim that is material to the business, financial condition or results of operations of the Company and its Subsidiaries, taken as a whole or (ii) settle, pay or discharge any Claim against the Company with respect to or arising out of the transactions contemplated by this Agreement;
(k) other than in the ordinary course of business consistent with past practice, (i) make any material Tax election or take any position on any Company Return filed on or after the date of this Agreement or adopt any method therein that is materially inconsistent with elections made, positions taken or methods used in preparing or filing similar returns in prior periods, (ii) enter into any settlement or compromise of any material Tax liability that in either case is material to the business of the Company and its Subsidiaries, taken as a whole, (iii) file any amended Company Return with respect to any material Tax, (iv) change any annual Tax accounting period, (v) enter into any closing agreement relating to any material Tax or (vi) surrender any right to claim a material Tax refund;
(l) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger); and
(m) agree or commit to do any of the foregoing; provided that the limitations set forth in Sections 6.1(b) through 6.1(g) and Section 6.1(l) shall not apply to any action, transaction or event occurring exclusively between the Company and any Company Subsidiary or exclusively between any Company Subsidiaries.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Cb Richard Ellis Services Inc)
Company Interim Operations. Except as set forth in the Company -------------------------- Disclosure Schedule or as otherwise expressly contemplated herebypermitted by any other provision of this Agreement, without the prior consent of Acquiror (which consent shall not be unreasonably withheld or delayed)Acquiror, from the date hereof until the Effective Time, the Company shall, and shall cause each of its Material Subsidiaries to, conduct their business in all material respects respective businesses only in the ordinary and usual course consistent with past practice (with such changes as the Company determines in good faith are necessary or advisable with respect to (w) changes in U.S. or global economic, industry or political conditions, (x) changes in U.S. or global financial markets or conditions, (y) any generally applicable change in Law or interpretation of any thereof and/or (z) the announcement of this Agreement or the transactions contemplated hereby or the Company's performance of its obligations under this Agreement and compliance with the covenants set forth herein)practice, and shall use commercially reasonable efforts best efforts, to (i) preserve intact its present business organization, (ii) maintain in effect all material Permits that are required for the Company or such Material Subsidiary to carry on its business, (iii) keep available the services of its present officers, key officers employees and employeesconsultants of the Company and each Company Subsidiary, and (iviii) preserve existing relationships with its material customers, lenders, suppliers and others having material other Persons with which the Company or any Company Subsidiary has significant business relationships with it37 relationships. Without limiting the generality of the foregoing, and as an extension thereof, except as set forth in the Company Disclosure Schedule or as otherwise expressly contemplated by this Agreement, from the date hereof until the Effective Time, without the prior consent of Acquiror, the Company shall not, nor not and shall it not permit any of its Subsidiaries, directly or indirectly, to:
(a) amend the Company's propose or adopt any Subsidiary's certificate change in its Certificate of incorporation Incorporation or byBy-laws (or equivalent organizational or governing documents);
(b) (i) split, combine or reclassify any shares of capital stock of the Company or amend the terms of any rights, warrants or options to acquire its securities, (ii) except for ordinary course dividends by a Company Subsidiary, declare, set aside or pay any dividend (including, without limitation, an extraordinary dividend) or other distribution (whether in cash, stock or property or any combination thereof) in respect of its Equity Interests, or (iii) redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any of its securities or any rights, warrants or options to acquire its securities, except for ordinary course dividends by Company Subsidiaries or, with respect to clause (iii) only, pursuant to the existing terms of any Company Employee Plan or Foreign Plan or any agreement executed pursuant thereto;
(c) issue, deliver, sell, grant, pledge, encumber or transfer or authorize the issuance, delivery delivery, sale, grant, pledge, encumbrance or sale transfer of, or agree to commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) its Equity Interests or any securities convertible into or exercisable for, or any rights, warrants or options to acquire, for its Equity Interests, other than, (i) in connection with directors' qualifying shares, (ii) than the issuance of Company Shares upon pursuant to the exercise of stock options granted prior to Company Options, or the date hereof or in accordance with their present terms, and (iii) the issuance conversion of Company Shares in exchange for CBRE Stock Fund Units allocated under the Deferred Compensation Plan prior to the date hereofConvertible Debt, in accordance with the terms of the Deferred Compensation Planeach case, outstanding on March 31, 2003;
(d) merge with or acquire (whether pursuant to by merger, consolidation, acquisition of stock or asset purchase assets, joint venture or otherwiseotherwise of a direct or indirect ownership interest or investment) in one transaction or series of related transactions any Person, for an aggregate consideration in excess of $1,000,000, any Equity Interests or other securities of any Person, any division or business of any Person or all or substantially all of the assets of any Person for consideration having a fair market value in excess of $5.0 million in any single or series of related transactions or $15.0 million in the aggregatePerson;
(e) sell, lease, encumber or otherwise dispose of any assets or securities with carrying value in excess of $1,000,000;
(f) (i) (A) incur any indebtedness for borrowed money, except to fund operations of the business in the ordinary course consistent with past practice under the Company's existing credit facility, (B) issue or sell any debt securities of the Company or any Company Subsidiary; (C) make any loans, advances or capital contributions to, or, except as permitted by Section 6.1(d), investments in, any other Person, other than in the ordinary course of business consistent with past practices, in no event in an aggregate principal amount in excess of $1,000,000, (D) assume, guarantee or endorse, or otherwise become liable or responsible (whether directly, contingently or otherwise) for, the obligations of any Person (other than obligations of Subsidiaries and the endorsements of negotiable instruments for collection in each such case in the ordinary course of business consistent with past practice), (E) alter or amend in any way any compensation (including without limitation, any commission schedule) or other payments due to employees or independent contractors of the Company or (ii) enter into or materially amend any contract, agreement, commitment or arrangements to effect any of the transactions prohibited by this Section 6.1(f);
(i) except as required by Law or any existing agreement, increase the amount of compensation of any director or officer of the Company or any Company Subsidiary, (ii) except as required by Law, an agreement existing on the date hereof or pursuant to a Company severance policy existing on the date hereof, grant any severance or termination pay to any director, employee, consultant, independent contractor or agent of the Company or any Company Subsidiary, (iii) adopt any additional employee benefit plan, (iv) provide for the payment of any amounts as a result of the consummation of the transactions contemplated by this Agreement, (v) except as may be required by Law or as necessary to comply with the terms of this Agreement, amend in any material respect any Company Employee Plan or (v) pay any bonuses except to the extent provided on Schedule 6.1(g); PROVIDED, HOWEVER, in each case above, any changes after the date hereof which are were disclosed in Company's 2003 budget delivered previously to Parent shall not be deemed applicable to the limitations of this Section;
(h) authorize any single capital expenditure or any expenditures not in the ordinary course of business in excess of $1,000,000 or aggregate capital expenditures and other expenditures not in the ordinary course of business in excess of $2,000,000;
(i) make any changes in its accounting methods, principles or practices currently in effect, except as required by changes in GAAP or by Regulation S-X of the Exchange Act, in each case as concurred in by its independent public accountants;
(i) settle, pay or discharge, any litigation, investigation, arbitration, proceeding or other claim, liability or obligation arising from the conduct of business in the ordinary course for an amount in excess of $1,000,000 or (ii) settle, pay or discharge any claim against the Company with respect to or arising out of the transactions contemplated by this Agreement for an amount in excess of $1,000,000 in the aggregate;
(i) make any material Tax election or take any position on any Company Return filed on or after the date of this Agreement or adopt any method therein that is inconsistent with elections made, positions taken or methods used in preparing or filing similar returns in prior periods unless such position or election is pursuant to changes in applicable Law or the Code, (ii) enter into any settlement or compromise of any material Tax liability, (iii) file any amended Company Return with respect to any material Tax, (iv) change any annual Tax accounting period, (v) enter into any closing agreement relating to any material Tax, (vi) surrender any right to claim a material Tax refund or (vii) give or request any waiver of a statute of limitation with respect to any Company Return;
(l) enter into any new line of business;
(m) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any Company Subsidiary (other 39 than the Merger);
(n) grant any loan, advance, extensions of credit to current or former employees or forgiveness or deferral of any loans due from any employee;
(o) affect new programs or change existing programs that relate to employment contracts, severance benefits, change in control benefits, bonuses, commissions, base salaries, phantom stock grants, incentive trips, prizes and awards, 401-k and pension benefits, vacation and PTO benefits, health and medical benefits or any other remuneration of any kind to any employee;
(p) enter into any contract or agreement other than in the ordinary course of business consistent with past practices that would be material to the Company and its Subsidiaries, taken as a whole;
(q) amend, modify or waive in any material respects any right under any Material Contract of the Company or any of its Subsidiaries;
(r) take any action that would result in any representation or warranty of the Company contained in this Agreement which is qualified as to materiality becoming untrue as of the Effective Time or any representation or warranty not so qualified becoming untrue in any material respect as of the Effective Time;
(s) except as required by applicable Law or GAAP, revalue in any material respect any of its assets, including writing down the value of inventory in any material manner, or writing-off notes or accounts receivable in any material manner;
(t) alter through merger, liquidation, reorganization or restructuring or any other fashion the corporate structure or ownership of any Company Subsidiary;
(u) permit to lapse any registrations or applications for material Intellectual Property owned, licensed, or used by the Company or its Subsidiaries;
(v) sell, assign, license or encumber any material Intellectual Property of the Company or of any of the Company Subsidiaries, other than (i) sales in the ordinary course of business business, consistent with past practice; or
(w) authorize, (ii) equipment and property no longer used in the operation agree or commit to do any of the Company's business, (iii) assets related to discontinued operations, and (iv) contributions or other transfers of assets to any Joint Venture permitted by Section 6.1(d) hereof;foregoing.
Appears in 1 contract
Company Interim Operations. Except as set forth in the Company -------------------------- Disclosure Schedule or as otherwise expressly contemplated hereby, without the prior consent of Acquiror (which consent shall not be unreasonably withheld or delayed), from the date hereof until the Effective Time, the Company shall, and shall cause each of its Material Subsidiaries to, conduct their business in all material respects in the ordinary course consistent with past practice (with such changes as the Company determines in good faith are necessary or advisable with respect to (w) changes in U.S. or global economic, industry or political conditions, (x) changes in U.S. or global financial markets or conditions, (y) any generally applicable change in Law or interpretation of any thereof and/or (z) the announcement of this Agreement or the transactions contemplated hereby or the Company's performance of its obligations under this Agreement and compliance with the covenants set forth herein), and shall use commercially reasonable efforts to (i) preserve intact its present business organization, (ii) maintain in effect all material Permits that are required for the Company or such Material Subsidiary to carry on its business, (iii) keep available the services of its present key officers and employees, and (iv) preserve existing relationships with its material customers, lenders, suppliers and others having material business relationships with it. Without limiting the generality of the foregoing, except as set forth in the Company Disclosure Schedule or as otherwise expressly contemplated by this Agreement, from the date hereof until the Effective Time, without the prior consent of Acquiror, the Company shall not, nor shall it permit any of its Subsidiaries, directly or indirectly, to:
(a) amend the Company's or any Subsidiary's certificate of incorporation or by-laws (or equivalent organizational documents);
(i) split, combine or reclassify any shares of capital stock of the Company or amend the terms of any rights, warrants or options to acquire its securities, (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 Equity Interests, or (iii) redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any of its securities or any rights, warrants or options to acquire its securities, except for ordinary course dividends by Company Subsidiaries or, with respect to clause (iii) only, pursuant to the existing terms of any Company Employee Plan or Foreign Plan or any agreement executed pursuant thereto;
(c) issue, deliver, sell, or authorize the issuance, delivery or sale of, its Equity Interests or any securities convertible into or exercisable for, or any rights, warrants or options to acquire, its Equity Interests, other than, (i) in connection with directors' qualifying shares, (ii) the issuance of Company Shares upon the exercise of stock options granted prior to the date hereof or in accordance with their present terms, and (iii) the issuance of Company Shares in exchange for CBRE Stock Fund Units allocated under the Deferred Compensation Plan prior to the date hereof, in accordance with the terms of the Deferred Compensation Plan;
(d) acquire (whether pursuant to merger, stock or asset purchase or otherwise) in one transaction or series of related transactions any Person, any Equity Interests of any Person, any division or business of any Person or all or substantially all of the assets of any Person for consideration having a fair market value in excess of $5.0 million in any single or series of related transactions or $15.0 million in the aggregate;
(e) sell, lease, encumber or otherwise dispose of any assets which are material to the Company and its Subsidiaries, taken as a whole, other than (i) sales in the ordinary course of business consistent with past practice, (ii) equipment and property no longer used in the operation of the Company's business, (iii) assets related to discontinued operations, and (iv) contributions or other transfers of assets to any Joint Venture permitted by Section 6.1(d) hereof; provided, however, that the consent of Acquiror to do any of the foregoing shall not be unreasonably withheld;
(f) (i) (A) incur any indebtedness for borrowed money, except to fund working capital in the ordinary course consistent with past practice under the Company's existing credit facilities, (B) issue or sell any debt securities (except intercompany debt securities) or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, (C) make any loans, advances (other than to employees of and consultants to the Company in the ordinary course of business) or capital contributions to, or, except as permitted by 6.1(d), investments in, any other Person, other than to the Company or any Subsidiary of the Company or (D) assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any Person (other than obligations of Subsidiaries and the endorsements of negotiable instruments for collection in the ordinary course of business consistent with past practice), or (ii) enter into or materially amend any contract, agreement, commitment or arrangements to effect any of the transactions prohibited by this Section 6.1(f);
(g) except in the ordinary course of business consistent with past practice, (i) materially amend, modify or terminate any material contract, agreement or arrangement of the Company or any of its Material Subsidiaries or (ii) otherwise waive, release or assign any material rights, claims or benefits of the Company or any of its Material Subsidiaries thereunder; provided, however, that the consent of Acquiror to do any of the forgoing shall not be unreasonably withheld;
(i) except as required by Law or any existing agreement, increase the amount of compensation of any director or executive officer of the Company, (ii) except as required by Law, an agreement existing on the date hereof or pursuant to a Company severance policy existing on the date hereof, grant any severance or termination pay to any director or senior officer of the Company or any Material Subsidiary, (iii) adopt any additional material employee benefit plan or (iv) except as may be required by Law or as necessary to comply with the terms of this Agreement, amend in any material respect any Company Employee Plan or Foreign Plan; provided, however, that the consent of Acquiror to do any of the forgoing shall not be unreasonably withheld;
(i) materially change the Company's methods of accounting in effect at September 30, 2000, except as required by changes in GAAP or by Regulation S-X of the Exchange Act, as concurred in by its independent public accountants; provided, however, that the consent of Acquiror to do any of the forgoing shall not be unreasonably withheld;
(i) settle, pay or discharge, any litigation, investigation, arbitration, proceeding or other claim that is material to the business, financial condition or results of operations of the Company and its Subsidiaries, taken as a whole or (ii) settle, pay or discharge any Claim against the Company with respect to or arising out of the transactions contemplated by this Agreement;
(k) other than in the ordinary course of business consistent with past practice, (i) make any material Tax election or take any position on any Company Return filed on or after the date of this Agreement or adopt any method therein that is materially inconsistent with elections made, positions taken or methods used in preparing or filing similar returns in prior periods,
Appears in 1 contract
Company Interim Operations. Except as set forth in the Company -------------------------- Disclosure Schedule or as otherwise expressly contemplated hereby, without the prior consent of Acquiror (which consent shall not be unreasonably withheld or delayed), from the date hereof until the Effective Time, the Company shall, and shall cause each of its Material Subsidiaries Company Subsidiary to, conduct their its business in all material respects in the usual, regular and ordinary course consistent with past practice (with such changes as the Company determines in good faith are necessary or advisable with respect to (w) changes in U.S. or global economic, industry or political conditions, (x) changes in U.S. or global financial markets or conditions, (y) any generally applicable change in Law or interpretation of any thereof and/or (z) the announcement of this Agreement or the transactions contemplated hereby or the Company's performance of its obligations under this Agreement and compliance with the covenants set forth herein), and shall use commercially reasonable efforts to (i) preserve intact its present business organizationorganizations, (ii) maintain in effect all material Permits foreign, federal, state and local licenses, approvals and authorizations, including, all material licenses and permits that are required for the Company or such Material Subsidiary and its Subsidiaries to carry on its business, business and (iii) keep available the services of its present key officers and employees, and (iv) preserve existing relationships with its material customers, lenders, suppliers and others having material business relationships with itthem; (iv) maintain insurance coverages and its books, accounts and records in the usual manner consistent with prior practices; and (v) maintain and keep its properties and equipment in good repair, working order and condition (ordinary wear and tear excepted); provided, however, that in each case, the Company shall not be held responsible for any change or development relating to (A) U.S. or global economic or industry conditions, (B) changes in U.S. or global financial markets or conditions , (C) any generally applicable change in law, rule or regulation or GAAP or interpretation of any thereof and/or (D) the announcement of this Agreement or the transactions contemplated hereby. Without limiting the generality of the foregoing, except as set forth in the Company Disclosure Schedule or as otherwise expressly contemplated by this Agreement, from the date hereof until the Effective Time, without the prior consent of AcquirorAcquiror (which consent shall not be unreasonably withheld or delayed), the Company shall not, nor shall it permit any of its SubsidiariesCompany Subsidiary to, directly or indirectly, to:
(a) amend the Company's or any Company Subsidiary's certificate of incorporation or by-laws (or equivalent organizational documents)laws;
(ib) split, combine or reclassify any shares of capital stock of the Company or amend the terms of any rights, warrants or options to acquire its securities, (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 Equity Interestscapital stock, or (iii) redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any of its securities or any rights, warrants or options to acquire its securities, except (i) for ordinary course dividends by Company Subsidiaries or, with respect to clause or (iiiii) only, pursuant to the existing terms of any Company Employee Plan or Foreign Plan or any agreement executed pursuant theretoPlan;
(c) issue, deliver, deliver or sell, or authorize the issuance, delivery or sale of, any shares of its Equity Interests capital stock or any securities convertible into or exercisable for, or any rights, warrants or options to acquire, its Equity Interestsany capital stock, other thanincluding, (i) without limitation, in connection with directors' qualifying sharesthe Company Employee Plans or other benefit plans or arrangements existing on the date hereof, other than (iii) the issuance of Company Shares upon the exercise of stock options granted prior to the date hereof or in accordance with their present terms, terms and (iiiii) the issuance granting of options to acquire Company Shares to Directors of the Company pursuant to the Directors Stock Option Plan as in exchange for CBRE Stock Fund Units allocated under the Deferred Compensation Plan prior to effect on the date hereof, in accordance with the terms of the Deferred Compensation Plan;
(d) acquire or agree to acquire (whether pursuant to merger, stock or asset purchase or otherwise) in one transaction or series of related transactions any Personassets (including any equity interests) or businesses, any Equity Interests of any Person, any division or business of any Person or all or substantially all of the other than (i) current assets of any Person for consideration having a fair market value in excess of $5.0 million in any single or series of related transactions or $15.0 million in the aggregateordinary course of business, (ii) the aggregate amount set forth in the Company's capital budget for fiscal year 2001 previously provided to Acquiror and identified as such and (iii) the aggregate amount set forth in the Company's hospital construction budget for fiscal year 2001 previously provided to Acquiror and identified as such;
(e) sell, lease, pledge, encumber or otherwise dispose of or agree to sell, lease, pledge, encumber or otherwise dispose of any assets which are material to the Company and its Subsidiaries, taken as a wholeassets, other than (i) sales in the ordinary course of business consistent with past practicewhich are not material, (ii) equipment and property no longer used in the operation of the Company's business, business and (iii) assets related to discontinued operations;
(f) incur any indebtedness for borrowed money or guarantee any indebtedness or issue or sell any debt securities or warrants or rights to acquire any debt securities of the Company or any of its Subsidiaries or guarantee any debt securities of others, other than intercompany debt and borrowing under the Company's existing lines in the ordinary course of business;
(g) except in the ordinary course of business, amend, modify or terminate any material contract, agreement or arrangement of the Company or any of its Subsidiaries or otherwise waive, release or assign any material rights, claims or benefits of the Company or any of its Subsidiaries thereunder; in each case, except for such actions as would not be material to the Company and its subsidiaries, taken as a whole;
(i) increase the amount of compensation of any director, executive officer or employee or make any increase in or commitment to increase any employee benefits, (ii) except as required by law, amend an agreement existing on the date hereof or Company severance policy as of the date hereof, grant any severance or termination pay to any director, officer or employee of the Company or any Company Subsidiary, (iii) adopt any additional employee benefit plan or, except in the ordinary course of business, make any contribution to any existing plan or (iv) contributions except as may be required by law, amend in any material respect any Company Employee Plan;
(i) materially change the Company's methods of accounting in effect at June 30, 2000, except as required by changes in GAAP or by Regulation S-X of the Exchange Act, as concurred in by its independent public accountants;
(k) settle, or propose to settle, any litigation, investigation, arbitration, proceeding or other transfers claim that is material to the business of assets the Company and the Company Subsidiaries, taken as a whole, other than the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice, of liabilities (i) recognized or disclosed in the most recent consolidated financial statements (or notes thereto) of the Company included in the Company SEC Documents or (ii) incurred since the date of such financial statements in the ordinary course of business consistent with past practice which are not material to the Company and its Subsidiaries taken as a whole;
(i) make any Joint Venture permitted by tax election or take any position on any tax return filed on or after the date of this Agreement or adopt any method thereof that is inconsistent with elections made, positions taken or methods used in preparing or filing similar returns in prior periods or (ii) enter into any settlement or compromise of any tax liability that in either case is material to the business of the Company and the Company Subsidiaries, taken as a whole;
(m) subject to Section 6.1(d6.3(a), waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement;
(n) hereofenter into any new, or modify any existing, capitation contract, agreement or arrangement;
(o) amend, modify or terminate the Company Rights Agreement or take any action which would render the Company Rights Agreement inapplicable to a third party;
(p) authorize any of, or announce an intention to, commit or agree to take any of, the foregoing actions or any action or the failure to take any such action which would result in a breach of any representation or warranty of the Company contained in this Agreement as of the date when made or as of any future date or would result in any of the covenants or conditions not being satisfied.
Appears in 1 contract
Company Interim Operations. Except as set forth in the Company -------------------------- Disclosure Schedule or as otherwise expressly contemplated hereby, without the prior consent of Acquiror (which consent shall not be unreasonably withheld or delayed), from the date hereof until the Effective Time, the Company shall, and shall cause each of its Material Subsidiaries to, conduct their business in all material respects in the ordinary course consistent with past practice (with such changes as the Company determines in good faith are necessary or advisable with respect to (w) changes in U.S. or global economic, industry or political conditions, (x) changes in U.S. or global financial markets or conditions, (y) any generally applicable change in Law or interpretation of any thereof and/or (z) the announcement of this Agreement or the transactions contemplated hereby or the Company's performance of its obligations under this Agreement and compliance with the covenants set forth herein), and shall use commercially reasonable efforts to (i) preserve intact its present business organization, (ii) maintain in effect all material Permits that are required for the Company or such Material Subsidiary to carry on its business, (iii) keep available the services of its present key officers and employees, and (iv) preserve existing relationships with its material customers, lenders, suppliers and others having material business relationships with it. Without limiting the generality of the foregoing, except as set forth in the Company Disclosure Schedule or as otherwise expressly contemplated by this Agreement, from the date hereof until the Effective Time, without the prior consent of Acquiror, the Company shall not, nor shall it permit any of its Subsidiaries, directly or indirectly, to:
: (a) amend the Company's or any Subsidiary's certificate of incorporation or by-laws (or equivalent organizational documents);
(i) split, combine or reclassify any shares of capital stock of the Company or amend the terms of any rights, warrants or options to acquire its securities, (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 Equity Interests, or (iii) redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any of its securities or any rights, warrants or options to acquire its securities, except for ordinary course dividends by Company Subsidiaries or, with respect to clause (iii) only, pursuant to the existing terms of any Company Employee Plan or Foreign Plan or any agreement executed pursuant thereto;
(c) issue, deliver, sell, or authorize the issuance, delivery or sale of, its Equity Interests or any securities convertible into or exercisable for, or any rights, warrants or options to acquire, its Equity Interests, other than, (i) in connection with directors' qualifying shares, (ii) the issuance of Company Shares upon the exercise of stock options granted prior to the date hereof or in accordance with their present terms, and (iii) the issuance of Company Shares in exchange for CBRE Stock Fund Units allocated under the Deferred Compensation Plan prior to the date hereof, in accordance with the terms of the Deferred Compensation Plan;
(d) acquire (whether pursuant to merger, stock or asset purchase or otherwise) in one transaction or series of related transactions any Person, any Equity Interests of any Person, any division or business of any Person or all or substantially all of the assets of any Person for consideration having a fair market value in excess of $5.0 million in any single or series of related transactions or $15.0 million in the aggregate;
(e) sell, lease, encumber or otherwise dispose of any assets which are material to the Company and its Subsidiaries, taken as a whole, other than (i) sales in the ordinary course of business consistent with past practice, (ii) equipment and property no longer used in the operation of the Company's business, (iii) assets related to discontinued operations, and (iv) contributions or other transfers of assets to any Joint Venture permitted by Section 6.1(d) hereof;
Appears in 1 contract
Samples: Agreement and Plan of Merger (Cb Richard Ellis Services Inc)
Company Interim Operations. (a) Except as set forth in Section 6.1 of the Company -------------------------- Disclosure Schedule or as otherwise contemplated or expressly contemplated herebypermitted by this Agreement or any Ancillary Agreement, without the prior written consent of Acquiror Buyer (which consent shall not be unreasonably withheld withheld, conditioned or delayed), from the date hereof until the Effective Time, (x) the Company shall, and shall cause each of its Material the Company Subsidiaries to, conduct their business the U.S. Government Business in all material respects in the ordinary course of business, consistent with past practice (with such changes as the Company determines in good faith are necessary or advisable with respect to (w) changes in U.S. or global economic, industry or political conditions, (x) changes in U.S. or global financial markets or conditions, and (y) any generally applicable change in Law or interpretation of any thereof and/or (z) the announcement of this Agreement or the transactions contemplated hereby or the Company's performance of its obligations under this Agreement and compliance with the covenants set forth herein)Company shall, and shall cause the Company Subsidiaries to, use their commercially reasonable efforts to (i) preserve intact its present business organizationthe U.S. Government Business, (ii) maintain in effect all the material Permits that are required for Excluded Assets and the Company or such Material Subsidiary to carry on its business, (iii) keep available relationships of the services of its present key officers U.S. Government Business with material customers and employees, and (iv) preserve existing relationships with its material customers, lenders, suppliers and others having material business relationships dealings with it, and to keep available the services of the present directors, officers, Principals and significant employees of the U.S. Government Business. Without limiting the generality of the foregoing, except as set forth in Section 6.1 of the Company Disclosure Schedule or as otherwise expressly contemplated by this Agreement or any Ancillary Agreement, from the date hereof until the Effective Time, without the prior written consent of AcquirorBuyer (such consent not to be unreasonably withheld, conditioned or delayed), the Company shall not, nor shall it permit any of its Subsidiariesthe Company Subsidiaries to, directly or indirectly, to:
(ai) amend the Company's Organizational Documents of the Company or any U.S. Government Subsidiary's certificate of incorporation or by-laws (or equivalent organizational documents);
(iii) in respect of the Company and any U.S. Government Subsidiaries, (A) split, combine or reclassify any shares of capital stock of the Company Securities or U.S. Government Subsidiaries Securities or amend the terms of any rights, warrants or options to acquire its securitiesCompany Securities or U.S. Government Subsidiaries Securities, (iiB) declareexcept for dividends or distributions to the Company or any U.S. Government Subsidiaries, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its Equity InterestsInterests or otherwise make any payments to holders of such Equity Interests in their capacities as such, or (iiiC) except prior to the amendment of the Stock Rights Plan pursuant to Section 6.5 and as expressly required pursuant to the Stock Rights Plan, redeem, repurchase or otherwise acquire any Company Securities or offer U.S. Government Subsidiaries Securities or permit any holder of a Company Stock Right to redeem, repurchase, or otherwise acquire any of its securities or any rights, warrants or options to acquire its securities, except for ordinary course dividends by Company Subsidiaries or, with respect to clause exercise such right (iii) only, other than pursuant to the existing terms of any Company Employee Plan or Foreign Plan or any agreement executed pursuant theretoAcceleration);
(ciii) issue, deliver, sell, exchange, grant, pledge, encumber or transfer or authorize the issuance, delivery delivery, sale, grant, pledge, encumbrance or sale transfer of, its Equity Interests any Company Securities or any securities convertible into or exercisable for, or any rights, warrants or options to acquire, its Equity Interests, U.S. Government Subsidiaries Securities (other than, (i) in connection with directors' qualifying shares, (ii) the issuance of Company Shares upon than the exercise of stock options granted prior Company Stock Rights listed in Section 6.1 of the Company Disclosure Schedule under the Stock Rights Plan) or name or otherwise appoint any new officers of the Company or any of the Company Subsidiaries to the date hereof or in accordance with their present terms, and (iii) the issuance of extent such appointment would entitle such new officer to Company Shares in exchange for CBRE Stock Fund Units allocated under the Deferred Compensation Plan prior to the date hereof, in accordance with the terms of the Deferred Compensation PlanShares;
(div) acquire acquire, directly or indirectly (whether pursuant to merger, stock or asset purchase purchase, joint venture or otherwise) ), in one transaction or series of related transactions any Person, any Equity Interests business of any Person, any division or business Equity Interests of any Person or all or substantially all of the assets of any Person for consideration having a fair market value in excess of $5.0 million in Person, or otherwise merge or consolidate with any single or series of related transactions or $15.0 million in the aggregateother Person;
(ev) sell, lease, license, encumber or otherwise dispose of any assets which are material to the Company and its Subsidiaries, taken as a wholeExcluded Assets, other than (iA) sales obsolete equipment and property no longer used in the operation of the U.S. Government Business, (B) licensing Company Intellectual Property in the ordinary course of business, consistent with past practice, and (C) assets which do not have a value of more than $1,000,000 individually or $5,000,000 in the aggregate and sold or licensed in the ordinary course of business, consistent with past practice;
(A) except under the Existing Credit Facilities in the ordinary course of business consistent with past practice, incur any Indebtedness if such Indebtedness would constitute an Excluded Liability, or (B) issue or sell any debt securities or warrants or other rights to acquire any debt securities to the extent such debt securities would constitute Excluded Liabilities;
(vii) (A) enter into any Exclusivity Arrangements or any affiliate transaction described in Section 4.21, or (B) enter into any Material Contract, except in the ordinary course of business consistent with past practice, or materially amend or terminate any Material Contract;
(viii) except as required by applicable Law or the terms of any Company Plan existing as of the date of this Agreement; (A) increase the compensation or fringe benefits of any director, officer, Principal or employee of the Company (with respect to the U.S. Government Business) or any U.S. Government Subsidiary (other than increases in salary of employees who are not officers in the ordinary course of business or the payment of accrued or earned but unpaid bonuses, including for new hires and promotions), (B) grant or alter the terms of any severance, retention or termination pay or benefit to any director, officer, Principal or key employee of the Company (with respect to the U.S. Government Business) or any U.S. Government Subsidiary (other than (x) payment in the in the ordinary course of business consistent with past practice to any employee whose employment is terminated between the date hereof and the Closing Date and (y) newly hired directors, officers and Principals receiving the benefits of the Company’s standard severance plan as in effect on the date of this Agreement), (C) establish, adopt, enter into, amend or terminate any Company Plan or any Contract that would be a Company Plan if it were in existence as of the date of this Agreement, (D) transfer the employment of any Company Employee to the Other Business or transfer the employment of any employee of the Other Business to the Company or any of the U.S. Government Subsidiaries, (E) waive any notice requirement under the Officer Retirement Policy or amend its Officer Retirement Policy, or (F) except as set forth in Section 6.1 of the Company Disclosure Schedule, terminate the employment of any Company Employee that is a Company Stockholder as of the date hereof;
(ix) change the Company’s methods of accounting in effect at March 31, 2007, except as required by changes in GAAP or U.S. Government cost accounting regulations;
(A) except for the payment of any deductible under an existing insurance policy with respect to a Claim that is being settled by such insurance company, settle, pay, compromise or discharge, any Claim (other than with respect to Tax liabilities, which are covered by clause (xi) below) that (x) requires any payment by the Company (if such payment obligation would constitute an Excluded Liability if not paid) or any U.S. Government Subsidiary in excess of $1,000,000 individually or $5,000,000 in the aggregate or (y) involves any restrictions on the conduct of the U.S. Government Business or other equitable remedies that adversely affect the U.S. Government Business or (B) forgive, settle, pay, compromise or discharge any Claim against the Company or any U.S. Government Subsidiary with respect to or arising out of the Transactions;
(xi) (A) make or change any material Tax election, (B) enter into any settlement or compromise of any Tax liability that could result in the payment by the Company and/or any Company Subsidiary of more than $4,000,000 individually or $12,000,000 in the aggregate or claim for any material Tax refund or (C) enter into any closing agreement relating to any material Tax;
(xii) fail to pay or satisfy in the ordinary course of business consistent with past practice any material liability or obligation of the Company or any Company Subsidiary to the extent such liabilities or obligations would constitute Excluded Liabilities (other than any such liability that is being contested in good faith); and
(xiii) agree to do any of the foregoing.
(b) Buyer Parent, Buyer and Merger Sub acknowledge and agree that (i) nothing contained in this Agreement shall give Buyer Parent, Buyer or Merger Sub, directly or indirectly, the right to control or direct the Company’s or the U.S. Government Subsidiaries’ operations prior to the Effective Time, and (ii) equipment and property no longer used in prior to the operation Effective Time, each of the Company's business, (iii) assets related to discontinued operationson the one hand, and (iv) contributions or Buyer Parent, Buyer and Merger Sub, on the other transfers hand, shall exercise, consistent with the terms and conditions of assets to any Joint Venture permitted by Section 6.1(d) hereof;this Agreement, complete control and supervision over their respective operations.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Booz Allen Hamilton Holding Corp)
Company Interim Operations. Except The Company covenants and agrees as set forth in the Company -------------------------- Disclosure Schedule or as otherwise expressly contemplated herebyto itself and each of its Subsidiaries that, without the prior consent of Acquiror (which consent shall not be unreasonably withheld or delayed), from after the date hereof until and prior to the Effective Time, the Company shall, Time (unless Parent shall otherwise approve in writing and shall cause each of its Material Subsidiaries to, conduct their business in all material respects in the ordinary course consistent with past practice (with such changes as the Company determines in good faith are necessary or advisable with respect to (w) changes in U.S. or global economic, industry or political conditions, (x) changes in U.S. or global financial markets or conditions, (y) any generally applicable change in Law or interpretation of any thereof and/or (z) the announcement of this Agreement or the transactions contemplated hereby or the Company's performance of its obligations under this Agreement and compliance with the covenants set forth herein), and shall use commercially reasonable efforts to (i) preserve intact its present business organization, (ii) maintain in effect all material Permits that are required for the Company or such Material Subsidiary to carry on its business, (iii) keep available the services of its present key officers and employees, and (iv) preserve existing relationships with its material customers, lenders, suppliers and others having material business relationships with it. Without limiting the generality of the foregoing, except as set forth in the Company Disclosure Schedule or as otherwise expressly contemplated by this Agreement, from the date hereof until the Effective Time, without the prior consent ) or as disclosed in Section 6.1 of Acquiror, the Company shall not, nor shall it permit any of its Subsidiaries, directly or indirectly, toDisclosure Letter:
(a) amend its and its Subsidiaries' business shall be conducted in the Companyordinary and usual course, consistent with past practice (it being understood and agreed that nothing contained herein shall permit the Company to enter into or engage in (through acquisition, product extension or otherwise) the business of selling any products or services materially different from existing products or services of the Company and its Subsidiaries or entering into or engaging in new lines of business without Parent's or any Subsidiary's certificate of incorporation or by-laws (or equivalent organizational documentsprior written approval), and, to the extent consistent therewith, it and its Subsidiaries shall use their respective best efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, reinsurers, distributors, agents, regulators, creditors, lessors, employees and business associates;
(b) it shall not (i) issue, sell, pledge, dispose of or encumber any capital stock owned by it in any of its Subsidiaries except in connection with the conversion of (x) the Preferred Shares (and the simultaneous conversion of the Depositary Shares), (y) the Security Units and (z) the Class B Shares, as described in Section 6.14, Section 6.15, and the Voting Agreement, respectively; (ii) amend its charter or bylaws or comparable governing instruments; (iii) split, combine or reclassify any its outstanding shares of capital stock of the Company or amend the terms of any rightsstock; (iv) authorize, warrants or options to acquire its securities, (ii) declare, set aside or pay any dividend or other distribution (whether payable in cash, stock or property or any combination thereof) in respect of any capital stock other than dividends from its Equity Interestsdirect or indirect wholly-owned Subsidiaries and other than regular quarterly cash dividends paid by the Company not in excess of $0.15 per share and regular dividends and distributions on the Preferred Shares and the Security Units pursuant to the terms thereof; or (v) repurchase, redeem or otherwise acquire, except in connection with the Stock Plans and the conversions referred to in clause (i) of this Section 6.1(b), or (iii) redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire permit any of its securities Subsidiaries to purchase or otherwise acquire, any rights, warrants or options to acquire shares of its securities, except for ordinary course dividends by Company Subsidiaries or, with respect to clause (iii) only, pursuant to the existing terms of any Company Employee Plan or Foreign Plan or any agreement executed pursuant thereto;
(c) issue, deliver, sell, or authorize the issuance, delivery or sale of, its Equity Interests stock or any securities convertible into or exchangeable or exercisable for any shares of its stock;
(c) neither it nor its Subsidiaries shall (i) issue, sell, pledge, dispose of or encumber any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights or agreements of any rights, warrants or options kind to acquire, any shares of its Equity Interestscapital stock of any class or any Voting Debt or any other property or assets (other than Shares issuable pursuant to options outstanding on the date hereof under the Stock Plans or upon conversion of the Preferred Shares (and the simultaneous conversion of the Depositary Shares), other thanthe Security Units or the Class B Shares, (i) as described in connection with directors' qualifying sharesSection 6.14, Section 6.15 and the Voting Agreement, respectively; or (ii) other than in the issuance ordinary and usual course of Company Shares upon business, transfer, lease, license, guarantee, sell, mortgage, pledge, dispose of or encumber any other property or assets (including capital stock of any of its Subsidiaries) or incur or modify any material indebtedness or other liability; or (iii) incur any long-term indebtedness (other than replacement debt as it matures) in excess of $250 million, incur any short-term indebtedness which is reflected on the exercise of stock options granted prior to the date hereof or Company's balance sheet (as determined in accordance with their present terms, and (iiiU.S. GAAP) at the issuance of Company Shares in exchange for CBRE Stock Fund Units allocated under the Deferred Compensation Plan prior to the date hereof, in accordance with the terms end of the Deferred Compensation Planfinancial quarter in which such short-term indebtedness was incurred; or (iv) make or authorize or commit for any capital expenditures other than in amounts less than $25 million in the aggregate or, by any means, make any acquisition of, or investment in, assets or stock of any other Person or entity (other than in the ordinary course of business) in excess of $50 million; provided, however, that no such acquisition shall be of a controlling interest in any other Person;
(d) acquire (whether pursuant to mergerneither it nor any of its Subsidiaries shall terminate, stock establish, adopt, enter into, make any new, or asset purchase accelerate the vesting or otherwise) in one transaction payment of any existing, grants or series of related transactions any Personawards under, amend or otherwise modify, any Equity Interests of any Person, any division or business of any Person or all or substantially all of the assets of any Person for consideration having a fair market value in excess of $5.0 million in any single or series of related transactions or $15.0 million in the aggregate;
(e) sell, lease, encumber or otherwise dispose of any assets which are material to the Company Compensation and its Subsidiaries, taken as a whole, other than (i) sales Benefit Plans except in the ordinary course of business consistent with past practicepractice or as may be required by law, or contractual obligations in effect as of the date of this Agreement, or as contemplated by this Agreement, or increase the salary, wage, bonus or other compensation of any employees other than normal base wage and base salary increases in the ordinary and usual course of business;
(e) neither it nor any of its Subsidiaries shall (i) settle or compromise any material claims or litigation; (ii) pay, discharge, settle or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction of claims, liabilities or obligations in the ordinary and usual course of business and within the amounts reflected or reserved on the most recent consolidated financial statements contained in the Company Reports prior to the date hereof; or (iii) except in the ordinary and usual course of business, modify, amend or terminate any of its material Contracts or waive, release or assign any material rights or claims;
(f) neither it nor any of its Subsidiaries shall make any material Tax election or permit any insurance policy naming it as a beneficiary or loss-payable payee to be canceled or terminated except in the ordinary and usual course of business;
(g) neither it nor any of its Subsidiaries shall enter into any agreement containing any provision or covenant limiting in any material respect the ability of the Company or any Subsidiary or affiliate to (i) sell any products or services of or to any other person, (ii) equipment and property no longer used engage in the operation any line of the Company's business, business or (iii) assets related compete with or to discontinued operations, and obtain products or services from any person or limiting the ability of any person to provide products or services to the Company or any of its Subsidiaries or affiliates;
(ivh) contributions neither it nor any of its Subsidiaries shall take any action that would cause any representation or other transfers warranty of assets the Company herein to become untrue in any Joint Venture permitted by Section 6.1(dmaterial respect; and
(i) hereof;neither it nor any of its Subsidiaries shall authorize or enter into an agreement to do any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement (American International Group Inc)
Company Interim Operations. Except as set forth in the Company -------------------------- Disclosure Schedule or as otherwise expressly contemplated hereby, without the prior consent of Acquiror (which consent shall not be unreasonably withheld or delayed), from the date hereof until the Effective Time, the Company shall, and shall cause each of its Material Subsidiaries to, conduct their business in all material respects in the ordinary course consistent with past practice (with such changes as the Company determines in good faith are necessary or advisable with respect to (w) changes in U.S. or global economic, industry or political conditions, (x) changes in U.S. or global financial markets or conditions, (y) any generally applicable change in Law or interpretation of any thereof and/or (z) the announcement of this Agreement or the transactions contemplated hereby or the Company's performance of its obligations under this Agreement and compliance with the covenants set forth herein), and shall use commercially reasonable efforts to (i) preserve intact its present business organization, (ii) maintain in effect all material Permits that are required for the Company or such Material Subsidiary to carry on its business, (iii) keep available the services of its present key officers and employees, and (iv) preserve existing relationships with its material customers, lenders, suppliers and others having material business relationships with it. Without limiting the generality of the foregoing, except as set forth in the Company Disclosure Schedule or as otherwise expressly contemplated by this Agreement, from the date hereof until the Effective Time, without the prior consent of Acquiror, the Company shall not, nor shall it permit any of its Subsidiaries, directly or indirectly, to:
(a) amend the Company's or any Subsidiary's certificate of incorporation or by-laws (or equivalent organizational documents);
(i) split, combine or reclassify any shares of capital stock of the Company or amend the terms of any rights, warrants or options to acquire its securities, (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 Equity Interests, or (iii) redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any of its securities or any rights, warrants or options to acquire its securities, except for ordinary course dividends by Company Subsidiaries or, with respect to clause (iii) only, pursuant to the existing terms of any Company Employee Plan or Foreign Plan or any agreement executed pursuant thereto;
(c) issue, deliver, sell, or authorize the issuance, delivery or sale of, its Equity Interests or any securities convertible into or exercisable for, or any rights, warrants or options to acquire, its Equity Interests, other than, (i) in connection with directors' qualifying shares, (ii) the issuance of Company Shares upon the exercise of stock options granted prior to the date hereof or in accordance with their present terms, and (iii) the issuance of Company Shares in exchange for CBRE CBC Stock Fund Units allocated under the Deferred Compensation Plan prior to the date hereof, in accordance with the terms of the Deferred Compensation Plan;
(d) acquire (whether pursuant to merger, stock or asset purchase or otherwise) in one transaction or series of related transactions any Person, any Equity Interests of any Person, any division or business of any Person or all or substantially all of the assets of any Person for consideration having a fair market value in excess of $5.0 million in any single or series of related transactions or $15.0 million in the aggregate;
(e) sell, lease, encumber or otherwise dispose of any assets which are material to the Company and its Subsidiaries, taken as a whole, other than (i) sales in the ordinary course of business consistent with past practice, (ii) equipment and property no longer used in the operation of the Company's business, (iii) assets related to discontinued operations, and (iv) contributions or other transfers of assets to any Joint Venture permitted by Section 6.1(d) hereof; provided, however, that the consent of Acquiror to do any of the foregoing shall not be unreasonably withheld;
(f) (i) (A) incur any indebtedness for borrowed money, except to fund working capital in the ordinary course consistent with past practice under the Company's existing credit facilities, (B) issue or sell any debt securities (except intercompany debt securities) or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, (C) make any loans, advances (other than to employees of and consultants to the Company in the ordinary course of business) or capital contributions to, or, except as permitted by 6.1(d), investments in, any other Person, other than to the Company or any Subsidiary of the Company or (D) assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any Person (other than obligations of Subsidiaries and the endorsements of negotiable instruments for collection in the ordinary course of business consistent with past practice), or (ii) enter into or materially amend any contract, agreement, commitment or arrangements to effect any of the transactions prohibited by this Section 6.1(f);
(g) except in the ordinary course of business consistent with past practice, (i) materially amend, modify or terminate any material contract, agreement or arrangement of the Company or any of its Material Subsidiaries or (ii) otherwise waive, release or assign any material rights, claims or benefits of the Company or any of its Material Subsidiaries thereunder; provided, however, that the consent of Acquiror to do any of the forgoing shall not be unreasonably withheld;
(i) except as required by Law or any existing agreement, increase the amount of compensation of any director or executive officer of the Company, (ii) except as required by Law, an agreement existing on the date hereof or pursuant to a Company severance policy existing on the date hereof, grant any severance or termination pay to any director or senior officer of the Company or any Material Subsidiary, (iii) adopt any additional material employee benefit plan or (iv) except as may be required by Law or as necessary to comply with the terms of this Agreement, amend in any material respect any Company Employee Plan or Foreign Plan; provided, however, that the consent of Acquiror to do any of the forgoing shall not be unreasonably withheld;
(i) materially change the Company's methods of accounting in effect at September 30, 2000, except as required by changes in GAAP or by Regulation S-X of the Exchange Act, as concurred in by its independent public accountants; provided, however, that the consent of Acquiror to do any of the forgoing shall not be unreasonably withheld;
(i) settle, pay or discharge, any litigation, investigation, arbitration, proceeding or other claim that is material to the business, financial condition or results of operations of the Company and its Subsidiaries, taken as a whole or (ii) settle, pay or discharge any Claim against the Company with respect to or arising out of the transactions contemplated by this Agreement;
(k) other than in the ordinary course of business consistent with past practice, (i) make any material Tax election or take any position on any Company Return filed on or after the date of this Agreement or adopt any method therein that is materially inconsistent with elections made, positions taken or methods used in preparing or filing similar returns in prior periods, (ii) enter into any settlement or compromise of any material Tax liability that in either case is material to the business of the Company and its Subsidiaries, taken as a whole, (iii) file any amended Company Return with respect to any material Tax, (iv) change any annual Tax accounting period, (v) enter into any closing agreement relating to any material Tax or (vi) surrender any right to claim a material Tax refund;
(l) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger); and
(m) agree or commit to do any of the foregoing; provided that the limitations set forth in Sections 6.1(b) through 6.1(g) and Section 6.1(l) shall not apply to any action, transaction or event occurring exclusively between the Company and any Company Subsidiary or exclusively between any Company Subsidiaries.
Appears in 1 contract
